In re Kimmick

• Decision Date: 21 June 2013
• Docket Number: No. 11–378.,11–378.
• Citation: 2013 VT 43,72 A.3d 337
• Court: Vermont Supreme Court
• Parties: In re William KIMMICK.

72 A.3d 337

2013 VT 43

In re William KIMMICK.

No. 11–378.

Supreme Court of Vermont.

June 21, 2013.

William A. Kimmick, Pro Se, Beattyville, Kentucky, Petitioner–Appellant.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Respondent–Appellee.

Matthew S. Stern of Gravel & Shea PC, Burlington, for Amicus Curiae Gravel & Shea PC.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Thomas Tarnow (on the Brief), Montpelier, for Amicus Curiae Office of the Defender General.

Present: REIBER, C.J., DOOLEY, SKOGLUND and BURGESS, JJ., and BENT, Supr. J., Specially Assigned.

REIBER, C.J.

¶ 1. Petitioner William Kimmick appeals from a judgment of the superior court, civil division, denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel at sentencing. Petitioner contends the trial court erred in: (1) granting his assigned PCR counsel's motion to withdraw; and (2) rejecting petitioner's claim that his trial attorney committed fundamental errors affecting the sentence. In addition, amicus curiae appointed by the Court to assist petitioner asserts that the Defender General's post-conviction merit-review procedures violated petitioner's due process rights. We affirm.

¶ 2. Although lengthy, a full statement of the procedural history is helpful to understand the issues; additional material facts will be set forth in the discussion that follows. Petitioner was originally charged with second-degree murder in the killing of his ex-wife, Katherine Kimmick, in January 2004. In November 2004, petitioner entered a negotiated plea of guilty to an amended charge of manslaughter. The plea bargain allowed both parties to argue for any lawful sentence. Following a contested sentencing hearing in April 2005, defendant was sentenced to fourteen to fifteen years to serve. Defendant appealed the sentence, alleging that the trial court erred in permitting unsworn victim-impact testimony, allowing a nonvictim to testify, and imposing a sentence in which the minimum and maximum terms were effectively the same. We affirmed. State v. Kimmick, 2007 VT 45, 181 Vt. 635, 928 A.2d 489 (mem.).

¶ 3. In April 2008, petitioner filed a pro se PCR petition, asserting that his trial attorney had provided ineffective assistance at sentencing in several respects. Petitioner claimed principally that counsel violated his right to allocution under Vermont Rule of Criminal Procedure 32(a)(1)(C) by threatening to withdraw if petitioner testified at the sentencing hearing about the victim's alcohol problem and violent propensities. Petitioner also asserted that trial counsel was deficient in failing to correct or rebut allegedly inaccurate information in a psychiatric evaluation, as well as misstatements in the presentence investigation report (PSI); failing to object to unsworn victim-impact testimony and the testimony of a nonvictim witness; and failing to present an adequate case at the hearing. The lengthy PCR petition was supported by a number of exhibits.

¶ 4. Shortly after the filing of the petition, the trial court appointed Seth Lipschutz of the Prisoner's Rights Office to represent petitioner. In May 2008, attorney Lipschutz wrote to petitioner informing him that the state's attorney had consented to a new sentencing hearing but would oppose the imposition of a different sentence. Petitioner rejected the offer. Following a hearing in June 2008, the trial court granted attorney Lipschutz's motion to withdraw and appointed attorney Mark Furlan to represent petitioner.

¶ 5. The record discloses a number of status conferences with attorney Furlan and the state's attorney over the next several months involving efforts to resolve the complaint. A September 3, 2009, letter to the court from attorney Furlan, however, explained that negotiations with the state's attorney had broken down and that his new plan was to attempt to find an expert attorney to support petitioner's ineffective-assistance claims. A docket entry from a status conference in December 2009, however, contains a notation that Furlan had not been able to obtain an expert witness and had decided to depose petitioner's trial attorney, David Williams, as an alternative step. Williams was duly deposed in January 2010. The following month, attorney Furlan informed the court that he had referred the matter to attorney Charles Martin for a second opinion. Martin apparently had a conflict of interest, and the matter was referred to attorney Adele Pastor.

