IN RE BAILEY

• Decision Date: 24 December 2009
• Docket Number: No. 07-454.,07-454.
• Citation: 992 A.2d 276,2009 VT 122
• Parties: In re Kenneth BAILEY, Sr.
• Court: Vermont Supreme Court

992 A.2d 276

2009 VT 122

In re Kenneth BAILEY, Sr.

No. 07-454.

Supreme Court of Vermont.

December 24, 2009.

Allison N. Fulcher of Martin & Associates, Barre, for Petitioner-Appellant.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Amicus Curiae.

Michael Rose, St. Albans, for Amicus Curiae.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. BURGESS, J.

Attorney Allison Fulcher seeks to withdraw as appointed counsel for petitioner Kenneth Bailey, Sr., in this post-conviction relief (PCR) appeal. As discussed below, we grant her request.

¶ 2. The record indicates the following history. Petitioner pled guilty to domestic assault and sexual assault in May 2004. He filed a pro se PCR petition in September 2005. Counsel from the Prisoners' Rights Office apparently represented petitioner at some point, but counsel withdrew in October 2005. Petitioner indicated that he wished to represent himself. Following a hearing at which petitioner appeared pro se, the trial court denied the PCR petition, finding it without merit. Petitioner then filed a pro se notice of appeal as well as an application for public defender services.¹ Attorney Fulcher was assigned to represent petitioner on appeal.

¶ 3. In August 2008, Fulcher moved to withdraw, asserting that she could not continue to represent petitioner in light of Vermont Rule of Professional Conduct 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.") and Rule 3.3 (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), as well as 13 V.S.A. § 5233(a)(3) (needy person entitled to counsel in PCR proceeding "where the attorney considers the legal claims warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law"). Fulcher indicated that petitioner did not oppose her request to withdraw.

¶ 4. In an entry order signed by Justice Dooley, counsel was directed to provide additional information to support her motion. Specifically, she was ordered to submit an affidavit that contained: (1) a specification of petitioner's claims; (2) law or argument that arguably supported each claim; and (3) a statement that counsel did not consider petitioner's claims to be warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The order cited Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the information requested is similar to a so-called Anders brief. See id. at 743-44, 87 S.Ct. 1396 (attorney appointed to represent indigent defendant in direct appeal who seeks to withdraw on grounds that case is frivolous must provide court with brief identifying anything in the record that might arguably support the appeal; indigent is allowed to supplement this brief, and then court will decide if case is wholly frivolous). Counsel then asked the full Court to review the single Justice entry order, which was granted.

¶ 5. Fulcher argues that she should be allowed to withdraw without providing the information identified above. She maintains that the considerations underlying Anders are not present here, and that her withdrawal is ethically preferable to filing an affidavit that outlines the shortcomings of her client's case. The Office of the Defender General filed an amicus brief, echoing these arguments. It explains that the Legislature expressly limited the right to state-funded legal representation in PCR proceedings to nonfrivolous cases as determined by counsel, 13 V.S.A. § 5233(a)(3), and that the Defender has an in-house system to evaluate whether a PCR is frivolous. By limiting the right to counsel to nonfrivolous cases, the Defender continues, the Legislature chose to conserve public money and ensure representation for petitioners whose cases do have merit. The Defender maintains that the existing review procedure adequately protects petitioners. The adequacy of the Defender's review process—which involves an initial review of the record and file by two attorneys, and if neither can find a meritorious claim, a review of these materials by a third attorney—is not challenged here.

¶ 6. The Court appointed attorney Michael Rose to file an amicus brief opposing the Defender's position. He emphasizes that the Court has discretion in ruling on a motion to withdraw, citing Cameron v. Burke, 153 Vt. 565, 573, 572 A.2d 1361, 1365 (1990) (Supreme Court reviews trial court's ruling on motion to withdraw for abuse of discretion) and V.R.A.P. 45.1(f) ("Leave to withdraw after the appeal has been docketed will be granted only for good cause shown and on such terms as the Court may order."). He maintains that 13 V.S.A. § 5233(a) does not require that the Court defer to the Defender's evaluation of the merits of a particular PCR. More importantly, he argues, the statute did not divest the Court of its authority under V.R.A.P. 45.1(f) to grant or deny motions to withdraw. Attorney Rose asserts that the information requested in the one-Justice entry order will allow the Court to properly exercise its discretion, and it will enable the Court to determine if the attorney's opinion is honestly held and the product of adequate, sound consideration. He also suggests that because this information is provided at the Court's request, the attorney will not be placed in an ethical bind.

¶ 7. While the Court generally enjoys procedural discretion in considering motions to withdraw under Rule 45.1, we find no basis to require counsel to file an Anders brief to support a request for withdrawal in this case. Such a requirement would defeat the cost-saving purpose of the amendment to 13 V.S.A. § 5233(a)(3), and it would expand the statutory right to counsel to cases that this Court, rather than the appointed attorney, considers appropriate. Cf. Maloney v. Bower, 113 Ill.2d 473, 101 Ill.Dec. 594, 498 N.E.2d 1102, 1104 (1986) (chief judge of circuit court did not have authority to issue general order directing judges to appoint public defenders to represent indigents in civil contempt proceedings, thereby enlarging duties of office of public defender beyond what legislature had provided). Moreover, review of the withdrawal in the context of this case would literally elevate form over substance. The "appointment" of counsel was accomplished by a ministerial referral to the Defender General's Office. Counsel could not determine whether she would represent appellant under § 5233(a)(3) until after an examination of the issues prompted by the pro forma referral.

¶ 8. The Public Defender Act (PDA) explicitly governs the "extent of legal services" due to indigent PCR litigants, and it expressly conditions a petitioner's entitlement to representation on counsel's assessment of the merit of the legal action. 13 V.S.A. § 5233(a)(3). The statute provides in pertinent part that, after appeal, a "needy person" is entitled:

To be represented in any other post-conviction proceeding which may have more than a minimal effect on the length or condition of detention where the attorney considers the claims, defenses, and other legal contentions to be warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

Id. § 5233(a)(3) (emphasis added).

¶ 9. An Anders-type explanation justifying counsel's withdrawal is not required in the PCR context. The withdrawal prerequisites called for in Anders are designed to vindicate a defendant's constitutional right to counsel, 386 U.S. at 744, 87 S.Ct. 1396, and, as the United States Supreme Court has recognized, a petitioner has no constitutional right to counsel in civil PCR proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (rejecting notion that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions). Absent an underlying constitutional right to counsel in state post-conviction proceedings, there is "no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right." Id. at 557, 107 S.Ct. 1990. "Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel." Id. at 555, 107 S.Ct. 1990; see also People v. Breaman, 939 P.2d 1348, 1351 n. 2 (Colo.1997) (en banc) (citing Finley and concluding that appointed attorney who seeks to withdraw from representing defendant in post-conviction proceeding may inform court that he or she believes defendant's claims are without merit and request permission to withdraw without filing Anders brief).

¶ 10. Rather than being grounded in the constitution, petitioner's right to counsel is created, defined, and limited by statute. See In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act sets forth statutory right to counsel in PCR proceedings even though providing such assistance is not constitutionally compelled). Before 2004, the PDA guaranteed an indigent litigant the right to representation in any post-conviction proceeding "that . . . the needy person considers appropriate." 13 V.S.A. § 5233(a)(3) (1998) (enacted 1971, No. 161 (Adj. Sess.), § 6). In light of this language, we held that the state was obligated to provide PCR counsel upon the litigant's request, regardless of the merit of the claims raised in the PCR or the fact that representation was not constitutionally compelled. Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632.

¶ 11. In 2004, likely in response to Gould,...