In re Grega

• Decision Date: 29 August 2003
• Docket Number: No. 02-291.,02-291.
• Citation: 833 A.2d 872
• Parties: In re John GREGA.
• Court: Vermont Supreme Court

833 A.2d 872

In re John GREGA.

No. 02-291.

Supreme Court of Vermont.

August 29, 2003.

Motion for Reargument Denied September 24, 2003.

Present DOOLEY, JOHNSON, SKOGLUND, JJ., and FREDERIC W. ALLEN, C.J. (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Petitioner John Grega appeals from a decision of the Windham Superior Court denying his petition for post-conviction relief alleging ineffective assistance of both his trial and appellate counsel. The court found that petitioner did not meet his burden of proof in demonstrating that fundamental errors committed by his attorneys rendered his convictions and/or sentences defective. On appeal, petitioner claims that the superior court committed several errors in denying his petition. We affirm.

¶ 2. In 1995, petitioner was convicted by a jury of aggravated murder under 13 V.S.A. § 2311(a)(8), and aggravated sexual assault under 13 V.S.A. § 3253(a)(1). He was originally sentenced on both convictions. On appeal, this Court upheld petitioner's conviction of aggravated murder and sentence of life without the possibility of parole, and vacated his conviction and sentence for aggravated sexual assault on double jeopardy grounds. See State v. Grega, 168 Vt. 363, 721 A.2d 445 (1998). ¶ 3. In 2002, petitioner filed a petition for post-conviction relief in the superior court pursuant to 13 V.S.A. § 7131, claiming he was denied his right to effective assistance of counsel guaranteed under the Sixth and Fourteenth amendments to the United States Constitution. Specifically, petitioner claimed that his trial counsel failed: (1) to provide timely notice of intent to impeach a witness with a prior criminal conviction as required by V.R.Cr.P. 26(c); (2) to preserve for appeal the issue of immunity for a defense witness; and (3) to challenge his indictments for aggravated murder and aggravated sexual assault on double jeopardy grounds. Additionally, petitioner claimed his appellate counsel failed to claim on appeal that: (1) the court should have granted his motion for mistrial on due process grounds when a child witness was declared incompetent to testify after voir dire; and (2) the mandatory sentence of life without parole for aggravated murder is unconstitutional.

¶ 4. During the PCR hearing, petitioner presented expert testimony by attorney Brad Stetler. Attorney Stetler testified that the performance of petitioner's trial and appellate counsel fell below reasonable standards of professional competence. However, he offered no testimony as to how counsels' performance prejudiced petitioner. The State presented opposing expert testimony from attorney David Sleigh, who testified that the only failure of either counsel that fell below reasonable standards of professional competence was trial counsel's failure to provide notice under V.R.Cr.P. 26(c). Attorney Sleigh further opined that none of trial or appellate counsels' alleged failures prejudiced petitioner. Petitioner asserted several other instances of ineffective assistance of counsel, but did not provide expert testimony in support of those alleged failures. The superior court found that petitioner's additional claimed failures were not the type that could be established without expert testimony, and did not assess them individually. The court instead considered them as background against which it evaluated assistance of counsel generally.

¶ 5. Based on the evidence presented, the Windham Superior Court was "left with the distinct impression" that petitioner's trial counsel "vastly exceeded" the Vermont standard of professional competence. The court further found that the alleged failures of petitioner's appellate counsel constituted valid tactical decisions, and were overshadowed by the "numerous significant issues" that counsel raised on appeal. The court determined that even if the alleged failures fell below the professional norm, there was no reasonable probability that any affected the outcome of the petitioner's trial or appeal. The court therefore concluded that petitioner had not met his burden of proof. This appeal followed.

¶ 6. Post-conviction relief is a limited remedy. See 13 V.S.A. § 7131. On a petition for post-conviction relief, the petitioner has the substantial burden of proving "by a preponderance of the evidence, that fundamental errors rendered his conviction defective." In re Liberty, 154 Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (mem.). On an appeal from a post-conviction relief decision, we review the court's findings by a clearly erroneous standard. State v. Bristol, 159 Vt. 334, 336, 618 A.2d 1290, 1291 (1992). If the findings are supported by any credible evidence, and the conclusions reasonably follow therefrom, this Court will not disturb the trial court's judgment. Id.

