In re Carpenter

• Decision Date: 31 August 2018
• Docket Number: No. 17-311,17-311
• Citation: 197 A.3d 865
• Parties: IN RE Michael L. CARPENTER
• Court: Vermont Supreme Court

197 A.3d 865

IN RE Michael L. CARPENTER

No. 17-311

Supreme Court of Vermont.

March Term, 2018

August 31, 2018

Adele V. Pastor, Barnard, for Petitioner-Appellant.

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

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton JJ., and Morris, Supr. J. (Ret.), Specially Assigned

EATON, J.

¶ 1. The central question in this appeal is whether the collateral bar rule precludes a challenge to a facially invalid, emergency, ex parte, relief-from-abuse (RFA) order in the context of a prosecution for violation of that order. Arguing that the State has not established an abuse of the writ, petitioner appeals the dismissal of his second petition for post-conviction relief (PCR). Because we conclude the collateral bar rule applies, we affirm.

¶ 2. The relevant history is undisputed. In April 2011, having been charged with three felonies and six misdemeanors, petitioner pled guilty to one felony—violation of an abuse-prevention order (VAPO)—and five misdemeanors as part of a plea agreement. The felony VAPO charge was based on a telephone call petitioner made to his ex-girlfriend in violation of an emergency, ex parte RFA order that, among other things, prohibited petitioner from contacting her. The court imposed a sentence of five-to-fourteen years to serve, which constituted an enhancement under the Habitual Offender Act, 13 V.S.A. § 11. On direct appeal of the sentence, this Court rejected petitioner's plain-error argument that the Habitual Offender Act did not authorize enhancing a minimum sentence beyond the underlying offense's statutory minimum. State v. Carpenter, 2013 VT 28, ¶¶ 4-6, 193 Vt. 484, 70 A.3d 1023.

¶ 3. Meanwhile, while his appeal was pending, petitioner filed his first PCR petition, which the PCR court stayed pending resolution of the appeal. After this Court upheld his sentence on appeal, petitioner filed another PCR that was consolidated with the first. Petitioner sought the same relief on the same grounds in both petitions. Petitioner represented himself at the merits hearing because the Defender General had determined that his claims lacked merit, and the PCR court allowed assigned counsel to withdraw. 13 V.S.A. § 5233(a)(3). In November 2014, the (first) PCR court rejected petitioner's various arguments and denied his petition.¹ Petitioner did not appeal.

¶ 4. Petitioner filed this second PCR petition in June 2015. Once again, the PCR court assigned counsel but then granted counsel's motion to withdraw. The PCR court determined that the bases for petitioner's second PCR petition were the same as those previously rejected on the merits and dismissed the petition as successive. On appeal, this Court reversed the dismissal and remanded the case for further proceedings. In re Carpenter, No. 2015-325, 2016 WL 7363915, at *1 (Vt. Dec. 16, 2016) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo15-325.pdf [https://perma.cc/325M-5S8Q]. We explained that the second PCR raised a new argument: that the no-contact provision in the ex parte, temporary RFA, which underlay petitioner's felony VAPO conviction, was invalid, rendering his indictment for violating that order defective. Id. at *2-3. In contrast to the statute authorizing final RFA orders, the statute authorizing ex parte, emergency RFA orders in effect at the time did not allow orders prohibiting contact with the RFA plaintiff.² Id. Petitioner argued that his trial counsel had been ineffective in failing to raise this issue. Id. Because petitioner had raised an issue not previously raised and resolved, we concluded that his second PCR petition was not successive. But, we noted that the State had not alleged, and the PCR court had not found, an abuse of the writ, and said that the court could consider on remand any abuse-of-the-writ claim made by the State. Id. at *3-4. We also directed the PCR court to assign counsel for petitioner on remand. Id.

¶ 5. On remand, the State moved to dismiss the petition for abuse of the writ. Because the Prisoner's Rights Office continued to have a conflict, the court ordered that substitute counsel be appointed and enter an appearance. After no lawyer entered an appearance by the assigned date, the court ordered Attorney Furlan—the attorney who had screened petitioner's first PCR petition and found no merit—to enter an appearance. On petitioner's behalf, Attorney Furlan argued in response to the State's motion to dismiss that his own prior neglect in failing to identify the issue raised by petitioner in this PCR petition constituted sufficient cause for petitioner's failure to raise the claim in his first PCR petition, and that petitioner was prejudiced by his counsel's ineffective assistance in failing to argue that the RFA no-contact provision was invalid. See In re Laws, 2007 VT 54, ¶ 20, 182 Vt. 66, 928 A.2d 1210 (explaining PCR abuse of writ cause-and-prejudice test).

