In re Hernandez
| Decision Date | 03 September 2021 |
| Docket Number | No. 20-176,20-176 |
| Citation | 264 A.3d 456 |
| Parties | IN RE Laura HERNANDEZ |
| Court | Vermont Supreme Court |
Matthew F. Valerio, Defender General, and Annie Manhardt, Prisoners’ Rights Office, Montpelier, for Petitioner-Appellant.
Thomas J. Donovan, Jr., Attorney General, and Earl F. Fechter, Assistant Attorney General, Montpelier, for Respondent-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. Petitioner appeals a civil division order granting the State summary judgment in response to her petition for post-conviction relief (PCR), which alleged ineffective assistance of trial counsel. We conclude that the undisputed facts demonstrate that any error by counsel did not prejudice defendant and therefore affirm.
¶ 2. The following facts were undisputed for purposes of summary judgment. In December 2006, petitioner was charged with two counts of selling or distributing heroin in violation of 18 V.S.A. § 4233(b)(2). The charges were based on two sales of heroin by petitioner to an informant. Petitioner's first counsel was assigned in January 2007. The parties executed a discovery stipulation, requiring all affirmative defenses, including entrapment, to be noticed within ten days of the close of depositions. In September 2007, petitioner's first counsel withdrew and new counsel, Attorney Kolitch, was assigned. The parties engaged in extensive discovery, including depositions of various witnesses. Defendant did not notice any affirmative defenses.
¶ 3. On the first day of trial, in January 2009, Attorney Kolitch filed proposed jury instructions and in that proposal requested an entrapment instruction for the first time. The State objected to the proposed instruction on the basis that defendant had not timely asserted the defense in accordance with the parties’ scheduling order. The State argued that the late notice would prejudice the State because it had not had time to adequately prepare evidence or witnesses to respond to such a defense. The State also argued that there was insufficient evidence to support the defense. The court ultimately declined to instruct on entrapment, concluding that defendant had not made a timely request in accordance with the parties’ stipulation and that this delay prejudiced the State.
¶ 4. At trial, the State presented the testimony of the informant, who testified as follows. Petitioner and the informant were good friends and spoke frequently. They did favors for each other. The informant took legal and illegal drugs for chronic pain. Prior to the drug sales that led to the charges against defendant, the informant told petitioner that she was in extreme pain and called multiple times a day asking petitioner to help her out. The informant denied that she was begging or pressuring petitioner into providing illicit drugs. Petitioner did not present any evidence at trial.
¶ 5. During deliberations, the jury sent a question to the court asking whether it should consider whether petitioner was pressured by the informant to sell. The court answered: "You may consider the evidence of whether or not the defendant was pressured by the confidential informant and the terms of [the Informant Agreement] the same as you consider all other evidence." The jury found petitioner guilty.
¶ 6. Petitioner filed a motion for a new trial, arguing that the court erred in declining to instruct on the entrapment defense. The court denied the motion, concluding again that petitioner's request was untimely and that the late notice was prejudicial to the State. In addition, the court concluded that, in any event, the evidence did not support an instruction on entrapment. Petitioner was sentenced and then filed a motion for sentence reconsideration. Before that motion was resolved, petitioner entered a plea agreement resolving this and other cases. As part of the plea, petitioner agreed to withdraw her motion for sentence reconsideration and to give up all rights of appeal in connection with the criminal charges involved in the plea agreement.
¶ 7. In 2018, petitioner filed this PCR, arguing that Attorney Kolitch provided ineffective assistance of counsel in her criminal case by failing to timely raise an entrapment defense and to make constitutional arguments in support of allowing an instruction despite the late notice, and that she was prejudiced by Attorney Kolitch's failures. Both parties filed motions for summary judgment. The State argued that the facts did not support a prima facie case for ineffective assistance and that petitioner's claims had been intentionally bypassed when petitioner elected not to appeal from her criminal conviction.
