Judge grants new trial for man convicted of sexual abuse

CLINTON — Post-conviction relief has been granted to a Clinton man convicted in 2014 of seven counts of sexual abuse and 60 counts of sexual exploitation of a minor.

District Court Judge Mark Cleve's April 2 ruling vacates all of Jason Boutwell's criminal convictions based on his his claim of ineffective counsel. Boutwell will be granted a new trial.

Boutwell, in his recasted and amended post-conviction application, made 10 allegations of ineffective assistance by his counsel, now-retired attorney Bruce Ingham. Boutwell asserted that he received ineffective assistance of counsel in his criminal case when Ingham failed to investigate the credibility of the alleged victim recanting prior accusations she had made against him, according to the order.

The order says that the alleged victim, who is now 17 years old, was 5 to 11 years old during the time period in the trial information. "Attorney Ingham testified that the Applicant had never told him about any alleged recantation, false accusation or of his mother's knowledge regarding the same," Cleve says in the order. "He further testified that if such a claim had been made he would have investigated it and pursued it as a potential defense to the offenses charged in the Trial Information."

The order says that Ingham's handwritten pretrial notes include an item that reads, "Mom false acc." Ingham said during the hearing that he had no independent recollection of the meeting with Boutwell besides the contents of the notes, and that he could not recall what the "Mom false acc" note meant, but agreed it could refer to an accusation.

The court concluded that the notation referred to knowledge of a false accusation by Boutwell's mother.

The alleged victim's mother was not called as a witness by either party at the post-conviction hearing, Cleve wrote in the order. The mother, in March 2014, pleaded guilty via an Alford plea to one count of child endangerment, an aggravated misdemeanor, and was convicted and sentenced for the offense.

The order says that Boutwell was charged by a trial information filed in September 2013. The case proceeded to a jury trial March 3, 2014, and the jury found Boutwell guilty on all counts charged March 5, 2014.

District Court Judge Stuart Werling, in April 2014, ordered Boutwell to serve up to 25 years in prison on seven counts of second-degree sexual abuse. Three counts were ordered to be served consecutively, and the remaining four counts were ordered to be served concurrently to the first three.

Werling sentenced Boutwell to up to 10 years in prison for each of 60 counts of sexual exploitation of a minor, production. The sentences imposed under three counts were to be served consecutively to each other but concurrently to the consecutive sentences for three counts of second-degree sexual abuse. The remaining 57 counts were ordered to be served concurrently to the first three counts.

The court's ultimate concern was the fundamental fairness of the proceeding from which the result is being challenged, Cleve says in the order. The court must consider whether the counsel's conduct undermined the proper functioning of the adversarial process to the extent that a trial cannot be relied on as having produced a just result.

A plaintiff relying on a specific act or omission to prove a claim of ineffective assistance of counsel has the burden of proving by a preponderance of the evidence that counsel failed to perform an essential duty and prejudice resulted, Cleve said in his ruling.

The second element of an ineffective assistance of counsel allegation requires that the plaintiff show counsel's failure to perform an essential duty resulted in prejudice, Cleve says. A plaintiff must prove that there is a reasonable probability that the result of the proceeding would have been different if it were not for counsel's unprofessional errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome.