Chandler v. State

• Decision Date: 27 May 2016
• Docket Number: No. 15–386.,15–386.
• Citation: 148 A.3d 574,2016 VT 62
• Parties: Charles CHANDLER v. STATE of Vermont.
• Court: Vermont Supreme Court

148 A.3d 574

2016 VT 62

Charles CHANDLER

v.STATE of Vermont.

No. 15–386.

Supreme Court of Vermont.

May 27, 2016.

Charles Chandler, Pro Se, Newfane, Petitioner–Appellant.

William H. Sorrell, Attorney General, and Katherine Amestoy Martin, Assistant Attorney General, Montpelier, for Respondent–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

DOOLEY, J.

¶ 1. Plaintiff appeals from a dismissal of a “Petition for Extraordinary Relief” under Vermont Rule of Civil Procedure 75 and Vermont Rule of Appellate Procedure 21. Plaintiff argues that the trial court erred in construing and dismissing his pleading as a successive petition for post-conviction relief (PCR) that raises claims decided on the merits in an earlier PCR proceeding under 13 V.S.A. § 7134. He argues that the bar on successive applications does not apply to his extraordinary relief petition and, in any event, his petition is not a successive application because his claims regarding his unlawful conviction, particularly those alleging he has endured “severe collateral consequences” as a result of the conviction, have never been heard on the merits. We conclude that, despite plaintiff's characterization of his petition as a pleading pursuant to Rule 75 and Rule 21, the trial court correctly recognized it as a successive PCR action and we affirm the dismissal.

¶ 2. This is the fourth time that appeals related to plaintiff's conviction have reached this Court. In 2009, plaintiff was convicted of a felony, impeding a public officer, see 13 V.S.A. § 3001, stemming from an incident where he confronted firefighters responding to a reported brush fire on his property. We affirmed this conviction in January 2011. State v. Chandler, No. 2010–135, 2011 WL 4974829 (Vt. Jan. 27, 2011) (unpub. mem.), https://www.vermontjudiciary.org/LC/unpublishedeo.aspx. In March 2011, plaintiff filed a PCR petition seeking relief from his 2009 conviction on ineffective-assistance-of-counsel grounds. Specifically, plaintiff alleged that his trial counsel failed to effectively represent him in the criminal case because of a fee dispute and made prejudicial omissions or errors, including failing to object to the State's information, the jury instructions, and the prosecution's closing statement and declined to present exculpatory evidence. As a result, plaintiff alleged that his conviction was unlawfully obtained. The trial court initially dismissed plaintiff's petition on the ground that it was moot because he was no longer in custody under sentence. We reversed that decision, holding that the case was not moot, and remanded for consideration of the merits. In re Chandler, 2013 VT 10, ¶ 24, 193 Vt. 246, 67 A.3d 261.

¶ 3. On remand, following oral argument, the trial court granted the State's motion for summary judgment, concluding that expert testimony—which plaintiff failed to provide—was necessary to support all but one of his claims of ineffective assistance of counsel and that plaintiff could not show that the remaining claim—based on bias of counsel—affected the outcome of his trial. We affirmed this decision. Chandler v. State, No. 2014–375, 2015 WL 2383669 (Vt. May 14, 2015) (unpub. mem.), https://www.vermontjudiciary.org/LC/unpublishedeo.aspx.

¶ 4. Plaintiff filed the present “Petition for Extraordinary Relief” under Rule 21 and Rule 75 on May 27, 2015. Plaintiff avers his petition “is not a post conviction review of the ineffective assistance of counsel”; instead, he seeks relief for “specific unlawful acts and omission by the [plaintiff's] former attorney ... which violated the [plaintiff's] constitutional rights ... and the subsequent collateral consequences that the [plaintiff] must endure as a result of those unlawful acts and omissions.” The State moved to dismiss, arguing that despite the name, the petition was, in substance, a successive PCR raising the same issues as plaintiff's first PCR, and was therefore barred by 13 V.S.A. § 7134. The trial court granted this motion on September 30, 2015. This appeal followed.

¶ 5. While the petition was pending, plaintiff also filed a motion to disqualify the presiding trial judge stating he had been made aware of “certain statements and acts” she had “promised to commit” and accordingly, had listed her as a witness in three of his pending cases. The chief superior judge denied this motion, concluding plaintiff had proffered “no evidence” to support his claim of bias or prejudice on the part of the trial judge.

