In re Carter, 2004 VT 21 (Vt. 2/27/2004), Nos. 2001-502 & 2001-526, September Term, 2002

Docket NºNos. 2001-502 & 2001-526, September Term, 2002
Citation2004 VT 21
Case DateFebruary 27, 2004
CourtUnited States State Supreme Court of Vermont

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2004 VT 21
In re Bernard Carter
Nos. 2001-502 & 2001-526, September Term, 2002
Supreme Court of Vermont
February 27, 2004

On Appeal from Orleans Superior Court, Matthew I. Katz, J. (2001-502), Matthew I. Katz, J. (2001-526).

Bradley S. Stetler, of Stetler, Allen & Kampmann, Burlington, for Petitioner-Appellee (2001-502) Petitioner-Appellant (2001-526).

William H. Sorrell, Attorney General, Montpelier, and David Tartter, Assistant Attorney General, Montpelier, for Respondent-Appellant (2001-502) Respondent-Appellee (2001-526).

PRESENT: Amestoy, C.J., Dooley, Morse1, Johnson and Skoglund, JJ.

DOOLEY, J.


¶ 1. This case involves challenges to two summary judgment rulings made on a petition for post-conviction relief from a conviction of aggravated sexual assault under 13 V.S.A. § 3253 and the resulting sentence. Petitioner appeals the denial of his June 1, 1998 motion for summary judgment, arguing that the trial court erred in not finding that: (1) the information failed to state the essential elements of the crime of sexual assault; (2) the information and jury instructions omitted the requirement that serious bodily injury under 13 V.S.A. § 3253(a)(6) must be "imminent;" and (3) the information and jury instructions did not ensure that the jury was unanimous in its determination to which victim the threat of serious bodily injury was directed. The State appeals the trial court's decision to grant petitioner's September 21, 1999 motion for summary judgment because

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petitioner was interviewed for the presentence report without the presence of his lawyer. The State argues that: (1) petitioner failed to demonstrate that he did not deliberately bypass a direct appeal of his claim; (2) his Sixth Amendment rights were not violated by the presentence investigation interview; and (3) his Fifth Amendment rights similarly were not violated by the presentence investigation interview. We affirm both summary judgment rulings.

¶ 2. Petitioner was charged with committing aggravated sexual assault on a former girlfriend. At trial, petitioner testified in his own defense, claiming that the sex was consensual. The jury returned a verdict of guilty on a single count of aggravated assault under 13 V.S.A. § 3253(a)(6). On appeal, petitioner argued that the trial court erred in admitting evidence of his flight to avoid prosecution, but excluding petitioner's explanation of why he left; in admitting evidence of the victim's statement to her sister as a prior consistent statement; and in admitting evidence that petitioner failed to deny the crime to the police when arrested. We found that the first two arguments were valid, but the admission of the evidence was harmless, and rejected the third argument. See State v. Carter, 164 Vt. 545, 674 A.2d 1258 (1996). The conviction was affirmed.

¶ 3. On April 15, 1997, petitioner filed a petition for post-conviction relief with the superior court, raising five claims: (1) the information failed to state an offense because it did not detail the essential elements of the crime of sexual assault; (2) the information and the jury instructions omitted the requirement that serious bodily injury be "imminent;" (3) the information and jury instructions did not ensure that the jury was unanimous in its determination of to whom the threat of serious bodily injury was directed; (4) the presentence report interview violated petitioner's Fifth and Sixth Amendment rights; and (5) the sentence was disproportionate to the offense.

¶ 4. On June 1, 1998, petitioner moved for summary judgment on the first three of these claims. The court denied this motion on January 20, 1999. Thereafter, petitioner amended his petition to allege additionally that the reliance in sentencing on his failure to acknowledge responsibility for the crime, without offering him immunity, violated his Fifth Amendment rights. On September 21, 1999, petitioner moved for summary judgment on his added claim and on his fourth claim — that the presentence interview, conducted in the absence of counsel, violated his Fifth and Sixth Amendments rights. On November 13, 2001, the superior court granted this motion on Sixth Amendment grounds, vacated the sentence and final judgment of the district court, and remanded the matter for further proceedings.

¶ 5. On November 15, 2001, the State filed an appeal of the summary judgment vacating the sentence. On December 3, 2001, petitioner filed an appeal of the court's denial of the summary judgment motion on the first three claims. These appeals were consolidated on May 3, 2002.

¶ 6. The appeals address rulings on motions for summary judgment. In ruling on a denial or grant of summary judgment, this Court applies the same standard as the trial court. Sabia v. Neville, 165 Vt. 515, 523, 687 A.2d 469, 474 (1996). Summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in a light most favorable to the nonmoving party, the moving party is entitled to judgment

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as a matter of law. Id.

I.

¶ 7. We first address the State's argument with respect to both summary judgment decisions that the superior court should not have reached the merits of the post-conviction claims because petitioner failed to demonstrate that he did not deliberately bypass the issues on direct appeal. The State raised this issue below with respect to petitioner's second summary judgment motion that the sentence was tainted by the constitutional violations in the presentence interview. The trial judge ruled that deliberate bypass did not apply to an issue not raised either at trial or on direct appeal. Although the State failed to contest the first summary judgment motion on this ground, the trial judge's rationale on the second motion would also apply to the first: none 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 burden of proving that he did not deliberately bypass raising the issues in the petition on direct appeal from the conviction and sentence. Although Hart specified the burden of proof with respect to deliberate bypass, it did not describe the elements of deliberate bypass because petitioner did not deny that deliberate bypass applied in that case. See id. To find the elements of deliberate bypass we must look to earlier decisions.

