Hart, In re, No. 97-059
| Docket Nº | No. 97-059 |
| Citation | 715 A.2d 640, 167 Vt. 630 |
| Case Date | March 25, 1998 |
| Court | United States State Supreme Court of Vermont |
Page 640
Motion for Reargument Denied
April 10, 1998.
Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
Petitioner appeals the Orange Superior Court's denial of his petition for post-conviction relief pursuant to 13 V.S.A. § 7131. He argues that the court erred when it allocated to him the burden of proving that he had not deliberately bypassed the opportunity to directly appeal an error made by the sentencing court in the application of Rule 32(c)(3). We affirm.
In 1992, petitioner was sentenced to serve twelve to twenty years in prison for the sexual assault of a minor, and this Court affirmed the conviction in State v. Hart, 161 Vt. 647, 643 A.2d 853 (1994). In 1996, petitioner filed a petition for post-conviction relief requesting the superior court to vacate his sentence and order resentencing. As grounds for relief, petitioner alleged: (1) that counsel at his sentencing hearing had been ineffective, and (2) that, in determining the sentence, the court improperly considered and relied upon information not previously disclosed to petitioner and his counsel. See V.R.Cr.P. 32(c)(3) ("sentencing court shall disclose to the defendant, his attorney, and the prosecution, all information submitted to it for consideration at sentencing").
Page 641
After a hearing on the merits, the superior court denied petitioner's claim of ineffective assistance of counsel. The superior court concluded, however, that the sentencing court did "consider and rely upon petitioner's violent history with his former wife ... without providing notice in the manner described under V.R.Cr.P. 32(c)(3)." Petitioner introduced no evidence to establish why he had not raised the Rule 32 issue in his direct appeal, although he did contend the record failed to show he had deliberately bypassed the opportunity. The State introduced no evidence on petitioner's bypass of the issue. The superior court concluded that petitioner had failed to satisfy his burden of showing that his failure to raise the claimed error on direct appeal was an "inadvertent waiver," and thus denied the petition. 1
Vermont's post-conviction relief statute, 13 V.S.A. §§ 7131-7137, permits "challenges to confinement ... [where] the sentence is subject to collateral attack," State v. Cooley, 135 Vt. 409, 411, 377 A.2d 1386, 1387 (1977), but is not a substitute for direct appeal. See In re Nash, 146 Vt. 259, 261, 499 A.2d 785, 786 (1985). Absent exigent circumstances, "collateral attack is barred if the movant deliberately bypassed the issue on appeal." In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981) (citing Chin v. United States, 622 F.2d 1090, 1092-93 (2d Cir.1980), and Berard v. Moeykens, 132 Vt. 597, 599-600, 326 A.2d 166, 168 (1974)). To allow an...
To continue reading
Request your trial
-
In re Carter, No. 2001-502 | 2001-526
...of the issues covered in that motion were raised in the district court or on direct appeal. ¶ 8. The State relies primarily on In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.), which held that petitioner in a post-conviction relief proceeding under 13 V.S.A. § 7131 has the burd......
-
In re Carter, No. 01-502
...of the issues covered in that motion were raised in the district court or on direct appeal. ¶ 8. The State relies primarily on In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.), which held that petitioner in a post-conviction relief proceeding under 13 V.S.A. § 7131 has the burd......
-
In re Carter, 2004 VT 21 (Vt. 2/27/2004), s. 2001-502 & 2001-526, September Term, 2002
...of the issues covered in that motion were raised in the district court or on direct appeal. ¶ 8. The State relies primarily on In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.), which held that petitioner in a post-conviction relief proceeding under 13 V.S.A. § 7131 has the burd......
-
Sprague v. Nally, 03-489.
...Accordingly, he has waived any claim that the court erroneously relied on those facts in granting the motion to dismiss. See In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.) (issues not raised on appeal are waived).2 We note, as well, that although Sprague made no formal reques......
-
In re Carter, No. 2001-502 | 2001-526
...of the issues covered in that motion were raised in the district court or on direct appeal. ¶ 8. The State relies primarily on In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.), which held that petitioner in a post-conviction relief proceeding under 13 V.S.A. § 7131 has the burd......
-
In re Carter, No. 01-502
...of the issues covered in that motion were raised in the district court or on direct appeal. ¶ 8. The State relies primarily on In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.), which held that petitioner in a post-conviction relief proceeding under 13 V.S.A. § 7131 has the burd......
-
In re Carter, 2004 VT 21 (Vt. 2/27/2004), Nos. 2001-502 & 2001-526, September Term, 2002
...of the issues covered in that motion were raised in the district court or on direct appeal. ¶ 8. The State relies primarily on In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.), which held that petitioner in a post-conviction relief proceeding under 13 V.S.A. § 7131 has the burd......
-
Sprague v. Nally, No. 03-489.
...Accordingly, he has waived any claim that the court erroneously relied on those facts in granting the motion to dismiss. See In re Hart, 167 Vt. 630, 631, 715 A.2d 640, 641 (1998) (mem.) (issues not raised on appeal are waived).2 We note, as well, that although Sprague made no formal reques......