In re Burke

• Decision Date: 19 April 2019
• Docket Number: No. 2017-261,2017-261
• Citation: 2019 VT 28
• Court: Vermont Supreme Court
• Parties: In re James Burke

2019 VT 28

In re James Burke

No. 2017-261

Supreme Court of Vermont

October Term, 2018

April 19, 2019

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On 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.

David Tartter, Deputy State's Attorney, Montpelier, for Respondent-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. SKOGLUND, J. 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 family:

[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 andI think based on the history of this case he should be allowed to proceed pro se.

The 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 ineffective counsel for some, but not all, of the reasons alleged in petitioner's original petition.

¶ 7. In October 2015, petitioner filed a motion for leave to amend the original petition. The State responded, noting that the proposed amended petition was thirty-four pages long and contained almost one hundred numbered paragraphs and that Attorney Volk had already conducted an exhaustive examination of the original petition and of the record, had provided a written report, and had been deposed twice on topics not within his expert report. The State did not oppose the motion to amend but requested an order that petitioner "submit an explanation of exactly how his amended petition differed from the original petition, in order to save the State and [Attorney Volk] the necessity of combing through the pending and the proposed amended petition in order to determine the nature of the proposed changes." The State also requested that petitioner be required "to state which claims, if any, would be dropped, and which claims, if any, would be added" andnoted that it would be in a position to respond to the motion to amend upon receipt of clarification. Petitioner never responded to this filing. In December 2015, the PCR court denied the motion to amend, stating that the motion "offer[ed] no explanation as to why amendment [was] required nearly three years after the case was filed."

¶ 8. In May 2017, the PCR court issued its order denying petitioner's motion for summary judgment and granting the State's motion for summary judgment. The court explained that petitioner's "PCR petition rehashe[d] his dissatisfaction with the criminal trial court's rulings and with the Supreme Court's decisions on the issues that he appealed." Therefore, the court limited its review to the four claims of ineffective assistance of counsel it could discern from the original petition and clarified that it would not address those claims that had already been decided on direct appeal or claims potentially raised in the amended petition.

¶ 9. The PCR court determined that petitioner articulated four reasons why Attorney Maguire provided ineffective assistance, and reviewed the following claims: Attorney Maguire allegedly (1) "failed to select a fair jury because the jury included individuals with previous experience with sexual assault or other sexual offenses"; (2) "did not argue for instructions regarding intoxication and diminished capacity and did not retain a forensic toxicology expert"; (3) "had a personal conflict and a degree of animosity toward [petitioner] that prevented [Attorney] Maguire from providing proper counsel"; and (4) "failed to bring evidence that [c]omplainant allegedly stole items from [petitioner] and had allegedly made two other false complaints about sexual misconduct."

¶ 10. The PCR court relied on the correct summary judgment standard—summary judgment is appropriate where there are not genuine issues of material fact and any party is entitled to judgment as a matter of law. See H & E Equip. Servs., Inc. v. Cassani Elec., Inc., 2017 VT 17, ¶ 10, 204 Vt. 559, 169 A.3d 1308. For PCR petitions based on ineffective counsel, the trial court outlined...