In re Kirby

• Decision Date: 24 August 2012
• Docket Number: No. 11–291.,11–291.
• Citation: 58 A.3d 230,2012 VT 72
• Court: Vermont Supreme Court
• Parties: In re Paul KIRBY.

58 A.3d 230

2012 VT 72

In re Paul KIRBY.

No. 11–291.

Supreme Court of Vermont.

Aug. 24, 2012.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, Associate Justices.

ENTRY ORDER

¶ 1. In 2006, Paul Kirby was charged with five counts of possessing child pornography after a search of his computer revealed five different video depictions of sexual conduct by a child or children. Evidence suggested that each video was downloaded independently and stored as a separate file on petitioner's computer. Petitioner pled guilty to three counts of possession in exchange for dismissal of the remaining two counts. Petitioner was sentenced to three concurrent prison terms of four to fifteen years.

¶ 2. In 2008, Kirby, pro se, filed a petition for post-conviction relief (PCR), and amended the petition with the assistance of counsel in 2009. The petition contained two claims: (1) that petitioner received ineffective assistance of counsel because his counsel failed to research, investigate, and inform him of the possibility of asserting a challenge to the multiple charges of possession that could have resulted in the five charges being reduced to one; and (2) because counsel failed to advise him on this legal theory prior to entering his plea agreement, petitioner's subsequent guilty pleas were not entered knowingly and voluntarily. Petitioner moved for summary judgment on the ineffective assistance of counsel claim. The State opposed petitioner's motion and cross-moved for summary judgment on both claims. The superior court granted the State's motion for summary judgment. Petitioner appeals. We affirm.

¶ 3. Attorney Elizabeth Hibbits represented petitioner on the possession of child pornography charges through his conviction and sentencing. Petitioner was charged under 13 V.S.A. § 2827(a), which states that “[n]o person shall, with knowledge of the character and content, possess any photograph, film or visual depiction, including any depiction which is stored electronically, of sexual conduct by a child or of a clearly lewd exhibition of a child's genitals or anus.” The PCR petition asserted that, but for counsel's failure to advise him on or pursue a multiplicity challenge, petitioner's sentence would have been at most five years, rather than four to fifteen. Accompanying this motion, petitioner submitted a statement of uncontested material facts and an affidavit of expert opinion from an experienced criminal defense attorney stating that petitioner had been denied effective assistance of counsel. The expert opined that petitioner's attorney should have researched and pursued the claim that the multiple child pornography counts violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because “[a]ll five counts in this case arose from a single alleged possession occurring on September 25, 2006 by Mr. Kirby on his computer in his residence in Essex.” The affidavit acknowledged that “in 2007 this area of the law was in a state of development and uncertainty.” ^* With its motion for summary judgment, the State submitted a statement of uncontested material facts with an affidavit from Attorney Hibbits attesting that she researched the law and discussed the multiplicity defense with petitioner. Petitioner did not submit countervailing evidence disputing counsel's account.

¶ 4. The trial court granted the State's cross-motion and ruled against petitioner on both claims. Relying on Attorney Hibbits's uncontested assertion that she had “discussed and explored” whether the five videos could support five separate criminal counts with petitioner, and on petitioner's failure to file an opposition to the State's summary judgment motion, the court held that petitioner did not show that counsel failed to inform him of this possible defense or that he would have pled differently but for counsel's alleged failure. On appeal petitioner does not challenge the finding that Attorney Hibbits researched and discussed the law with him, but argues that counsel wrongly informed him that a multiplicity challenge was not a viable defense, and that he entered his guilty pleas based on this misunderstanding and, thus, his guilty pleas were not entered knowingly and voluntarily.

¶ 5. On an appeal of summary judgment, this Court applies a de novo standard of review. In re Barrows, 2007 VT 9, ¶ 5, 181 Vt. 283, 917 A.2d 490. Summary judgment is proper where there is no genuine issue of material facts and the movant is entitled to judgment as a matter of law. V.R.C.P. 56(a).

