On Appeal from Superior Court, Rutland Unit, Civil Division December Term, 2011 David A. Howard, J.
The opinion of the court was delivered by: Burgess, J.
In re Crannell (2011-039)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. ppellant Charles Crannell appeals the decision of the Rutland Civil Division that he is no longer entitled to an appointed attorney to handle his post-conviction relief (PCR) proceedings. Appellant's previously assigned counsel filed a notice of withdrawal under 13 V.S.A. § 5233(a)(3), based on lack of legal merit in the PCR, a withdrawal which must be honored under In re Bailey, 2009 VT 122, 187 Vt. 176, 992 A.2d 276. Bailey held that, pursuant to an amendment to the statute, upon the Defender General's determination that a PCR claim was frivolous for lack of merit, a petitioner had no statutory right to assigned counsel at public expense. Id. ¶¶ 14-17. Appellant first argues that, having filed his PCR petition before the Legislature enacted the amended version of § 5233 that was interpreted in Bailey, he has a vested right to counsel under the pre-amendment version of the statute and this Court's earlier decision in In re Gould, 2004 VT 46, 177 Vt. 7, 852 A.2d 632, superseded by statute, 13 V.S.A. § 5233(a). Gould interpreted the prior version of § 5233 to entitle PCR petitioners to publically assigned counsel regardless of the petition's merit. Id. ¶¶ 19-21.
¶ 2. Assuming that Bailey and the current § 5233 do control, appellant alternatively claims that the Defender General's Office waived its right to withdraw because it represented him in his PCR proceedings for nine years before seeking to do so. Finally, assuming the same, appellant asserts that because counsel is necessary for effective advocacy in PCR proceedings at the trial court level, this Court should read § 5233 to provide a right to assigned representation in such proceedings. Petitioner is correct that the old version of § 5233, as interpreted by Gould, still governs his right to assigned PCR counsel and grants him a statutory right to representation at his own, rather than the Defender General's, discretion. Accordingly, we reverse and remand.
¶ 3. Appellant was convicted of first-degree murder in 1995. His conviction was affirmed on direct appeal, and in 2001 he filed a PCR petition in Rutland Superior Court citing numerous grounds for relief, including the violation of his Fourth Amendment rights, ineffective assistance of counsel, prosecutorial misconduct and the violation of his right to due process under the Fourteenth Amendment. For close to the next nine years, appellant was represented by many different assigned counsels, through both the Defender General's Prisoners' Rights Office and through the Defender General's independent contractor system of assigned conflict counsel.
¶ 4. Throughout his PCR proceedings, appellant's representation sparked a series of skirmishes where appellant's various attorneys were either withdrawing or being replaced due to ethical conflicts or other reasons.*fn1 In April 2010, appellant's latest lawyer from the Prisoners' Rights Office filed a motion to withdraw under the current § 5233 based on the Defender General's Office's determination that appellant's PCR petition no longer raised any non-frivolous bases for relief. The trial court, citing Bailey, granted the motion and ordered that the case proceed on the merits with appellant representing himself. The court then granted permission for petitioner to file an interlocutory appeal, which this Court accepted.
¶ 5. Appellant's main argument, offered by amicus curiae, is that he has a vested right to representation in his PCR proceedings under the former version of § 5233, as applied by Gould. The Defender General's Office responds that the current § 5233, as interpreted by Bailey, controls, under which appellant's right to representation is subject to the Defender General's sole discretion. Which version of § 5233 governs this case, and by consequence whether appellant has an ongoing right to representation in his PCR proceedings, is a question de novo for this Court. See Breslin v. Synnott, 2012 VT 57, ¶ 8, ___ Vt. ___, ___ A.3d ___ ("We review legal questions . . . de novo."). We hold that the earlier version of § 5233 applies, by which appellant has a continued right to representation, the merits of the case aside, as explained in Gould. We remand this case for a consideration of appellant's counsel's motion to withdraw consistent with Gould and the principles set forth below.*fn2
¶ 6. At the time appellant filed his PCR motion in 2001, § 5233 entitled a needy person convicted of a serious crime to representation "in any . . . post-conviction proceeding that the attorney or the needy person considers appropriate." 13 V.S.A. § 5233(a)(3) (1998) (emphasis added), subsequently amended by 2003, No. 157 (Adj. Sess.) § 10. Gould held that this version of § 5233 provided a statutory right of representation simply requiring courts to appoint counsel for indigent PCR petitioners upon their request. 2004 VT 26, ¶¶ 13-14. The merit or frivolity of the case mattered not. See id. ¶ 20.
¶ 7. Following the 2004 decision in Gould, the Legislature amended § 5233 to limit indigents' right to representation in PCR proceedings to proceeding[s] which may have more than a minimal effect on the length or conditions of detention where the attorney considers the claims, defenses, and other legal contentions to be warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
13 V.S.A. § 5233 (emphasis added). As Bailey explained, the amendment to § 5233 "expressly conditions a [PCR] petitioner's entitlement to representation on counsel's assessment of the merit of the legal action." 2009 VT 122, ¶ 8.
¶ 8. When appellant filed his PCR petition in 2001, however, he had an unconditional right to representation under the then-existing § 5233. Gould, 2004 VT 46, ¶ 16. Under 1 V.S.A. § 214, amendment of a statute has no effect on "any right, privilege, obligation or liability acquired, incurred or accrued under the amended [statute] . . . prior to the effective date of the amendment." In other words, the amendment of a statute cannot retrospectively strip a person of a right enjoyed under the prior version of the statute. Applying § 214 here, appellant's right to representation under the former § 5233 vested, and remained vested, after the statute was amended in 2004. We therefore reverse the trial court's decision granting appellant's counsel's motion to withdraw under Bailey and ordering him to proceed pro se in his PCR proceedings.*fn3
¶ 9. The Defender General objects to this conclusion, arguing that appellant had no right to representation under § 5233 as determined in Gould, because the mandate of Gould did not take effect until after the Legislature's amendment to that section eliminating the vested right to counsel. As the Defender General points out, the opinion in Gould was filed on June 4, 2004, and under Vermont Rule of Appellate Procedure 41(a) an opinion's mandate takes effect twenty-one days after the entry of judgment. The amendment of § 5233 was signed on June 8, 2004, and was effective upon passage. 2003, No. 157 (Adj. ...