¶ 7. While petitioner's brief states a multiplicity of alleged errors, his claim on appeal is essentially one of ineffective assistance of counsel. Under both the United States and Vermont Constitutions, a petitioner has the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re Miller, 168 Vt. 583, 584, 718 A.2d 419, 420 (1998) (mem.). The appropriate standard for reviewing claims involving ineffective assistance of counsel is whether a lawyer exercised "`that degree of care, skill, diligence and knowledge commonly possessed and exercised by reasonable, careful and prudent lawyers in the practice of law in this jurisdiction.'" Russo v. Griffin, 147 Vt. 20, 24, 510 A.2d 436, 438 (1986) (quoting Cook, Flanagan & Berst v. Clausing, 73 Wash.2d 393, 438 P.2d 865, 867 (1968)). To demonstrate ineffective assistance of counsel, a petitioner must show by a preponderance of the evidence that: (1) his counsel's performance fell below an objective standard of performance informed by prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the proceedings would have resulted in a different outcome. In re Plante, 171 Vt. 310, 313, 762 A.2d 873, 876 (2000); State v. Bristol, 159 Vt. at 337, 618 A.2d at 1291-92; see also Strickland, 466 U.S. at 687-94,104 S.Ct. 2052. Unless petitioner is able to satisfy both prongs of the test, "it cannot be said that the conviction or ... sentence resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687,104 S.Ct. 2052. In making this showing, petitioner cannot rely on the distorting effects of hindsight, and must surpass the strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Plante, 171 Vt. at 313,762 A.2d at 876; In re Pernicka, 147 Vt. 180, 183, 513 A.2d 616, 618 (1986); see also Strickland, 466 U.S. at 689,104 S.Ct. 2052.

¶ 8. Petitioner challenges the court's determination that his counsels' alleged failures, on which he presented expert testimony, did not fall below a reasonable level of professional competence. First, petitioner asserts that the superior court erred in failing to find that petitioner's trial counsel provided ineffective assistance of counsel when counsel did not preserve the issue of immunity for a defense witness and subsequently did not place the defense witness on the stand because there was no grant of immunity. Petitioner argues that the defense witness had evidence that was clearly exculpatory and crucial to his case. The State's expert testified that the trial counsel's decisions regarding this defense witness could not be deemed unprofessional errors, while petitioner's expert noted that these decisions fell below the professional standards. The superior court thoroughly weighed the evidence, considered both arguments before it, and found petitioner's basic premise faulty. See In re Stevens, 144 Vt. 250, 254-55, 478 A.2d 212, 214-15 (1984) (higher court will yield to the judgment of the trial court where there is conflicting evidence at a post-conviction petition hearing). The court highlighted the concession of petitioner's expert, noting "it was not clear to him what [the defense witness] might have said." At the PCR hearing, the superior court considered the testimony of the potential witness's attorney, together with the evidence, and determined:

[N]either [the attorney's] testimony there nor [the attorney's] statements to the trial court at the time immunity was being discussed indicate to this court that [this witness's] testimony would have been exculpatory—much less clearly exculpatory and crucial to the defense. Nor is there anything to suggest that the State was deliberately attempting to distort the fact-finding process in declining to offer [this witness] immunity.

In short, no one knew then what [she] would have said if called, and no one knows now. Petitioner acknowledges this uncertainty, but suggests that the uncertainty is a reason to grant relief. Because the burden of proof to show error and prejudice is on him, however, this uncertainty is instead fatal to his argument.

After evaluating the evidence before it, the court found petitioner unable to prove that counsel's actions fell below reasonable standards of professional competence. We agree, and see no clear error in the court's evaluation.

¶ 9. Petitioner also finds fault with the superior court's determination that he was not prejudiced by his trial counsel's failure to provide notice pursuant to V.R.Cr.P. 26(c), a failure the court determined to fall below the reasonable standards of professional competence. At the heart of petitioner's defense strategy was the theory that a particular witness, Brian Comi, committed the murder for which petitioner was charged. Petitioner intended to use Comi's prior conviction of forgery for impeachment purposes, but petitioner's trial counsel failed to provide adequate notice pursuant to V.R.Cr.P. 26(c). At the PCR hearing, petitioner's expert and the State's expert agreed that this was...