¶ 6. In the present case, there is no genuine issue of material fact. To the trial court, petitioner claimed that he “did not understand that there was (and is) an untested legal theory which had (has) the potential defense to cause all five counts to be subsumed within one. That legal theory was not even contemplated, let alone investigated, researched, and discussed with him.” In light of the lower court's findings that counsel did in fact research and discuss with petitioner a possible multiplicity challenge, petitioner's argument on appeal has shifted. Now, petitioner argues that he did not understand that he had a viable multiplicity defense because counsel told him such a defense was meritless. Counsel's affidavit confirms that she did not think the facts in petitioner's case supported such a challenge because petitioner's possession of five separate and individual files formed the evidentiary bases for five distinct counts of possession. Based on her understanding of the law, and the fact that “[t]here was no controlling legal authority at that time standing for the proposition that the charges were multiplicitous,” she advised petitioner that she doubted the defense would be supported by the evidence. She further shared her assessment of “the potential pitfalls of asking for a hearing where the video evidence might be presented to the Court that would ultimately determine Mr. Kirby's sentence.”

¶ 7. Was counsel's opinion that a multiplicity defense would fail flawed? And, would any misunderstanding on the part of petitioner entitle him to post-conviction relief? On appeal petitioner does not raise his ineffective assistance of counsel claim to this Court. Rather, he contends that his pleas were based on a misunderstanding effectuated by counsel. As a result, though we do not address the adequacy of counsel's representation as a separate claim, it is necessary to address whether counsel's opinion on the viability of a multiplicity challenge was reasonable before determining if her opinion undermined petitioner's understanding so as to make his pleas involuntary.

¶ 8. As noted, petitioner was charged with violating 13 V.S.A. § 2827(a), which states that “[n]o person shall ... possess any photograph, film or visual depiction, including any depiction which is stored electronically, of sexual conduct by a child or of a clearly lewd exhibition of a child's genitals or anus.” Petitioner argues that under the language of this statute he should be charged with only one count of child pornography possession, rather than five (i.e., one count for each separate image file of pornography found on his computer). Petitioner reasons that the word “any” leaves the Legislature's intended unit of prosecution unclear because it has both singular and plural meaning. He argues that where there is statutory ambiguity the rule of lenity should be applied, effectively reducing his five counts of possession to a single charge.

¶ 9. Post-conviction relief is a limited remedy, intended to correct fundamental errors in the judicial process. In re Laws, 2007 VT 54, ¶ 9, 182 Vt. 66, 928 A.2d 1210;State v. Bristol, 159 Vt. 334, 337, 618 A.2d 1290, 1291–92 (1992); In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981). It is not designed to be a substitute for a merit-based appeal, nor should it be a vehicle for the introduction of legal arguments not raised below. As such, whether a multiplicity challenge to 13 V.S.A. § 2827(a) would have been successful is not the issue in this case. Just as we are not permitted to judge an attorney's competence based on whether a tactical decision was ultimately successful, we decline to stand on hindsight and decide whether a given tactic would have been ultimately successful had it been pursued. In re Dunbar, 162 Vt. 209, 212, 647 A.2d 316, 319 (1994); In re Mecier, 143 Vt. 23, 32, 460 A.2d 472, 477 (1983). Thus we look only to whether counsel's decision not to raise this challenge constitutes a fundamental error.

¶ 10. In 2007, when counsel would have researched the potential for a multiplicity challenge, the state of the law was in flux and, as the court noted, “there was no controlling authority on whether, or under what circumstances, 13 V.S.A. § 2827(a) supports multiple charges of possession of child pornography.” Even petitioner's expert stated in his affidavit: “Suffice it to say that in 2007 this area of the law was in a state of development and uncertainty.” Several states had already dismissed multiplicity arguments in child pornography statutes and upheld separate charges for each piece of child pornography found in a single seizure. See, e.g., Fink v. State, 817 A.2d 781, 788 (Del.2003) (holding thirty counts of child pornography possession did not violate double jeopardy even though state could not prove that images were obtained through multiple downloads); State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437, 449 (2002) (upholding a conviction of twenty-eight counts of possession, one for each of twenty-eight image files located on two computer disks); State v. Mather, 264 Neb. 182, 646 N.W.2d 605, 610 (2002) (affirming that eighteen counts of visual depiction of sexually explicit conduct involving a child based on eighteen separate and different photographs did not violate double jeopardy). In Multaler and Mather, the statutory language was very similar to the language in 13 V.S.A. § 2827(a)...