¶ 6. In late April 2010, attorney Furlan filed a motion to withdraw, informing the court that his review of the case had not revealed any colorable claims, and that in accordance with the Defender General's policy, the file had been reviewed by a second, experienced PCR attorney, Ms. Pastor, who had reached the same conclusion. The Defender General simultaneously filed a letter with the court stating that his office had reviewed the matter, determined that petitioner's claims did not support representation under 13 V.S.A. § 5233(a)(3)¹, and would not pay for further representation of petitioner.

¶ 7. Petitioner filed an opposition to the motion, asserting that attorney Furlan had waived the opportunity to withdraw and that the Defender General's screening process did not comply with § 5233. Shortly thereafter, petitioner filed an amended pro se petition that focused on the claim that counsel was ineffective and violated petitioner's right to allocution by threatening to withdraw if petitioner blamed the victim and failed to accept responsibility for the crime. Following a hearing in June 2010, the trial court issued an order deferring a ruling on the withdrawal motion until attorney Furlan had the opportunity to review the amended petition and consult with petitioner. Thereafter, Furlan wrote the court explaining that he had spoken at length with petitioner, reviewed the file and the amended petition, and remained of the view that the PCR claims lacked merit.

¶ 8. The trial court granted the motion to withdraw in late July 2010. Petitioner, in response, filed a notice of pro se appearance and motion for appointment of a legal expert. Following a hearing on the motion, another judge issued an order finding that petitioner had stated a legitimate basis for appointment of an expert, and “requested” that attorney Furlan review the motion and file any objection to his reappointment as counsel of record. In a written response objecting to his reappointment, attorney Furlan stated that his withdrawal had followed more than a year of investigation and research into petitioner's claims, and the decided judgment of himself and two other attorneys that they lacked merit. The trial court thereafter issued an order, dated October 14, 2010, finding attorney Furlan's objections to be “persuasive” and declining to reappoint him as counsel for petitioner. In the same order, the court granted petitioner thirty days in which to file a proposal identifying an expert witness and the estimated cost of his or her services. Petitioner subsequently requested, and the court granted, an extension to January 2011 to locate an expert.

¶ 9. Petitioner did not identify an expert witness to support the claims. Instead, in February 2011, he moved for summary judgment, relying on the deposition testimony of attorney Williams and his own affidavit. The State filed a cross-motion for summary judgment in March 2011, and the court issued a thirty-three-page ruling in October 2011. Following an exhaustive review of the record and analysis of the claims, the court concluded that attorney Williams had provided effective assistance of counsel, and that petitioner was not prejudiced by his strategic choices. Accordingly, the court entered judgment in favor of the State. This appeal followed.

¶ 10. Petitioner claims a procedural infirmity in the trial court's decision to grant PCR counsel's motion to withdraw. Petitioner argues that attorney Furlan waived the right to withdraw by representing petitioner for over two years, and that the review process for determining the right to representation under 13 V.S.A. § 5233(a)(3) fails to adequately protect a defendant's interests. In a similar vein, amicus curiae appointed by the Court asserts that allowing appointed counsel to withdraw without adequate oversight of the merit-review determination violates due process.

¶ 11. We considered the procedure for withdrawing from representation in a PCR proceeding in In re Bailey, holding that “[t]here is no constitutional or statutory right to insist that counsel elaborate on their motions to withdraw, and [that] it would undermine the intent of 13 V.S.A. § 5233(a) to require counsel to do so.” 2009 VT 122, ¶ 15, 187 Vt. 176, 992 A.2d 276. Petitioner and amicus assert, however, that while Bailey might apply where appointed counsel moves to withdraw following an initial review of the record, it should not control where, as here, counsel has expended considerable time, effort, and resources investigating the claims before moving to withdraw. In these circumstances, it is argued, the petitioner has acquired a property interest that affords protection from arbitrary action and requires, “[a]t a minimum, information ... sufficient to confirm that counsel's decision [to withdraw] is not arbitrary or based on improper considerations outside of § 5233(a)(3).”

¶ 12. Whatever merit may inform the argument, we need not resolve it here, as the record—summarized above—clearly shows that the court's decision to grant counsel's motion to withdraw was not arbitrary or uninformed, and fully satisfied whatever minimal due process protections against unreasoned action a petitioner in these circumstances might enjoy. Counsel regularly apprised the court of his efforts and litigation strategies on behalf of petitioner, explained that he could not locate an expert to support the claims of...