In re Piquette
| Decision Date | 17 December 2021 |
| Docket Number | 21-072 |
| Citation | 274 A.3d 829 |
| Parties | IN RE David E. PIQUETTE |
| Court | Vermont Supreme Court |
Joshua Martin, Saint Albans, for Petitioner-Appellant.
David Tartter, Deputy State's Attorney, Montpelier, for Respondent-Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Howard, Supr. J. (Ret.), Specially Assigned
¶1. Petitioner appeals an order of the superior court granting summary judgment to the State in his petition for post-conviction relief. Specifically, petitioner appeals that portion of the order concluding that even if petitioner's trial counsel erred by not informing him of a plea offer, petitioner was not prejudiced by the error. Because petitioner did not file a response to the State's motion for summary judgment until after the superior court issued its order granting the motion and does not challenge the court's subsequent order denying his request to set aside the judgment and reopen, we affirm.
¶2. In December 2011, the State charged petitioner with kidnapping-sexual assault, aggravated sexual assault, sexual assault, and domestic assault. In March 2012, the State conveyed an offer of three to twelve years to serve if petitioner agreed to plead guilty to unlawful restraint and first-degree aggravated domestic assault. Petitioner maintains that his trial counsel did not communicate the plea offer to him.1 The matter proceeded to trial in late 2012. Petitioner testified at trial and denied having committed any of the charged crimes. A jury convicted him of aggravated sexual assault and domestic assault and acquitted him of kidnapping and unlawful restraint. Petitioner was sentenced to a term of ten years to life on the aggravated sexual assault conviction, and twelve to eighteen months to serve on the domestic assault conviction. This Court affirmed both convictions. State v. Piquette, No. 2013-329, 2014 WL 3714959, at *1 (Vt. July 24, 2014) (unpub.mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo13-329.pdf [https://perma.cc/G6MY-WX6Q].
¶3. Petitioner initiated a post-conviction relief (PCR) case in 2014, and in January 2016, petitioner filed an amended complaint in the civil division (PCR court). The amended complaint alleged his trial counsel made multiple errors during the pretrial and trial phases, including failing to communicate the March 2012 plea offer. On March 1, 2019, the State moved for summary judgment. The court granted petitioner three extensions of time to respond to the State's motion. Petitioner was assigned new counsel on August 13, 2019.2 The final time extension had expired by January 2020. Still, petitioner had not filed an opposition to the State's motion. On October 13, 2020, the court issued an order granting the State's motion.
¶4. In relevant part, the order concluded that, assuming petitioner's trial counsel did not communicate the March 2012 plea offer to him, petitioner could neither meet his burden to prove that he would have accepted the offer, nor that the trial court would have accepted the plea agreement.3 The court reasoned that because petitioner testified as to his innocence at trial, it could see no scenario in which petitioner could have admitted to the factual bases underlying the State's proposed charges. Thus, petitioner would either have had to admit that he perjured himself at trial or presented some evidence of the possibility of an Alford plea.4 Seeing no evidence of an Alford plea, the court opined that post-conviction relief could not be based on the premise that a petitioner would have to admit to perjury in order to prevail.
¶5. Petitioner filed a motion to set aside the judgment on October 14, 2020, the day after the court issued its order, and filed an opposition memorandum to summary judgment on October 15, 2020. Petitioner's motion to set aside the judgment essentially argued that the seriousness of the purported error—not communicating a plea offer—necessitated a response to the State's motion for summary judgment from petitioner, including a "full and fair hearing on the matter." Petitioner did not cite a rule of civil procedure, but instead to three different rulings from this Court for the proposition that judicial economy is best served when courts allow claims before them to be decided on the merits, rather than on procedural grounds. Petitioner's opposition memorandum, in relevant part, alleged that the March 2012 plea offer was never relayed to him.
¶6. On March 29, 2021, the court issued an order denying petitioner's motion to set aside the judgment. The court found the cases petitioner cited unpersuasive and concluded that Vermont Rules of Civil Procedure 59 and 60 were not applicable. The court cited Courtyard Partners v. Tanner, 157 Vt. 638, 595 A.2d 287 (1991) (mem.), for the proposition that the court could engage in a balancing between petitioner's failure to timely respond to the State's motion and his relative position on the merits. If petitioner's "position on the merits is so strong that it would be unjust to affirm the judgment," the court may excuse "even a willful" failure to respond. Id. at 639, 595 A.2d at 288. The court then "reviewed [petitioner's] filings in order to determine whether a miscarriage of justice would result if the court declined to reopen." The court concluded that petitioner's opposition memorandum did not present new information sufficient to change its summary judgment analysis, and that a miscarriage of justice would not result from denying his motion to reopen.
¶7. On April 2, 2021, petitioner appealed to this Court from "the most recent decision in this matter, granting the State's Motion for Summary Judgment, entered on October 13, 2020." On appeal, petitioner argues that the court incorrectly concluded the March 2012 plea offer would not have been accepted by the trial court, that the court applied the wrong legal standard to petitioner's burden to show that the trial court would have accepted the plea offer, and that petitioner is entitled to specific performance as a remedy for his alleged constitutional deprivations. Petitioner does not challenge the court's March 29, 2021, order denying his motion to set aside the judgment.5 The State counters that petitioner waived his arguments because he failed to timely file a response to its summary judgment motion. We agree.
¶8. Petitioner waived his arguments in this appeal when he failed to timely respond to the State's motion for summary judgment. Zlotoff Found., Inc. v. Town of South Hero, 2020 VT 25, ¶ 26, 212 Vt. 63, 231 A.3d 1146 (citing Progressive Ins. Co. v. Brown ex rel. Brown, 2008 VT 103, ¶ 9, 184 Vt. 388, 966 A.2d 666 ). Petitioner asked for, and received, three extensions of time to respond. Petitioner did not respond until ten months after the final extension expired—the day after the PCR court issued its order.
¶9. Furthermore, petitioner does not appeal the court's order denying his motion to set aside the judgment and reopen proceedin...
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