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In re Carpenter

Supreme Court of Vermont

August 31, 2018

In re Michael L. Carpenter

          On Appeal from Superior Court, Bennington Unit, Civil Division John W.Valente, J.

          Adele V. Pastor, Barnard, for Petitioner-Appellant.

          David Tartter, Deputy State's Attorney, Montpelier, for Respondent-Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton JJ., and Morris, Supr. J. (Ret.), Specially Assigned

          EATON, J.

         ¶ 1. The central question in this appeal is whether the collateral bar rule precludes a challenge to a facially invalid, emergency, ex parte, relief-from-abuse (RFA) order in the context of a prosecution for violation of that order. Arguing that the State has not established an abuse of the writ, petitioner appeals the dismissal of his second petition for post-conviction relief (PCR). Because we conclude the collateral bar rule applies, we affirm.

         ¶ 2. The relevant history is undisputed. In April 2011, having been charged with three felonies and six misdemeanors, petitioner pled guilty to one felony-violation of an abuse-prevention order (VAPO)-and five misdemeanors as part of a plea agreement. The felony VAPO charge was based on a telephone call petitioner made to his ex-girlfriend in violation of an emergency, ex parte RFA order that, among other things, prohibited petitioner from contacting her. The court imposed a sentence of five-to-fourteen years to serve, which constituted an enhancement under the Habitual Offender Act, 13 V.S.A. § 11. On direct appeal of the sentence, this Court rejected petitioner's plain-error argument that the Habitual Offender Act did not authorize enhancing a minimum sentence beyond the underlying offense's statutory minimum. State v. Carpenter, 2013 VT 28, ¶¶ 4-6, 193 Vt. 484, 70 A.3d 1023.

         ¶ 3. Meanwhile, while his appeal was pending, petitioner filed his first PCR petition, which the PCR court stayed pending resolution of the appeal. After this Court upheld his sentence on appeal, petitioner filed another PCR that was consolidated with the first. Petitioner sought the same relief on the same grounds in both petitions. Petitioner represented himself at the merits hearing because the Defender General had determined that his claims lacked merit, and the PCR court allowed assigned counsel to withdraw. 13 V.S.A. § 5233(a)(3). In November 2014, the (first) PCR court rejected petitioner's various arguments and denied his petition.[1] Petitioner did not appeal.

         ¶ 4. Petitioner filed this second PCR petition in June 2015. Once again, the PCR court assigned counsel but then granted counsel's motion to withdraw. The PCR court determined that the bases for petitioner's second PCR petition were the same as those previously rejected on the merits and dismissed the petition as successive. On appeal, this Court reversed the dismissal and remanded the case for further proceedings. In re Carpenter, No. 2015-325, 2016 WL 7363915, at *1 (Vt. Dec. 16, 2016) (unpub. mem.), https://www.vermontjudiciary.org/sites/default /files/documents/eo15-325.pdf [https://perma.cc/325M-5S8Q]. We explained that the second PCR raised a new argument: that the no-contact provision in the ex parte, temporary RFA, which underlay petitioner's felony VAPO conviction, was invalid, rendering his indictment for violating that order defective. Id. at *2-3. In contrast to the statute authorizing final RFA orders, the statute authorizing ex parte, emergency RFA orders in effect at the time did not allow orders prohibiting contact with the RFA plaintiff.[2] Id. Petitioner argued that his trial counsel had been ineffective in failing to raise this issue. Id. Because petitioner had raised an issue not previously raised and resolved, we concluded that his second PCR petition was not successive. But, we noted that the State had not alleged, and the PCR court had not found, an abuse of the writ, and said that the court could consider on remand any abuse-of-the-writ claim made by the State. Id. at *3-4. We also directed the PCR court to assign counsel for petitioner on remand. Id.

         ¶ 5. On remand, the State moved to dismiss the petition for abuse of the writ. Because the Prisoner's Rights Office continued to have a conflict, the court ordered that substitute counsel be appointed and enter an appearance. After no lawyer entered an appearance by the assigned date, the court ordered Attorney Furlan-the attorney who had screened petitioner's first PCR petition and found no merit-to enter an appearance. On petitioner's behalf, Attorney Furlan argued in response to the State's motion to dismiss that his own prior neglect in failing to identify the issue raised by petitioner in this PCR petition constituted sufficient cause for petitioner's failure to raise the claim in his first PCR petition, and that petitioner was prejudiced by his counsel's ineffective assistance in failing to argue that the RFA no-contact provision was invalid. See In re Laws, 2007 VT 54, ¶ 20, 182 Vt. 66, 928 A.2d 1210 (explaining PCR abuse of writ cause-and-prejudice test).

         ¶ 6. The PCR court granted the State's motion to dismiss for abuse of the writ. The court assumed, without deciding, that petitioner had demonstrated sufficient cause for failing to raise the issue sooner but concluded that he had not met his burden to show proof of actual prejudice. The court reasoned that any argument in the VAPO prosecution that the no-contact provision in the underlying RFA was invalid would not have succeeded. The court explained that under the collateral bar rule petitioner could not collaterally challenge the validity of the underlying RFA order in his prosecution for felony violation of that order. The court concluded that no exception to this bar applied because petitioner had ample opportunity to challenge the order before violating it.

         ¶ 7. On appeal, petitioner argues that the PCR court erred by: (1) assigning him a lawyer who, on two previous occasions, determined after screening that his PCR claims lacked merit; and (2) concluding that his challenge to the validity of the provision of the underlying RFA that led to his conviction was precluded by the collateral bar rule.

         I. Assignment of Counsel

         ¶ 8. We agree with petitioner that the PCR court's assignment of a lawyer who had previously concluded that his claims had no merit was not the best practice, both because the assignment understandably undermined petitioner's confidence that assigned counsel would zealously pursue his claims and because counsel was required to emphasize the neglect of prio ...


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