This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.
Appeal from: Superior Court, Windham Civ. Division. DOCKET NO. 114-3-11 Wmcv. Trial Judge: Mary Miles Teachout.
Reiber, C.J., Dooley and Skoglund, JJ.
In the above-entitled cause, the Clerk will enter:
Petitioner appeals orders of the superior court, civil division, denying his motion for summary judgment and granting the State's motion for summary judgment with respect to his petition for post-conviction relief (PCR). We affirm.
Following a confrontation with several firefighters who entered his property in response to a reported brush fire, petitioner was charged in 2006 with impeding a public officer, in violation of 13 V.S.A. § 3001. A jury convicted petitioner of the offense after a three-day jury trial in November 2009. Petitioner received a sentence of twenty-nine-to-thirty days to serve. In January 2011, this Court affirmed defendant's conviction. State v. Chandler, 189 Vt. 649 (Vt. 2011) (unpub. mem.), https://www.vermontjudiciary.org/LC/ unpublishedeo.aspx.
In March 2011, petitioner filed a PCR petition and sought extraordinary relief, alleging ineffective assistance of counsel at trial. He alleged that his trial counsel, Matthew Branchaud: (1) left a voicemail message on petitioner's telephone shortly before the trial demonstrating his bias toward petitioner; (2) failed to object to the State's clearly defective information; (3) failed to obtain from his predecessor counsel exculpatory evidence that would have bolstered petitioner's defense had the evidence been admitted at trial; (4) failed to object to a jury instruction that substituted " public officers" for " civil officers" ; and (5) failed to object to the prosecutor's statement during closing argument that petitioner had lied at trial. The superior court dismissed the petition for lack of jurisdiction, but in February 2013 this Court reversed that ruling and remanded the matter for further consideration. In re Chandler, 2013 VT 10, 193 Vt. 246, 67 A.3d 261.
In April 2013, petitioner filed a motion for summary judgment. The State responded by arguing that material facts were in dispute and that petitioner could not prove his trial counsel's ineffective assistance without expert testimony. That same month, the superior court issued a scheduling order that, among other things, required petitioner to disclose by May 15, 2013 all expert witnesses he expected to call. In June 2013, the State filed a motion for summary judgment, asserting that petitioner had failed to disclose an expert witness to support his claims of ineffective assistance of counsel. On September 5, 2014, the superior court denied petitioner's motion for summary judgment, concluding that were disputed issues of material fact. Regarding the State's motion for summary judgment, the court concluded that expert testimony was not needed for a jury to determine whether petitioner's trial counsel was biased against petitioner, but that, irrespective of any finding of bias, petitioner still had to prove that his trial counsel's performance fell below an objective standard of professional norms and that, but for the deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Accordingly, the court scheduled oral argument to give the parties an opportunity to address whether expert testimony was required to support petitioner's claims of ineffective assistance of counsel.
Following a hearing at which the parties presented oral argument, the superior court issued a decision granting the State summary judgment. The court examined all of petitioner's specific allegations of ineffective assistance of counsel and determined that each of them required an expert criminal defense attorney familiar with prevailing professional norms to testify about the standard of care required of an attorney under the circumstances of this case. The court further concluded that expert testimony was needed not only to address whether the actions of petitioner's trial counsel fell below an objective standard of professional norms but also whether, assuming a deficient performance, the outcome of the trial would have been different with competent representation.
On appeal, petitioner contends that the ineffectiveness of his trial counsel was so obvious that it could be understood by lay persons without the benefit of expert testimony. In so arguing, he relies primarily on his attorney's pretrial voicemail suggesting an intent to lose the case because petitioner was not paying his bill for legal services and his attorney's conduct at trial, particularly his closing argument, which he claims made it apparent to everyone in the courtroom that the attorney was deliberately trying to lose the case.[*]
The law in this area is well-settled. A petitioner claiming ineffective assistance of counsel must demonstrate by a preponderance of the evidence that: " (1) his counsel's performance fell below an objective standard of performance informed by prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the proceedings would have resulted in a different outcome." In re Grega, 2003 VT 77, ¶ 7, 175 Vt. 631, 833 A.2d 872. We are " not permitted to judge from hindsight whether tactical decisions are ultimately successful in determining claims of attorney competence; rather, we must look to whether such decisions were within the range of competence demanded of attorneys in a criminal case at that time." In re Mecier, 143 Vt. 23, 32, 460 A.2d 472 (1983). " Only in rare circumstances will ineffective assistance of counsel be presumed without expert testimony." Grega, 175 Vt. 631, 2003 VT 77, ¶ 16, 833 A.2d 872. Expert testimony is required except in instances " [w]here a professional's lack of care is so apparent that only common knowledge and experience are needed to comprehend it." Estate of Fleming v. Nicholson, 168 Vt. 495, 497-98, 724 A.2d 1026 (1998).
In arguing that he did not need expert testimony to support his PCR petition, petitioner cites first and foremost his allegation that his trial attorney left a voicemail shortly before the trial demonstrating bias toward him. Apparently, the attorney was angry about not having received compensation from Chandler for his services. In his complaint, petitioner indicates that the attorney stated, " f__ing money b__. . . f__ ing Charlie Chandler . ... [and] going to go to jail." As noted, the trial court ruled that no expert testimony was needed for a jury to determine that these statements demonstrated bias against petitioner, but that, to prevail on his PCR petition, petitioner still had to demonstrate that his trial counsel's performance at trial was below the standard of prevailing norms and that there is a reasonable probability that, but for his counsel's deficient performance, the outcome of his trial would have been different. We agree with this analysis. To be sure, the alleged pretrial comments by trial counsel are outrageous. But unless petitioner is able to satisfy both prongs of the ineffective-assistance-of-counsel test, " 'it cannot be said that the conviction or ... sentence resulted from a breakdown in the adversary process that renders the result unreliable.' " Grega, 175 Vt. 631, 2003 VT 77, ¶ 7, 833 A.2d 872 (quoting Strickland v. Washington, 466 U.S. 668, 687, ...