In re Dow, 2018-366

• Decision Date: 04 October 2019
• Docket Number: No. 2018-366,2018-366
• Parties: In re Miles Otis Dow, Jr.
• Court: Vermont Supreme Court

2019 VT 72

In re Miles Otis Dow, Jr.

No. 2018-366

Supreme Court of Vermont

September Term, 2019

October 4, 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, Windham Unit, Civil Division

Michael R. Kainen, J.

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

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

Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Amicus Curiae Office of the Defender General.

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

¶ 1. EATON, J. Petitioner, Miles Otis Dow, Jr., filed a motion for post-conviction relief (PCR) with the Windham Civil Division. The Defender General's Office reviewed the petition and determined that petitioner's claims lacked merit, pursuant to 13 V.S.A. § 5233(a)(3). Petitioner amended the PCR petition, adding arguments that had not been reviewed by the Defender General's Office, and proceeded without assigned counsel.¹ The State filed a motion forsummary judgment, which the PCR court granted.² Petitioner appeals the PCR court's dismissal to this Court, arguing that the PCR court erred in granting the State's motion for summary judgment because it failed to properly address the claims petitioner raised in his amended petition. We reverse and remand for the PCR court to conduct proceedings consistent with this opinion.

¶ 2. Petitioner was convicted of aggravated assault stemming from events that occurred in March 2014, and he is currently serving his sentence for that conviction.³ In March 2017, petitioner filed his initial PCR petition. In his initial petition, petitioner alleged violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. He asked that the PCR court vacate and set aside the trial court judgment against him or, in the alternative, grant a new trial or correct the sentence. Upon receiving the initial PCR petition, assigned counsel reviewed it and declined assignment of the case pursuant to 12 V.S.A. § 5233(a)(3), indicating that "further representation of [petitioner] would require an attorney to advance frivolous claims." Petitioner filed an amended PCR petition in January 2018, which is the petition at issue on appeal. The amended petition sought relief based on several grounds. Most notably, petitioner added new claims of ineffective assistance of counsel because petitioner's attorney allegedly: (1) failed to object to the trial court's grant of the State's motion for a mistrial, thereby failing to preserve the issue for appeal to this Court; and (2) failed to reasonably and effectively prepare for sentencingby failing to investigate petitioner's background and mitigating evidence regarding petitioner's mental health or his education, employment, family, financial, and health records.⁴

¶ 3. In January 2018, the PCR court issued an entry order acknowledging the amended petition, which "provide[d] additional elaboration" for the claims in the initial petition, and stated that petitioner would be treated as pro se unless he hired counsel because the Defender General's Office had already found the claims raised in the initial petition to be meritless. In February 2018, petitioner filed a motion for reassignment of counsel. His request for counsel was denied by order in March 2018 "for the same reasons as stated" in the January entry order. Thus, although the amended petition contained different arguments than the initial petition, the amended petition was not reviewed by the Defender General's Office to determine whether the claims were meritorious, and petitioner proceeded pro se.

¶ 4. In January 2018, the PCR court ordered petitioner to disclose any expert witnesses. In March 2018, after the PCR court extended the deadline for such disclosures, petitioner filed a witness list with the PCR court. The State filed a motion for summary judgment in late March, and petitioner filed a motion in opposition. In petitioner's opposition motion, he indicated that he had received a list of possible expert witnesses from the Prisoners' Rights Office, had sent letters of request to six of the seven listed experts, and was awaiting their responses.

¶ 5. The PCR court granted the State's motion for summary judgment in June 2018, concluding that the State was entitled to judgment as a matter of law largely because, except inrare circumstances, an expert is necessary to make a meritorious ineffective-assistance-of-counsel claim, and petitioner did not meet this burden. In granting the State's motion, the PCR court noted that petitioner's opposition motion "does not really address the State's motion [for summary judgment], but instead asks for more time to get an expert." On appeal, petitioner asserts that the PCR court erred in granting the State's motion for summary judgment and requests that this Court remand to the PCR court to address the issues raised in petitioner's amended PCR. The State argues that the court correctly granted summary judgment to the State because petitioner failed to present expert testimony to support his ineffective-assistance-of-counsel claim during the PCR proceedings and because petitioner was not entitled to a second merits review by counsel after amending his PCR petition. Upon this Court's request, the Defender General's Office submitted an amicus brief advocating that this Court reverse and remand the matter to the PCR court because petitioner's amended petition should have been reviewed to determine whether the amended claims had merit pursuant to 13 V.S.A. § 5233(a)(3).

¶ 6. Generally, when reviewing a grant of summary judgment in a PCR proceeding, "this Court applies the same standard as the trial court, viewing the facts in the light most favorable to the nonmoving party." In re Hemingway, 2014 VT 42, ¶ 7, 196 Vt. 384, 97 A.3d 896. "Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Id.; V.R.C.P. 56(a). However, our review on appeal in this case focuses on the PCR court's procedural determination not to reassign counsel to assess the merits of petitioner's amended PCR petition, rather than the merits of the PCR court's summary judgment decision. In In re Bailey, we recognized that this Court "generally enjoys procedural discretion in considering motions to withdraw," and we explained that the PCR court may exercise its discretion regarding whether to reassign counsel to conduct additional review of a PCR petition.2009 VT 122, ¶¶ 7, 14, 187 Vt. 176, 992 A.2d 276. We review the PCR court's procedural determinations in such instances for abuse of that discretion. See, e.g., In re Burke, 2019 VT 28, ¶ 46, ___Vt. ___, 212 A.3d 189 (finding PCR court did not abuse its discretion in denying petitioner's motion to amend petition).

¶ 7. The preliminary issue in this case is whether the PCR court complied with the Public Defender Act (PDA) when it allowed petitioner to proceed pro se with his amended PCR petition, which raised arguments that had not been reviewed by counsel as required by 13 V.S.A. § 5233(a)(3). We first review the statutory scheme underlying this matter—the PDA. We have explained that "[r]ather than being grounded in the constitution, [a PCR] petitioner's right to counsel is created, defined, and limited by statute." Bailey, 2009 VT 122, ¶ 10. The PDA 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." Id. ¶ 8 (quoting 13 V.S.A. § 5233(a)(3)). Section 5201 of the PDA defines an indigent or "needy person" as "a person who at the time his or her need is determined is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of representation or who is otherwise unable to employ an attorney." 13 V.S.A. § 5201(3). An individual who qualifies as a needy person has a right to government-funded representation. Id. § 5231. The extent of those services is outlined by § 5233. Relevant to this appeal, a needy person is entitled:

to be represented in any other postconviction proceeding which may have more than a minimal effect on the length or conditions 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)(A) (emphasis added).

¶ 8. In sum, the plain language of § 5233 gives "counsel the exclusive authority to accept or decline each case," and "counsel must decide when state-funded legal representation is warranted in a post-conviction proceeding." Bailey, 2009 VT 122, ¶ 11.⁵ To that end, the Defender General's Office has established an in-house process for determining whether a PCR petition has merit. "The 'appointment' of counsel [is] accomplished by a ministerial referral to the Defender General's Office." Id. ¶ 7. Counsel determines whether he or she will represent a petitioner under § 5233(a)(3) "after an examination of the issues prompted by the pro forma referral." Id. In its amicus brief, the Defender General's Office explains that the record and file are initially reviewed by a single attorney. If the attorney cannot find a meritorious claim, then the matter is forwarded to another attorney and the Defender General for review. The Defender General's Office will...