¶ 6. The PCR court granted the State's motion to dismiss for abuse of the writ.

The court assumed, without deciding, that petitioner had demonstrated sufficient cause for failing to raise the issue sooner but concluded that he had not met his burden to show proof of actual prejudice. The court reasoned that any argument in the VAPO prosecution that the no-contact provision in the underlying RFA was invalid would not have succeeded. The court explained that under the collateral bar rule petitioner could not collaterally challenge the validity of the underlying RFA order in his prosecution for felony violation of that order. The court concluded that no exception to this bar applied because petitioner had ample opportunity to challenge the order before violating it.

¶ 7. On appeal, petitioner argues that the PCR court erred by: (1) assigning him a lawyer who, on two previous occasions, determined after screening that his PCR claims lacked merit; and (2) concluding that his challenge to the validity of the provision of the underlying RFA that led to his conviction was precluded by the collateral bar rule.

I. Assignment of Counsel

¶ 8. We agree with petitioner that the PCR court's assignment of a lawyer who had previously concluded that his claims had no merit was not the best practice, both because the assignment understandably undermined petitioner's confidence that assigned counsel would zealously pursue his claims and because counsel was required to emphasize the neglect of prior counsel—in this case, himself—to overcome the State's motion to dismiss for abuse of the writ.

¶ 9. Nonetheless, we conclude that even if the assignment was error, in this case petitioner did not suffer prejudice. Laws, 2007 VT 54, ¶ 22, 182 Vt. 66, 928 A.2d 1210 (explaining that when State meets burden of showing abuse of writ, "the burden then shifts to the petitioner to show cause and actual prejudice"). In the proceeding on remand, counsel advanced petitioner's claim concerning the ineffectiveness of trial counsel in failing to challenge the validity of the indictment and appropriately argued that petitioner should be allowed to pursue the claim because counsel's own neglect in reviewing petitioner's claims on two prior occasions was sufficient cause to satisfy the first prong of the abuse-of-the-writ analysis. The PCR court assumed without deciding that this was the case. Accordingly, on this record, we conclude that the PCR court's appointment of counsel that had previously found petitioner's claims meritless is not grounds to reverse.

II. Merits of Dismissal

¶ 10. The PCR court further concluded that petitioner was not free to collaterally challenge the RFA order because he had an adequate opportunity to challenge it. As a consequence, petitioner had suffered no prejudice from counsel's ineffectiveness. We agree.

¶ 11. When an individual makes a claim for the first time in a second or subsequent PCR petition, under certain circumstances, the court may dismiss the claim for "abuse of the writ." In re Towne, 2018 VT 5, ¶ 25, ––– Vt. ––––, 182 A.3d 1149. The State "bears the burden of pleading abuse of the writ, setting forth a petitioner's writ history, identifying the claims that appear for the first time, and alleging the petitioner has abused the writ." Id. The burden then shifts to the petitioner "to show cause for failing to raise the claim previously and actual prejudice from the default." Id. The cause standard requires petitioner to show "some objective factor external to the defense that impeded counsel's efforts to raise the claim in the earlier proceeding." Id. (quotation omitted). Recognized examples of "cause" include official interference, situations where a factual or legal basis for a claim was unavailable in an earlier proceeding, or ineffective assistance of counsel. Id. To show prejudice, a petitioner must demonstrate that the alleged errors during the underlying trial "worked to the petitioner's actual and substantial disadvantage." Id. (quotation omitted).

¶ 12. Whether the PCR court properly dismissed the petition as an abuse of the writ turns on whether the court properly applied the collateral bar rule in this case. The court assumed for the purposes of its analysis that petitioner had shown good cause for failing to raise his claim earlier; its dismissal stemmed from its determination that petitioner had failed to show prejudice from trial counsel's failure to assert the invalidity of the underlying RFA. In reviewing this conclusion on appeal, we do not dispute petitioner's contention that the no-contact provision in the emergency RFA, which was the basis for his criminal conviction, was invalid on its face. The RFA court at the time had no authority to impose a no-contact restriction in the context of an ex parte, emergency RFA order. The statute expressly limited the court's available remedies in an ex parte order to those listed in the statute, and the Legislature did not authorize a no-contact condition in that statute until 2017. See 15 V.S.A. § 1104(a)(1)(D) ...