In re Gould, 2004 VT 46 (VT 6/6/2004), 2002-262, April Term, 2003

• Decision Date: 06 June 2004
• Docket Number: No. 2002-262, April Term, 2003,2002-262, April Term, 2003
• Parties: In re Michael Gould
• Court: Vermont Supreme Court

Page 1

2004 VT 46

In re Michael Gould

No. 2002-262, April Term, 2003

Supreme Court of Vermont

June 6, 2004

On Appeal from Chittenden Superior Court, Mary Miles Teachout, J.

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

Robert Simpson, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.

PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J. (Ret.), Specially Assigned

JOHNSON, J.

¶ 1. Petitioner, Michael Gould, appeals the Chittenden Superior Court's denial of his post-conviction relief motion. Gould claims that the court violated his statutory right to counsel under 13 V.S.A. §§ 5231, 5233, when it failed to assign new counsel after permitting the previous post-conviction relief counsel to withdraw. In light of the right to counsel afforded by our Public Defender Act, the court erred in refusing to appoint new counsel to assist Gould on his first post-conviction relief petition. Accordingly, we reverse and remand.

¶ 2. Petitioner Michael Gould was arraigned in Chittenden District Court and pled not guilty to charges of assault and robbery. Gould subsequently changed his plea to nolo contendere. At the plea hearing, after discussing the plea terms, petitioner stated that he understood that he could be sentenced to eighteen to twenty years. The district judge accepted the change of plea, finding it to be voluntary, factually based, and made with knowledge and understanding of the consequences and after a knowing waiver of constitutional rights.

¶ 3. At the sentencing hearing in August 1999, the trial judge imposed a sentence of between fifteen and twenty years. The judge explained that the ten-year minimum recommended in the presentence interview report was too short in light of petitioner's history of felony convictions. On the other hand, the judge credited petitioner's remorse by departing downward from the eighteen-year minimum requested by the prosecution. Defense counsel filed a motion to reconsider the sentence in November 1999, which the trial judge denied, reasoning that the sentence was not imposed in passion, was legal, and was based on petitioner's criminal history and the danger he posed to society.

¶ 4. Gould filed a pro se motion for post-conviction relief in superior court, alleging that his "conviction and/or sentence are in violation of the United States and Vermont Constitutions." In particular, he alleged that the trial judge committed judicial misconduct by attempting to coerce a plea agreement with off-the-record threats of a lengthy sentence if Gould proceeded to trial and was found guilty. Gould also alleged that, in the same discussion, the judge promised a lighter ten-year minimum sentence if Gould would plead guilty. Gould further claimed that the failure of his trial attorney and the prosecution to object to the alleged coercion constituted ineffective assistance of counsel and prosecutorial misconduct.

¶ 5. Gould included a request for appointment of counsel in his motion. Because the Prisoner's Rights Office had a conflict of interest, the superior court appointed Robert Andres as Gould's counsel. Attorney Andres also had a conflict of interest and was replaced as counsel in September by Martin Maley. By March 2001, attorney Maley had joined the Public Defender's Office and had been replaced by William Norful.

¶ 6. After a status conference, Norful told Gould that he would call him to follow up about additional witnesses that Gould hoped would have information favorable to his petition. When Norful did not call, Gould sent him a letter indicating that there were more witnesses in the case. Norful had decided, however, that to "avoid any misunderstandings" all future attorney client communication would be in writing. Norful replied accordingly with a two-page letter that made cursory review of each of Gould's three claims. Norful wrote the letter prior to conferring with Gould's trial counsel regarding the events at issue in Gould's petition. In the letter, Norful told Gould that there were insufficient grounds on which to present Gould's claims to the court. In essence, Norful told Gould he would not represent him.

¶ 7. At that point, Gould apparently became concerned that Norful would not zealously advocate on his behalf. Gould filed a pro se motion to bar attorney Norful from amending the petition until Norful contacted him to talk about the case. In that motion, petitioner requested the court forward a letter to Norful because he claimed that Norful had not contacted him and would not return his telephone calls. The court refused to act on the pro se motion or to forward Gould's mail to his attorney. After receiving notice that the superior court would not act on his pro se motion, Gould informed the court that he had written a letter to the professional conduct board about his attorney.

