Robert L. Sussman of Blodgett, Watts, Volk & Sussman, P.C., Burlington, for Petitioner-Appellee/Cross-Appellant.
William H. Sorrell, Attorney General, and Ultan Doyle, Assistant Attorney General, Montpelier, for Respondent-Appellant/Cross-Appellee.
Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.
¶ 1. In this post-conviction-relief (PCR) action, both petitioner and the State appeal from two March 2012 orders in which the superior court, civil division, vacated petitioner's aggravated stalking conviction after granting each party summary judgment on different aspects of the PCR petition. We reverse the court's decisions granting petitioner summary judgment and vacating the aggravated stalking conviction, affirm the court's grant of summary judgment to the State on petitioner's ineffective-assistance-of-counsel claim, and dismiss petitioner's PCR petition.
¶ 2. In April 2004, petitioner was charged with aggravated stalking based on an incident in which he entered the curtilage of a private residence and surreptitiously watched and photographed a thirteen-year-old girl through her bedroom window and other parts of the house. Following petitioner's arrest in the stalking incident, police obtained a warrant to search his house. The resulting search led to petitioner being charged in July 2004
with five counts of possession of child pornography.
¶ 3. In December 2004, petitioner filed a motion to dismiss the aggravated stalking charge on the grounds that the State could not make out a prima facie case as to every element of the charge. The trial court denied the motion, concluding in relevant part that the element in the stalking statute requiring the perpetrator's conduct to cause the victim fear or emotional distress did not require the conduct and the fear or emotional distress to be contemporaneous. In January 2005, petitioner filed a motion to suppress evidence found in his car, home, and camera, which the court denied.
¶ 4. In June 2005, petitioner pled guilty to one count of aggravated stalking and two counts of child pornography. He received a sentence of three to five years, all suspended but thirty days, to be followed by thirty days of work crew. In April 2008, petitioner was charged with a violation of the terms of his probationary sentence and, after a hearing, his probation was revoked.
¶ 5. In August 2009, petitioner filed a pro se PCR petition. Subsequently, he was appointed two different attorneys, who filed amended petitions in September 2009 and July 2010, respectively. In the latter amended petition, petitioner argued that there was no factual basis for the trial court to accept his guilty plea to the aggravated stalking charge because any fear that the victim felt as the result of his conduct was not contemporaneous with the conduct. He also argued that his trial counsel was ineffective because he: (1) failed to challenge the justification for the initial stop that led to his arrest; (2) failed to request a hearing on his motion to suppress evidence obtained pursuant to an allegedly defective search warrant; (3) allowed petitioner to plead guilty to multiple counts of child pornography; (4) failed to preserve a right to appeal with his plea; and (5) failed to engage an expert to examine how his camera operated.
¶ 6. In March 2011, the State filed a motion for summary judgment, arguing that there was a factual basis for petitioner's guilty plea on the aggravated stalking charge and that petitioner's trial counsel was not ineffective. In two March 2012 orders, the superior court granted the State's motion with respect to four of the five claims of ineffective assistance of counsel and scheduled a hearing on petitioner's claim that counsel was ineffective for failing to seek a hearing on his motion to suppress. The court denied the State's motion for summary judgment on whether there had been a factual basis to his plea on the aggravated stalking charge. The court then found no factual basis for the aggravated stalking charge and vacated the same. In making the latter determination, the court cited the absence of any evidence that the victim was aware of petitioner's presence and thus experienced fear or distress at the time petitioner engaged in the conduct that led to the stalking charge. In August 2012, after holding a hearing on the surviving ineffective-assistance-of-counsel claim, the court granted petitioner's PCR petition, incorporating by reference the March orders into its final judgment.
¶ 7. The State appeals, arguing that the victim's fear did not have to be contemporaneous with petitioner's stalking conduct, and thus the superior court erred in concluding that there was no factual basis to the aggravated stalking charge. In his cross-appeal, petitioner argues that the superior court erred in granting the State summary judgment on the issue of whether there was a ...