In re Michael L. Carpenter
Appeal from Superior Court, Bennington Unit, Civil Division
John W.Valente, J.
V. Pastor, Barnard, for Petitioner-Appellant.
Tartter, Deputy State's Attorney, Montpelier, for
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton JJ., and
Morris, Supr. J. (Ret.), Specially Assigned
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. 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.),
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. 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.
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 ...