Appeal from Superior Court, Chittenden Unit, Civil Division
Robert A. Mello, J.
Matthew F. Valerio, Defender General, and Emily Tredeau,
Appellate Defender, Montpelier, and James T. Burke, Pro Se,
Camp Hill, Pennsylvania, for Petitioner-Appellant.
Tartter, Deputy State's Attorney, Montpelier, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Petitioner James Burke sought post-conviction relief (PCR)
alleging that his trial counsel, Attorney Daniel Maguire,
provided ineffective assistance because of a conflict of
interest. The PCR court denied petitioner's motion for
summary judgment and granted the State's motion for
summary judgment based on the court's determination that
Attorney Maguire did not provide ineffective counsel.
Petitioner appeals and, for the reasons below, we affirm.
2. Pertinent to this appeal are the circumstances surrounding
petitioner's representation by counsel at trial, which
were summarized by this Court in State v. Burke,
2012 VT 50, ¶¶ 2-13, 192 Vt. 99, 54 A.3d 500. We
briefly reprise the history here. A warrant for
petitioner's arrest for sexual assault was issued in July
2004; he was arrested and arraigned in October 2005; and his
trial commenced in May 2010. During the time between his
arraignment and trial, petitioner filed nearly 200 motions,
the vast majority of which were filed pro se in writing and
orally on the record. These included motions to disqualify
three trial court judges, a motion to disqualify a
prosecutor, and nineteen motions for sanctions. Petitioner
also expressed discontent with various appointed counsel at
multiple points in pretrial proceedings. During discovery, he
requested, was provided with, and then dismissed appointed
counsel. Then, midway through depositions in 2009, petitioner
once again requested and was provided with appointed counsel-
this time it was Attorney Maguire, who ultimately represented
petitioner at trial.
3. Throughout pretrial proceedings, the trial court
reprimanded petitioner many times for his disruptive language
and behavior-petitioner often insulted and cursed at his
appointed counsel, the state's attorney, and the court
during hearings. In April 2008, defendant allegedly
threatened the deputy state's attorney after a day of
depositions and was arrested for obstruction of justice.
During a hearing in 2009 when petitioner again sought to
dismiss his appointed counsel, the trial court questioned
whether petitioner was competent to proceed pro se. As the
judge observed: "He interrupted everyone, including the
judge, continuously. He strung together sentences without the
slightest pause as he worked himself into a frenzy and
remained in an excited state throughout the hearing."
Based in part on psychiatric evaluations in 2004 and 2006,
the trial court ultimately determined that petitioner was
competent to stand trial. However, it concluded that given
his previous misconduct, it would be "naive to expect
that [petitioner] would control himself were he to represent
himself during trial." And because the right to
self-representation is not absolute, the trial court found
that petitioner had forfeited his right to represent himself
through his continued disruptive behavior.
4. Which brings us to the issue on appeal. During jury draw,
outside of potential jurors' presence, Attorney Maguire
expressed his desire to withdraw as petitioner's counsel,
citing threats of physical violence to himself and his
[Petitioner] has filed and the Court has copies of numerous
letters to me-written letters to me and I have filed them
with the Court in which he has threatened me personally. He
has threatened my family. He has advised me that if I-that
when he gets out of jail, he will find my family and he will
kill me or them.
He has filed numerous lawsuits which are mostly a nuisance
but I do take seriously. I've had to retain counsel to
defend them. As part of those lawsuits, recently my father
died. . . . [Petitioner] filed a motion saying that it was a
lie my father didn't die.
I don't like [petitioner], Judge, and I know I don't
have to like my clients but we needed to respond to that so I
needed to submit a Death Certificate to prove that, in fact,
my father died.
. . . .
The Sheriff who is in the courtroom today . . . filed for me
an Affidavit which he related that [petitioner] had made
threats after one of the hearings last fall and that he felt
in his experience that [petitioner]'s threats were
credible and that they were concerning . . . .
I have no relationship with [petitioner] and maybe for
obvious reasons for those of you who are listening to him
today. . . . Those differences . . . [are] irreconcilable. My
view of the case differs from [petitioner].
. . . .
I have an ethical concern that I'm not so sure that I can
zealously represent him at a trial.
. . . .
What I spoke about with the Professional Conduct Board
attorney and I'm going to share it with you now is that
I'm not so sure that I want to see him out of jail.
. . . .
I don't believe that I can adequately represent him in
any scenario right now. I understand the Court wants to get
this case done but I feel like I'm sort of getting rolled
over here. I want to withdraw and I think based on the
history of this case he should be allowed to proceed pro se.
trial court denied Attorney Maguire's motion to withdraw,
but allowed a deputy sheriff, described as a legal assistant,
to be seated between Attorney Maguire and petitioner
throughout the trial.
5. Following a four-day jury trial in May 2010, petitioner
was convicted of sexual assault. After trial, Attorney
Maguire again moved to withdraw, which the trial court
granted. Petitioner appeared pro se for his presentence
investigation (PSI) interview and sentencing hearing. In
October 2010, petitioner was sentenced to eighteen to twenty
years to serve. This Court affirmed his conviction in June
2012. See Burke, 2012 VT 50.
6. Petitioner filed his pro se motion for postconviction
relief in February 2013. In March 2015, Attorney Paul Volk,
an expert appointed by the trial court and compensated by the
Defender General, filed an expert-opinion report with the PCR
court after an independent legal review wherein he explained
that he found ...