In re Plante

• Decision Date: 20 October 2000
• Docket Number: No. 99-096.,99-096.
• Citation: 762 A.2d 873
• Court: Vermont Supreme Court
• Parties: In re Robert W. PLANTE.

762 A.2d 873

In re Robert W. PLANTE.

No. 99-096.

Supreme Court of Vermont.

October 20, 2000.

Robert Appel, Defender General, and Seth Lipschutz, Prisoners' Rights Office, Montpelier, for Petitioner-Appellant.

Dan M. Davis, Windham County State's Attorney, and Matthew T. Jones, Deputy State's Attorney, for Respondent-Appellee.

Present: DOOLEY, MORSE and SKOGLUND, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned.

SKOGLUND, J.

Petitioner Robert W. Plante, who was convicted of first-degree (felony) murder and sentenced to a term of imprisonment of fifty years to life, appeals the superior court's decision denying his petition for post-conviction relief (PCR), which is based on a claim of ineffective assistance of counsel. We affirm.

Petitioner was charged with murdering Glenn Michaelson in Williamsville, Vermont on May 31, 1992. He was charged with felony murder based on the allegation that he had stolen items from the decedent after the murder, including the decedent's car. Two attorneys were assigned as petitioner's trial counsel. In December 1992, after a defense investigator uncovered information suggesting that the decedent was involved in selling drugs, the State offered to recommend a sentence of twenty-five years to life imprisonment if petitioner would plead guilty to second-degree murder. The offer was not accepted.

Shortly before trial, the State offered to recommend a sentence of twenty-to-fifty years in exchange for petitioner's plea of guilty to second-degree murder. Petitioner's attorneys thought the plea offer was of little practical advantage, however, because it did not guarantee against petitioner serving a lengthy sentence well beyond the minimum term. One of the attorneys advised petitioner to reject the offer. The other one described the offer as "steep," but told petitioner that the final decision was his to make. Petitioner rejected the offer and elected to take his chances at trial.

Petitioner's attorneys presented alternative inconsistent defenses at trial. Their principal defense was that reasonable doubt existed as to whether petitioner was the murderer. As a secondary theme, they presented evidence of petitioner's diminished capacity due to intoxication at the time of the murder. They requested and received an instruction that the jury could consider such evidence in determining whether petitioner could have formed the intent necessary to commit felony murder.

Although defense counsel requested a diminished-capacity instruction, they did not request a second-degree murder instruction. The State requested an instruction on second-degree murder, but the trial court denied the request, ruling that because petitioner had been charged with felony murder, the jury would have to convict him either of first-degree murder or the lesser-included offense of manslaughter. See 13 V.S.A. § 2301 (murder committed in perpetration of robbery or burglary shall be first-degree murder). The jury found petitioner guilty of first-degree murder, and he was sentenced to fifty years to life imprisonment.

After this Court affirmed petitioner's conviction, see State v. Plante, 164 Vt. 350, 351, 668 A.2d 674, 675 (1995), he filed a PCR petition, claiming that his trial attorneys provided ineffective assistance by improperly advising him with respect to the State's plea offer, not adequately preparing and presenting a diminished-capacity defense, and failing to seek and obtain a second-degree murder instruction. Following two days of hearing, the superior court denied the petition, concluding that (1) defense counsel adequately conveyed the nature of the plea offer and the dangers of not accepting it, and, in any event, petitioner could not show that the district court would have accepted the State's proposed unlawful sentence; (2) defense counsels' tactical decisions regarding the defenses they presented at trial were well within the range of reasonably competent representation, and, further, petitioner failed to show that the outcome of the trial would likely have been different had defense counsel committed themselves exclusively to a defense of diminished capacity; and (3) the absence of a second-degree murder instruction most likely did not affect the jury's verdict. On appeal, petitioner reasserts the claims contained in his petition.