¶ 8. The PCR court acknowledged that, typically, ineffective-assistance claims are not waived by failing to raise them on appeal. The court concluded, however, that in this case petitioner's claim of ineffective assistance was intertwined with the legal argument regarding the entrapment instruction insofar as petitioner alleged that Attorney Kolitch failed to meet professional standards by not raising the entrapment defense in a timely manner consistent with the scheduling stipulation. Because the question of whether the evidence warranted an instruction was central to whether the late notice prejudiced petitioner, the PCR court concluded that petitioner had deliberately bypassed her ineffective-assistance claim by waiving her right to appeal and contest the legal question of whether the evidence was sufficient to support an entrapment defense. Therefore, the court granted the State summary judgment. Petitioner filed this appeal.
¶ 9. This Court reviews a summary-judgment decision without deference to the trial court and applies the same standard as the trial court. In re Barrows, 2007 VT 9, ¶ 5, 181 Vt. 283, 917 A.2d 490. Summary judgment will be granted when the undisputed material facts show that a party is entitled to judgment as a matter of law. V.R.C.P. 56(a). A PCR provides a limited remedy to collaterally challenge a criminal conviction. See 13 V.S.A. § 7131 (). A PCR is not a substitute for a direct appeal. In re Laws, 2007 VT 54, ¶ 9, 182 Vt. 66, 928 A.2d 1210 (). Therefore, "[a] PCR may not raise an issue that was litigated in the criminal trial but deliberately bypassed on direct appeal." Id. ¶ 10. The deliberate-bypass doctrine applies to issues raised at trial and not argued on appeal unless the petitioner shows that the failure to raise the issue on appeal "was inadvertent, that appellate counsel was ineffective, or that extraordinary circumstances excused the failure to raise the issues on appeal." In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987). In general, deliberate bypass does not apply to ineffective-assistance claims because they may not be raised in a direct appeal. See State v. Lund, 168 Vt. 102, 105, 718 A.2d 413, 415 (1998) ().
¶ 10. In this case, the trial court concluded that although deliberate bypass did not directly apply, petitioner's ineffective-assistance claim could not be raised because it was so intertwined with her argument regarding the lack of an entrapment instruction. We do not reach the deliberate-bypass or waiver arguments because we conclude that the undisputed facts do not support a prima facie claim for ineffective assistance.
¶ 11. The standard for ineffective assistance of counsel is as follows:
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 Grega, 2003 VT 77, ¶ 7, 175 Vt. 631, 833 A.2d 872 (mem.).
¶ 12. Here, even if petitioner could prove the first part of the test—that her counsel acted below an objective standard of performance in failing to timely request an entrapment instruction—petitioner has failed to allege facts that support the second part of the ineffective-assistance test.
The undisputed facts demonstrate that there was insufficient evidence presented at trial to warrant an entrapment instruction and therefore petitioner cannot show that counsel's alleged error affected the result at trial.
¶ 13. Entrapment is an affirmative defense which a defendant has the burden to establish by a preponderance of the evidence. State v. George, 157 Vt. 580, 583, 602 A.2d 953, 955 (1991). The test for entrapment is objective and requires a showing that a person involved with law enforcement induced or encouraged the defendant to engage in the offense by "employing methods of persuasion or inducement that create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it." Id. (alteration omitted) (quotation omitted). Under the objective test, a particular defendant's reputation or predisposition to criminal activity is not relevant. See State v. Wilkins, 144 Vt. 22, 27, 473 A.2d 295, 297-98 (1983). The focus is on police conduct and its probable effect on a reasonable person. See George, 157 Vt. at 583, 602 A.2d at 955 ().
¶ 14. To be entitled to an instruction on an affirmative defense, a defendant "must establish a prima facie case on each of the elements of the defense asserted." State v. Knapp, 147 Vt. 56, 59, 509 A.2d 1010, 1011 (1986). If the evidence does not support a prima facie case, then the defendant is not entitled to an instruction on entrapment at all. When the facts do support a prima facie case for entrapment and there are factual disputes, the issue is a matter for the jury to...
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