This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Windham Unit, Civil Division.
Attorney Michael Rose's motion for leave to withdraw is granted and new state-funded counsel will not be appointed. Petitioner, or other counsel on his behalf, shall file his brief and printed case within forty-five days of this order.
Michael Rose, St. Albans, for Petitioner-Appellant.
Joseph Bruyette, Pro se, Beattyville, Kentucky, Petitioner.
William H. Sorrell, Attorney General, and John R. Treadwell, Assistant Attorney General, Montpelier, for Respondent-Appellee.
Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Toor, Supr. J., Specially Assigned.
[¶1] Petitioner's attorney Michael Rose has filed a motion for leave to withdraw. This case calls upon us to apply 13 V.S.A. § 5233 as interpreted in In re Bailey, 2009 VT 122, 187 Vt. 176, 992 A.2d 276.
[¶2] Petitioner filed a petition for post-conviction relief (PCR) in the superior court, alleging ineffective assistance of counsel in his underlying criminal case because his lawyers induced him to reject a plea bargain for a much lower sentence " by misrepresenting the potential maximum sentencing exposure petitioner was facing at trial." He went on to allege that his counsel told him that he faced a maximum exposure at trial of twenty-five years, essentially the maximum in the plea bargain offer, but he was sentenced to a maximum sentence of eighty-five years.
[¶3] The superior court appointed a lawyer from the Prisoners' Rights Office of the Defender General to represent petitioner in that court. The appointed public defender accepted representation and proceeded to represent petitioner throughout the trial court proceeding.
[¶4] The State moved to dismiss the petition under 13 V.S.A. § 7134 because it was " a second or successive motion for similar relief on behalf of the same prisoner." The public defender answered that the case did not fit within the statute because the theory on which this petition was based had not been raised in earlier PCR petitions because it was not available at the time of the earlier petitions. The State responded that the theory had always been available, and the Supreme Court precedent on which petitioner relied, Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), did not establish any new rights or state a new constitutional rule.
[¶5] The superior court agreed and granted summary judgment for the State. Shortly thereafter, the public defender filed a notice of appeal on petitioner's behalf. The public defender filed a docketing statement in this Court, although conflict counsel then entered a notice of appearance. In a letter to petitioner, filed in this Court by petitioner, the public defender said she initially thought there were no grounds for appeal, but then said " I changed my opinion and filed a notice of appeal for you." She added, however, that since filing the notice of appeal she discovered the Defender General's office had a conflict of interest so the case had been assigned to conflict counsel.
[¶6] The first assigned conflict counsel withdrew because her firm had done a merits review for the Defender General on petitioner's ineffective-assistance-of-counsel claim in connection with a prior PCR action. Counsel concluded that the firm's prior negative merits review created a conflict of interest. The case was then assigned to attorney Michael Rose.
[¶7] Attorney Rose filed a motion for leave to withdraw, citing Vermont Rule of Professional Conduct 3.1 and Bailey . Because it became clear during the argument on that motion that the Defender General had not gone through the procedure it typically goes through before seeking leave to withdraw on the basis cited by Attorney Rose, we invited the Defender
General to present its position on the motion. The Defender General responded with a letter representing that an attorney retained to review petitioner's case agreed with the Defender General's determination that the appeal issues " lack merit." The Defender General further represented that continued representation of petitioner would constitute a violation of the Vermont Rules of Professional Conduct and the Vermont Rules of Civil Procedure, and accordingly declined assignment pursuant to 13 V.S.A. § 5233.
[¶8] Petitioner makes several arguments on appeal, some of which are directly germane to Attorney Rose's motion, and some of which are more tangentially related. First, he argues that the counsel who reviewed the case for the Defender General did an inadequate review. Petitioner does not deny that the legal theory upon which his ineffective-assistance-of-counsel claim was based -- that counsel was ineffective in the context of advising him concerning a plea agreement -- was available in Vermont at the time of his prior PCR claims. See State v. Bristol, 159 Vt. 334, 337, 618 A.2d 1290, 1292 (1992) ( " Because the plea bargain stage is critical to a criminal proceeding, fundamental attorney error at that stage may invalidate a conviction." ). However, he argues that PCR counsel in his prior PCR claims were themselves ineffective and failed to raise the claim, so that barring him from raising the claim in a successive petition is improper here. See Martinez v. Ryan, ___ U.S. ___, ___, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012) (" Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." ). He also argues that insofar as the Defender General's office has a conflict in his case, an independent attorney retained by the Defender General likewise is conflicted. Finally, petitioner argues that we should apply a pre-2004 version of 13 V.S.A. § 5233 in evaluating counsel's motion. We consider these arguments in the context of our review of counsel's motion.
[¶9] A convicted offender has no constitutional right to state-funded counsel in an appeal from a trial court judgment in a PCR case. See Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). We emphasize the limitation of this principle to an appeal of a judgment in a collateral proceeding because the U.S. Supreme Court has expressly left open the question of whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial. See Martinez, ___ U.S. at ___, 132 S.Ct. at 1315 (recognizing that the issue remained unresolved, and declining to reach it); Coleman, 501 U.S. at 755 (declining to decide whether there is a constitutional right to counsel " in those cases where state collateral review is the first place a prisoner can present a challenge to [a] conviction." );
see also State v. Lund, 168 Vt. 102, 105, 718 A.2d 413, 415 (1998) (stating that issues relating to conduct of counsel confined to post-conviction proceedings when record of trial proceedings insufficient to assess adequacy of representation).
[¶10] Vermont law does, however, provide a statutory right to state-funded counsel in a PCR proceeding. See 13 V.S.A. § 5233. Previously, the statutory right to counsel was available without reference to the merits of the claims raised in the PCR petition. See In re Gould, 2004 VT 46, ¶ ¶ 13-22, 177 Vt. 7, 852 A.2d 632. However, in 2004, the Legislature amended the statute to define the statutory right to state-funded counsel as a right:
[t]o be represented in any other postconviction proceeding 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 nonfrivolous argument for the extension, modification, ...