Petitioner has high hurdles to overcome in demonstrating that he is entitled to relief based on his PCR claim of ineffective assistance of counsel. Petitioner must show by a preponderance of the evidence that (1) his counsels' performance fell below an objective standard of performance informed by prevailing professional norms; and (2) there is a reasonable probability that, but for counsels' unprofessional errors, the proceedings against him would have turned out differently. See State v. Bristol, 159 Vt. 334, 337, 618 A.2d 1290, 1291-92 (1992). In making this showing, petitioner must first overcome the strong presumption that counsels' performance, absent the distorting effects of hindsight, fell within the wide range of reasonable assistance. See In re Pernicka, 147 Vt. 180, 183, 513 A.2d 616, 618 (1986). Petitioner must also overcome the strong presumption in the reliability of the underlying proceedings and must demonstrate that his counsels' inadequate representation caused a breakdown in the adversary process that rendered his conviction defective. See Bristol, 159 Vt. at 337,618 A.2d at 1292. This Court will uphold the superior court's judgment on appeal if there is any credible evidence to support the court's findings and its conclusions follow from those findings. See In re Dunbar, 162 Vt. 209, 211, 647 A.2d 316, 319 (1994).

I.

We first consider petitioner's argument that his attorneys failed to provide competent assistance with respect to their advice concerning the State's plea offer. Fundamental error at the plea bargain stage may invalidate a conviction. See Bristol, 159 Vt. at 337, 618 A.2d at 1292. The right to effective counsel is violated when an attorney fails to inform a defendant of a plea offer or when the attorney's incompetence causes a defendant to proceed to trial rather than plead guilty. See id. "Defense counsel has a duty to communicate to a client not only the terms of a plea bargain offer, but also its relative merits compared to the client's chances of success at trial." Id. at 338, 618 A.2d at 1292. Thus, courts have found ineffective assistance of counsel in cases when the defense attorney either advised the defendant not to accept a favorable plea bargain offer or gave the defendant false information during the plea negotiations. See id.

Petitioner argues that his trial attorneys failed in both respects — they misled him on the strength of the State's case and advised him to reject a favorable plea offer. Petitioner points out that his attorneys' assessment of the strength of the State's case did not comport with that of either expert at the PCR hearing or this Court in the original appeal. See Plante, 164 Vt. at 356, 668 A.2d at 678 ("The evidence brought to bear against defendant was overwhelming."). In petitioner's view, trial counsel then compounded their misjudgment of the strength of the State's case by encouraging him, a person they acknowledged was one of the least directing clients they had ever seen, to reject a plea offer that they described as "steep" and "harsh," when in fact it was unlawfully low.¹

We do not find these arguments persuasive. Rather, we concur with the superior court's judgment that, viewing objectively all of the circumstances at the time of trial, without the distorting effects of hindsight, trial counsels' advice to petitioner concerning the plea offer did not constitute ineffective assistance of counsel. The State's case was entirely circumstantial, unsupported by either a confession or an eyewitness. Trial counsel believed that petitioner was innocent, and that acquittal was a reasonable possibility because (1) an expert would testify that the fatal wounds were most likely inflicted by more than one assailant using different weapons; (2) some of the weapons used in the attack were never recovered; (3) another person staying at the house at the time of the murder allegedly slept through what probably was a prolonged struggle; (4) the decedent apparently had been involved in drug transactions that could have been a motivating factor for others to have committed the murder; and (5) petitioner's past criminal record did not include crimes of violence.

Defense counsel informed petitioner that he could be sentenced to life imprisonment without parole if he were convicted of first-degree murder.² Petitioner may not have been a self-directing individual, but the superior court found that defense counsel carefully explained the nature of the plea offer to petitioner, and that petitioner asked numerous questions, understood the nature of his choice, and ultimately made that choice after asking his attorneys whether they thought he should accept the offer. Defense counsel felt that the State's plea offer presented little practical advantage to petitioner because, based on their knowledge of the policies of the Department of Corrections, they believed that petitioner would have to serve a sentence far beyond the twenty-year minimum before having any realistic chance at parole. To their way of thinking, if petitioner were to accept the plea offer, he would be giving up any possibility of an acquittal or a manslaughter conviction without avoiding a very lengthy prison sentence.

As the case law demonstrates, these are not the types of circumstances that support a PCR petition for ineffective assistance of counsel. See People v. Curry, 178 Ill.2d 509, 227 Ill.Dec. 395, 687 N.E.2d 877, 887 (1997) (ineffective assistance found where defense counsel's recommendation to reject State's plea offer was predicated on plainly erroneous understanding of sentencing law rather than on...