Nash, In re, No. 86-401

• Docket Nº: No. 86-401
• Citation: 149 Vt. 63, 539 A.2d 989
• Case Date: December 11, 1987
• Court: United States State Supreme Court of Vermont

Page 989

539 A.2d 989 149 Vt. 63 In re Douglas A. NASH. No. 86-401. Supreme Court of Vermont. Dec. 11, 1987.

Charles S. Martin and John Boese, Law Clerk, on the brief, Barre, for petitioner-appellant.

[149 Vt. 64] Deborah A. Barnard, Bennington County Deputy State's Atty., Bennington, for respondent-appellee.

Page 990

Before [149 Vt. 63] ALLEN, C.J., and PECK, DOOLEY and MAHADY, JJ.

[149 Vt. 64] MAHADY, Justice.

The petitioner was convicted of attempted sexual assault after trial by jury. He appealed that conviction, and this Court affirmed. State v. Nash, 144 Vt. 427, 479 A.2d 757 (1984). A petition for post-conviction relief was denied by the superior court, and that denial was affirmed. In re Nash, 146 Vt. 259, 499 A.2d 785 (1985).

In this, his second petition for post-conviction relief, the petitioner presents two issues which were preserved at trial but not raised on his direct appeal. They are: 1) whether the trial court erroneously allowed the introduction into evidence of a knife which petitioner claims was irrelevant, because there was no evidence linking the knife to the alleged crime; and 2) whether the trial court erroneously failed to charge simple assault as a lesser included offense of attempted sexual assault. The superior court addressed both claims on their merits and denied the petition. We conclude that post-conviction relief is not appropriate under the circumstances of this case and that the superior court correctly resolved the issues on their merits adversely to the petitioner. Accordingly, we affirm.

Post-conviction review is not a substitute for appeal. Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). Where the issues raised in a petition for post-conviction relief were contested at trial and were not raised on direct appeal, they will not be addressed on post-conviction review unless it is demonstrated that the failure to raise them on direct appeal was inadvertent, that appellate counsel was ineffective, or that extraordinary circumstances excused the failure to raise the issues on appeal. See In re Nash, 146 Vt. at 261-62, 499 A.2d at 786.

The petitioner claims that certain limitations placed upon his access to a law library by the Department of Corrections created extraordinary circumstances which excused his failure to raise the two issues on appeal.

"[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or [by providing] adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). The provision of full-time staff attorneys, working as part [149 Vt. 65] of public defender offices, provides an adequate alternative to prison law libraries as a means of insuring adequate access to the courts. Id. at 830-31, 97 S.Ct. at 1499-500. Vermont's correctional and appellate defenders capably fulfill this function.

In the present case, the petitioner had limited access to legal materials. Moreover, he was provided with experienced and skilled appellate counsel. He discussed the two issues now presented with his appellate counsel, who made an informed and deliberate decision not to raise them on direct appeal. This decision was communicated to the petitioner. These circumstances are hardly extraordinary and do not...