¶ 9. Under Vermont's post-conviction relief statute, 13 V.S.A. §§ 7131-7137, a prisoner may bring a challenge to confinement where the sentence is subject to collateral attack. State v. Cooley, 135 Vt. 409, 411, 377 A.2d 1386, 1387 (1977). However, post-conviction review is not a substitute for direct appeal. In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987); Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981). The prohibition was described in Nash:

Where the issues raised in a petition for post-conviction relief were contested at trial and were not raised on direct appeal, they will not be addressed on post-conviction review unless it is demonstrated that the failure to raise them on direct appeal was inadvertent, that appellate counsel was ineffective, or that extraordinary circumstances excused the failure to raise the issues on appeal.

149 Vt. at 64, 539 A.2d at 990. In Nash and other cases in which we dismissed a post-conviction relief proceeding because of waiver or deliberate bypass, see Hart, 167 Vt. at 630 n.1, 715 A.2d at 641 n.1 (terms "deliberate bypass" and "inadvertent waiver" implicate the same general principle), the issues involved were preserved for appeal in the criminal court, but not appealed. See Ladabouche v. Walton, 152 Vt. 224, 226, 565 A.2d 1324, 1325 (1989) (in post-conviction relief proceeding, petitioner challenged failure to strike testimony in response to his motion; issue not raised in the direct appeal); Nash, 149 Vt. at 64, 539 A.2d at 990 (issues "were preserved at trial but not raised on his direct appeal"); Berard, 132

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Vt. at 600, 326 A.2d at 168 (issue in petition "was presented, argued at length, and granted in large part" in district court).

¶ 10. Here, none of the issues presented in the post-conviction relief petition were raised or adjudicated in the district court. Under Nash, deliberate bypass does not apply. Thus, we reach the merits of the two summary judgment decisions, beginning with the summary judgment decision rejecting challenges to the conviction because of defects in the charging information or in the instructions to the jury.2

II.

¶ 11. Petitioner first argues that the court erred in rejecting his challenge to the information, alleging it failed to adequately charge the offense for which he was convicted. As stated in our discussion of deliberate bypass, petitioner did not raise this issue in the district court.

¶ 12. Petitioner was charged with aggravated sexual assault, which includes as an element "sexual assault." See 13 V.S.A. § 3253(a). Under 13 V.S.A. § 3252(a) sexual assault may be shown under any of four specifications of elements. Petitioner argues that the information was defective because it failed to specify which of the four definitions of sexual assault was charged and failed to specify the elements of the definition charged, including the implied mental element. According to petitioner, these omissions were prejudicial because he was not given sufficient notice of the State's theory of the case to prepare a defense.

¶ 13. V.R.Cr.P. 7(b) provides that the information "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." This rule ensures that a criminal defendant is provided with...

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71 practice notes
  • State v. Nelson, No. 2018-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...13, ¶ 11. ¶ 56. A "mere possibility" that the jury was not unanimous does not necessarily rise to the level of plain error. In re Carter, 2004 VT 21, ¶ 26, 176 Vt. 322, 848 A.2d 281 (citing State v. Holcomb, 156 Vt. 251, 254-55, 590 A.2d 894, 895-96 (1991)). Plain error requires a showing o......
  • State v. Nelson, No. 18-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...A.3d 550. ¶ 56. A "mere possibility" that the jury was not unanimous does not necessarily rise to the level of plain error. In re Carter, 2004 VT 21, ¶ 26, 176 Vt. 322, 848 A.2d 281 (citing State v. Holcomb, 156 Vt. 251, 254-55, 590 A.2d 894, 895-96 (1991) ). Plain error requires a showing ......
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 8, 2006
    ...the existence of genuine issues of material fact regarding appellant's claim of ineffective assistance of counsel. See In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281 ("Summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in a ......
  • State v. Bellanger, No. 16–221
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 9, 2018
    ...that some of the alleged acts occurred and other jurors could have found that other of the alleged acts occurred. See, e.g., In re Carter, 2004 VT 21, ¶ 24, 176 Vt. 322, 848 A.2d 281 ("To demonstrate prejudice, petitioner would need to show that it was likely that some jurors found that the......
  • Request a trial to view additional results
50 cases
  • State v. Nelson, No. 2018-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...13, ¶ 11. ¶ 56. A "mere possibility" that the jury was not unanimous does not necessarily rise to the level of plain error. In re Carter, 2004 VT 21, ¶ 26, 176 Vt. 322, 848 A.2d 281 (citing State v. Holcomb, 156 Vt. 251, 254-55, 590 A.2d 894, 895-96 (1991)). Plain error requires a showing o......
  • State v. Nelson, No. 18-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...A.3d 550. ¶ 56. A "mere possibility" that the jury was not unanimous does not necessarily rise to the level of plain error. In re Carter, 2004 VT 21, ¶ 26, 176 Vt. 322, 848 A.2d 281 (citing State v. Holcomb, 156 Vt. 251, 254-55, 590 A.2d 894, 895-96 (1991) ). Plain error requires a showing ......
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 8, 2006
    ...the existence of genuine issues of material fact regarding appellant's claim of ineffective assistance of counsel. See In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281 ("Summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in a ......
  • State v. Bellanger, No. 16–221
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 9, 2018
    ...that some of the alleged acts occurred and other jurors could have found that other of the alleged acts occurred. See, e.g., In re Carter, 2004 VT 21, ¶ 24, 176 Vt. 322, 848 A.2d 281 ("To demonstrate prejudice, petitioner would need to show that it was likely that some jurors found that the......
  • Request a trial to view additional results

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