¶ 8. Norful responded by filing a one sentence motion to withdraw stating that "counsel and client have divergent theories of case progression." At the hearing on Norful's motion to withdraw, Norful informed the judge that Gould's petition alleged prosecutorial and judicial misconduct, as well as ineffective assistance of counsel. Norful then went on to state that he could not "find" evidence in the record to support his client's claims. Norful explained that he moved to withdraw because the "necessary . . . attorney client relationship" was adversely affected and Norful felt he could not "communicate with any competence regarding [Gould's] claims." He continued by stating that, as Gould's appointed counsel, he could "not find grounds, not even colorful grounds, not even a scintilla of evidence that [he could] come forward and make a plausible claim to [the] merits before the court.".

¶ 9. The judge proceeded to explore the steps that Norful had taken to investigate Gould's claims. Norful described his review of the relevant transcripts and his approximately forty-five minute discussion with Gould's trial counsel. For his part, Gould tried to provide more detail about the communication between him and Norful until the judge interjected that she was not going to get into the middle of attorney-client correspondence. She stated that: "[a]ll I'm trying to do is figure out whether or not there is either a conflict or a problem of incompetence." The judge then reiterated the actions that Norful claimed he had taken in furtherance of Gould's petition, and announced that she was satisfied that Norful had been competent, thorough, and responsible. She then told Gould that he was not entitled to more assistance than Norful had already provided him and that "based on what [she] had seen, there does not appear to be grounds for the Court to appoint another attorney for [Gould]."

¶ 10. After noting the lack of objection from the State, the judge granted Norful's motion to withdraw. She then announced that she would not appoint another attorney for Gould, even though, as Gould pointed out, he had not requested that Norful be removed. She then told Gould "if you want to proceed on your own, that's fine, or get an attorney yourself, that's fine." Later, Gould renewed his motion for appointment of counsel. The judge denied Gould's motion on grounds that the matter was fully considered at the hearing on the motion to withdraw.

¶ 11. In January 2002, the State filed a motion for summary judgment accompanied by a memorandum of law, a statement of undisputed facts, and six exhibits. The motion raised, among other things, Gould's failure to present any nonhearsay evidence in support of his three claims. In support of its argument, the State cited several Vermont cases as well as the text of V.R.C.P. 56. Gould filed a handwritten motion for extension of time to respond because he had been moved to another correctional facility in Virginia and it did not have any Vermont law books. The judge granted Gould an extension, but Gould was never able to access any legal resources and was forced to respond to the State's motion without access to Vermont statutes, rules, and case law.

¶ 12. The same judge who granted Norful's motion to withdraw granted the State's motion for summary judgment. Eight months earlier, she had heard Gould's court-appointed advocate describe how his review of Gould's case had not produced "even a scintilla" of supporting evidence. Not surprisingly, after reviewing the State's motion for summary judgment, the judge concluded that Gould had failed in his unguided attempt to produce the evidence necessary to survive summary judgment. Gould appeals from that ruling, asserting solely that the court erred in failing to appoint substitute counsel to assist him with the presentation of his petition after it allowed Norful to withdraw.

I.

¶ 13. Petitioner's statutory right to the assistance of counsel on his first PCR motion was improperly denied when the trial court refused his request to appoint new counsel after allowing his previous counsel to withdraw. The Public Defender Act (PDA), enacted in 1972, created a statutory framework for implementing the constitutional right to counsel for accused indigents at trial and on appeal. 1971, No. 161 (Adj. Sess.), § 6; see also State v. Wool, 162 Vt. 342, 348-49, 648 A.2d 655,659-60 (1994) (discussing the origin and purpose of the PDA). The PDA also takes the additional step of guaranteeing the right to counsel on post-conviction review to needy individuals who have been convicted of crimes, even though providing such assistance is not constitutionally compelled. 13 V.S.A. § 5233(a)(3); see also In re Chapman, 155 Vt. 163, 166, 581 A.2d 1041, 1043 (1990) (recognizing that there is no federal constitutional right to counsel on post-conviction review). The statute provides, that "[a] needy person who is . . . being detained under a conviction of a serious crime, is entitled to be represented by an attorney to the same extent...