¶ 6. Plaintiff appears to raise six issues¹ on appeal. Of these, four relate to the merits of his ineffective-assistance-of-counsel claim, one challenges the trial court's characterization and dismissal of his motion as a subsequent PCR petition, and one avers the trial court ignored the collateral consequences of his felony conviction, which were never addressed on their merits. The State argues on appeal that the trial court correctly construed plaintiff's “Petition for Extraordinary Relief” as a PCR and that plaintiff is barred from relitigating the same ineffective-assistance-of-counsel claims raised and decided in his first PCR; that to the extent plaintiff raises new claims, they are barred by 13 V.S.A. § 7134 as an abuse of the writ² ; and that the chief judge did not abuse his discretion when he denied plaintiff's motion to disqualify the presiding trial judge. We agree with the State and affirm the trial court's dismissal of plaintiff's petition and denial of his motion to disqualify the trial judge.

¶ 7. Plaintiff's complaint in this case sought to vacate his felony conviction “because of the highly unusual circumstances that occurred during trial.” As detailed in the complaint the “highly unusual circumstances” all involved the action or inaction of his lawyer before and during the trial. Plaintiff recognized that he had formerly labeled these same actions and inactions as ineffective assistance of counsel in his earlier PCR³ so he labeled them in this case as breaches of the ethical responsibilities of the lawyer that led to his conviction. The trial court ruled in essence that, however labeled, the alleged actions and inactions of the lawyer were the same and could not be the basis for a new action because of the bar in 13 V.S.A. § 7134.

¶ 8. 13 V.S.A. § 7134 provides: “The court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” The “motion” is the statutory term for a PCR challenging a criminal sentence on the ground that it was imposed in violation of the constitution of the United States or the State of Vermont or other grounds not applicable here. See id. § 7131. Section 7134 bars relitigation of claims actually raised and decided on the merits in an earlier PCR. In re Towne, 2007 VT 80, ¶ 5, 182 Vt. 614, 938 A.2d 1205 (mem.); In re Laws, 2007 VT 54, ¶ 11, 182 Vt. 66, 928 A.2d 1210.

¶ 9. Plaintiff's first claim on appeal is that § 7134 does not apply because this action is not a PCR, but instead an independent action under Rule 21 and Rule 75, and plaintiff is not alleging ineffective assistance of counsel. We conclude that despite plaintiff's labeling, his motion was effectively a PCR petition and was properly dismissed by the trial court.

¶ 10. We essentially decided this case in In re Towne, 2007 VT 80, 182 Vt. 614, 938 A.2d 1205. In that case, an incarcerated plaintiff filed a motion for “Appropriate Relief, Pursuant to any Available Remedy, Including V.R.A.P. 21 ”. 2007 VT 80, ¶ 2. The trial court denied the motion under § 7134, holding that the issues raised by the plaintiff were raised in “both his direct appeal” and his “many post-conviction petitions.” Id. ¶ 3.

¶ 11. We affirmed. We concluded that the plaintiff's claims “[did] not clearly differ in substance from those already raised and ruled upon in [the plaintiff's] many prior petitions.” Id. ¶ 6. We rejected the plaintiff's argument that the trial court erred in construing the motion as a PCR petition rather than a motion for extraordinary relief under Rule 21 ; in particular, we noted that “apart from its title,” the motion “did not address Rule 21 in any way,” but instead “return[ed] quickly to [the] familiar ground” of the PCR petitions. Id. ¶ 7.

¶ 12. The instant case is substantially similar to Towne. As in Towne, plaintiff's motion references the requirements of Rule 75 and Rule 21 only in its title, a fact that is unsurprising given the rules' irrelevancy to his petition. Rule 21(a)(2) permits parties to present a complaint to this Court where “there is no adequate remedy under these rules or by appeal, or through proceedings for extraordinary relief in the superior court.” Plaintiff has not “engage[d] Rule 21 ” by explicitly or implicitly demonstrating that he has no remedy in either the appellate or trial courts. In re Towne, 2007 VT 80, ¶ 7, 182 Vt. 614, 938 A.2d 1205. Indeed, in his motion, he notes that he is “unable” to “refile his petition for post-conviction relief”—acknowledging that claims regarding the “unlawful acts and omissions” by his former attorney “normally ... would be reviewed in a PCR”—because the original petition was dismissed with prejudice. See State v. Russo, 2004 VT 103, ¶ 27, 177 Vt. 394, 864 A.2d 655 (concluding that ineffective assistance of counsel claims must be raised in PCR petition, not on direct appeal). By plaintiff's own admission then, he is “without adequate law to have his grievances heard” simply because of his exhaustion of available remedies under § 7134, rather than because no remedy was provided by law. Rule 75(a) permits review of “any action or failure or refusal to act by an agency of the state or a political subdivision thereof” provided “such review is otherwise available by law.” Plaintiff has identified no governmental action for review. Moreover, judicial review under Rule 75 is appropriate only “when legislation is silent on the mode of review.” Moran v. Vt. State Ret. Bd., 2015 VT 119, ¶ 12, 200 Vt. 354, 131...