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In re Russo

Supreme Court of Vermont

May 24, 2013

In re Vito Russo

On Appeal from Superior Court, Windham Unit, Civil Division John P. Wesley, J.

Matthew Valerio, Defender General, and Seth Lipschutz and Emily B. Tredeau, Prisoners’ Rights Office, Montpelier, for Petitioner-Appellant.

Tracy Kelly Shriver, Windham County State’s Attorney, and Ian C. Sullivan, Legal Intern, Brattleboro, for Respondent-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.


¶ 1. Petitioner appeals a civil division order dismissing his post-conviction relief (PCR) petition for lack of jurisdiction. Petitioner sought to attack convictions for which his sentences had been completed, and the court concluded that petitioner was not “in custody under sentence” as required by 13 V.S.A. § 7131. Petitioner argued that he satisfied the custody requirement because although his sentences were completed they were used by the criminal division to hold him without bail pending trial on a different charge. Because petitioner has failed to allege that his pretrial incarceration was sufficiently linked to the convictions he seeks to attack, we conclude that petitioner failed to meet the jurisdictional requirements of the PCR statute, and affirm. [1]

¶ 2. The record reveals the following pertinent facts. In November 2002, petitioner was arrested following an altercation with a former mortgage holder. During the conflict, petitioner allegedly shot at the mortgage holder during a car chase. The information charged fourteen different counts, including felony aggravated assault. Petitioner was held without bail pending trial based on a finding that the weight of the evidence satisfied 13 V.S.A. § 7553a. Ultimately, the State dismissed one count; petitioner pleaded guilty to several violations of conditions of release, and a jury found petitioner guilty of aggravated assault, driving while intoxicated second offense (DUI), unlawful trespass, and driving with a suspended license (DLS).

¶ 3. In July 2003, the court sentenced petitioner to twelve to fifteen years for the aggravated assault. State v. Russo, 2004 VT 103, ¶ 5 n.5, 177 Vt. 394, 864 A.2d 655. The court added consecutive sentences for the DUI and DLS convictions, and the violations of conditions of release, which totaled an effective sentence of three to six years.

¶ 4. Petitioner appealed the aggravated-assault conviction and the sentence he received for all charges, and this Court affirmed. Id. ¶ 1. Petitioner then filed a PCR petition in the civil division seeking to overturn his aggravated-assault conviction based on the allegation that he received ineffective assistance of counsel. The trial court concluded that petitioner’s counsel deprived him of effective representation and granted his request for a new trial in January 2008. [2]

¶ 5. Meanwhile, in March 2008, on the aggravated-assault charge, the criminal division again held petitioner without bail pursuant to 13 V.S.A. § 7553a. Petitioner appealed the hold-without-bail order, and, following a de novo hearing before a single Justice, the order was affirmed in April 2008. See 13 V.S.A. § 7556(d) (granting right to second evidentiary hearing before a single justice when bail is denied under § 7553a); V.R.A.P. 9(b)(1). Petitioner did not further appeal that decision. 13 V.S.A. § 7556(e) (providing for review of denial by a three-justice panel); V.R.A.P. 9(b)(2).

¶ 6. On December 1, 2010, petitioner filed a handwritten PCR petition in the civil division. The petition referenced three different criminal dockets. Two of the cases, involving charges of unlawful trespass and failure to appear, were both dismissed with prejudice by the criminal division in 2005. The final docket listed was the 2002 multi-count case, which also included the aggravated-assault charge. Petitioner attacked his DLS conviction and his guilty pleas to violating conditions of release. His petition alleged that he received ineffective assistance of counsel, that his sentence exceeded the maximum authorized by law, and that there was newly discovered evidence that required that his sentence be vacated.

¶ 7. While he alleged that he was incarcerated at the time of filing his petition, he did not claim to still be serving a sentence for the challenged convictions. Indeed, based on the facts presented by petitioner, his sentence for those charges expired in July 2007. Petitioner alleged instead that the prior convictions were “used” to hold him without bail pending trial on the aggravated-assault charge.

¶ 8. The civil division dismissed the PCR petition on December 8, 2010. The court concluded that petitioner failed to demonstrate that he was “in custody under sentence, ” as required by 13 V.S.A. § 7131. The court acknowledged that petitioner alleged that the challenged convictions were used to hold him without bail pending retrial for felony aggravated assault, but concluded that a pretrial hold-without-bail order did not suffice to meet the statutory jurisdictional requirement. The court also noted that the civil division had no jurisdiction to evaluate the criminal division’s pretrial conditions-of-release decision. Having found no jurisdiction to grant relief, the court did not address petitioner’s request for counsel. See 13 V.S.A. § 7133 (“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”).

¶ 9. On December 15, 2010, petitioner filed a motion to reconsider, which primarily included requests for a hearing, appointment of counsel, and an opportunity to amend the petition. The court denied petitioner’s motion for ...

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