This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
APPEALED FROM: Superior Court, Windsor Civ. Division. DOCKET NO. 290-6-11 Wrcv. Trial Judge: Robert P. Gerety, Jr.
Reiber, C. J., Dooley, and Skoglund, JJ.
In the above-entitled cause, the Clerk will enter:
Petitioner appeals pro se from the trial court's order granting summary judgment to the State on his petition for post-conviction relief (PCR). We affirm.
Petitioner commenced this action in June 2011 and moved for the appointment of a legal expert. The court granted petitioner's request in December 2011, and directed petitioner to identify his expert witness and the amount of the expert's fees by January 15, 2012. Petitioner failed to comply with this deadline. Nevertheless, at petitioner's request, the court extended the deadline to July 6, 2012. On that date, petitioner informed the court that he would not retain an expert witness, and he asked the court to set the matter for a merits hearing.
The State subsequently filed a motion for summary judgment accompanied by a statement of undisputed material facts. Petitioner did not file a timely response to the summary judgment motion. Instead, after the deadline had expired, petitioner requested additional time to respond. The court granted petitioner's request. Several weeks later, petitioner informed the court that he now wanted to hire an expert. The court gave petitioner until October 5, 2012 to respond to the motion for summary judgment, and it indicated that petitioner was free to retain a legal expert at his own expense and to include any expert opinions that he might obtain in his response to the summary judgment motion. In mid-September, petitioner filed a response to the summary judgment motion. The response did not include any expert opinions regarding the standard of care applicable to the attorneys who represented him in his criminal case.
The basic relevant facts are undisputed. In May 2006, petitioner was charged with two counts of first-degree aggravated domestic assault and one count of domestic assault. Counsel was appointed for petitioner. At his arraignment, petitioner was held without bail. Various motions were subsequently filed by trial counsel and denied. Trial began in September 2006, but a mistrial was declared. Trial was then postponed numerous times due to requests from both the State and petitioner's counsel. Petitioner's first attorney withdrew in late 2006, and a new attorney was appointed. This attorney also withdrew and was replaced by new counsel in early 2007. Petitioner's third attorney also withdrew, and a fourth attorney was appointed.
In May 2007, petitioner pled guilty to one count of first-degree aggravated domestic assault pursuant to a plea agreement. He was sentenced consistently with the plea agreement to incarceration for two to ten years, all suspended except one year to serve with credit for time served. Petitioner was placed on probation. In July 2010, petitioner pled guilty to a probation violation pursuant to a plea agreement. The court accepted the plea and admission of guilt, revoked probation and imposed the underlying sentence of two to ten years with credit for time served.
Turning to the instant PCR petition, the court found that petitioner sought post-conviction relief on various grounds, all of which boiled down to an allegation that his trial attorneys had not acted competently. The court found that all of these claims failed because petitioner was obligated, and had failed, to present expert testimony to show that conduct of his lawyers fell below the applicable standard of care for criminal defense lawyers. In the absence of admissible evidence in the form of an expert report or expert testimony that petitioner's lawyers fell below the applicable standard of care in their representation of petitioner, and in the absence of expert testimony that the outcome of the case would likely have been more favorable to petitioner had his attorneys handled the case differently, the court found that petitioner could not make out the essential elements of his claims. The court thus granted summary judgment to the State. This appeal followed.
Petitioner raises numerous arguments on appeal. According to petitioner, his ineffective-assistance-of-counsel claims are a " by-product" of his claims that his due process and other constitutional rights were violated. He focuses on the fact that he was held without bail. He cites language from a speedy trial motion filed by one of his trial attorneys, suggesting that counsel's argument shows that he was denied his right to a speedy trial and that he suffered prejudice as a result. He asserts that counsel's arguments constitute an " expert opinion" for purposes of his PCR showing that he received ineffective assistance of counsel. Petitioner also argues that the trial court erred in holding him without bail in his criminal case, and he faults his trial attorneys for either making a " meaningless effort" to have him released on bail or for withdrawing from representing him due to his insistence that counsel file bail requests. He also appears to raise other challenges to his trial counsels' performance, such as their decisions to withdraw from the case (and the court's allowance of their requests). Petitioner suggests that his guilty plea was coerced because he was being held without bail. Additionally, petitioner asserts that the court ignored two constitutional claims that he raised, which appear to be claims that counsel refused to protect his fundamental rights and that the trial court and this Court denied him the benefit of a presumption of innocence, equal protection, and otherwise violated his rights in holding him without bail. Finally, he asserts that the trial court did not follow Vermont Rule of Criminal Procedure 11 in accepting his guilty plea.
We review the court's summary judgment decision de novo, using the same standard as the trial court. In re Barrows, 2007 VT 9, ¶ 5, 181 Vt. 283, 917 A.2d 490. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; V.R.C.P. 56(a). With two exceptions discussed below, we agree with the trial court that all of petitioner's claims turn on an allegation that he received ineffective assistance of counsel. Petitioner failed to provide the expert evidence necessary to ...