Pernicka, In re

• Decision Date: 20 June 1986
• Docket Number: No. 85-151,85-151
• Court: Vermont Supreme Court
• Parties: In re Steve PERNICKA.

Page 616

513 A.2d 616

147 Vt. 180

In re Steve PERNICKA.

No. 85-151.

Supreme Court of Vermont.

June 20, 1986.

Peter F. Langrock and James W. Swift of Langrock Sperry Parker & Wool, Middlebury, for petitioner-appellant.

Carol E. Smith, Franklin County Deputy State's Atty., St. Albans, for respondent-appellee.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

HAYES, Justice.

Petitioner, Steve Pernicka, appeals the superior court's denial of his motion for post-conviction relief. The issue presented on appeal is whether petitioner had effective assistance of counsel at his sentencing hearing. We affirm.

On October 1, 1981, petitioner was charged with aggravated assault and child abuse for injuring his then seven month old daughter. Petitioner entered into a plea agreement with the state's attorney in which he pled guilty to both charges and took full responsibility for injuring his son as well as his daughter. In return, the State agreed to recommend a suspended sentence with a long term psychiatric treatment program and to bring no further charges. The Franklin District Court rejected the plea agreement on September 7, 1982. Nonetheless, petitioner pled guilty to both charges of injuring his infant daughter.

On November 16, 1982, a sentencing hearing was held. The court asked whether the parties were satisfied with the presentence investigation report (PSI). Petitioner's attorney indicated that, with the exception of one paragraph which he excised, he was satisfied. The PSI contained descriptions of, and repeated references to, injuries inflicted by petitioner on his son, as well as psychologists' reports concerning petitioner's attitude toward these injuries. These descriptions, references, and reports were not objected to.

The court next asked whether the references to petitioner's son, contained in the rejected plea agreement, were relevant to the sentencing hearing. Defense counsel stated that his client was still "standing by" the plea agreement, as far as acknowledging his responsibility for his son's injuries. The court then informed the parties that it had requested the presence of the children's treating physician in order to gain information concerning the extent of the injuries, and an opinion concerning their cause. Counsel for the State and counsel for petitioner both stated they had no objection to the physician's proposed testimony. The physician described the injuries to petitioner's daughter and son, the several times he had been called to give treatment, and his growing suspicions of child abuse. Petitioner's only objection to this testimony was to a description of life-saving surgery performed on petitioner's son following a specific incident of child abuse.

Petitioner was sentenced to serve not less than eighteen months nor more than twenty-four months on the child abuse charge, and not less than twelve nor more than fifteen years on the aggravated assault charge. The sentences were made consecutive. Petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel, the denial of which by the superior court forms the basis of the present appeal.

Petitioner argues that the superior court's decision that petitioner had effective assistance of counsel at his sentencing hearing should be reversed because it was unsupported by the evidence. We disagree.

The standard for reviewing claims involving effectiveness of counsel is that of " 'reasonable competence' as measured by the prevailing standards in the conduct of the defendant's case." In re Kasper, 142 Vt. 31, 35, 451 A.2d 1125, 1126 (1982). Most recently, we held that "the appropriate standard of care to which a lawyer is held in the performance of professional services is 'that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.' " Russo v. Griffin, 147 Vt. ----, ----, 510 A.2d 436, 438 (1986) (quoting Cook, Flanagan & Berst v. Clausing 73 Wash.2d 393, 395, 438 P.2d 865, 867 (1968)).

The United States Supreme Court has adopted the reasonably effective assistance standard in evaluating attorney performance. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (the performance inquiry in a case presenting an ineffectiveness claim "must be whether counsel's assistance was reasonable considering all the circumstances."). The Court reasoned that, "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-89, 104 S.Ct. at 2065.

A petitioner alleging ineffective assistance of counsel must establish by a preponderance of the evidence that ineffective counsel caused fundamental errors in his sentencing. See In re Kaspar, supra, 142 Vt. at 35, 451 A.2d at 1126. The United States Supreme Court in Strickland set forth a similar requirement where it held that "actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2067.

In determining whether assistance of counsel is reasonably competent, "[t]his Court is not permitted to judge from hindsight whether tactical decisions are ultimately successful in determining claims of attorney competence; rather, we must look to whether such decisions are within the range of competence demanded of attorneys in a criminal case at that time." In re Mecier, 143 Vt. 23, 32, 460 A.2d 472, 477 (1983) (citing In re Cronin, 133 Vt. 234, 239-40, 336 A.2d 164, 168-69 (1975)). The Court in Strickland enunciated a similar view:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance....

Strickland, supra, 466 U.S. at 689, 104 S.Ct. at...