In re Chapman

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-013


In re Jerry Chapman                          Supreme Court

                                             On Appeal From
                                             Washington Superior Court

                                             June Term, 1989


David A. Jenkins, J.

Robert Andres, Burlington, for petitioner-appellant

Terry Trono, Washington County State's Attorney, Barre, and Jo-Ann Gross,
  Law Clerk, Department of State's Attorneys, Montpelier, for respondent-
  appellee


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     DOOLEY, J.   Petitioner appeals from the superior court's denial of his
petition for post-conviction relief.  We affirm.
     Petitioner was charged with aggravated assault stemming from a severe
beating of a woman in her apartment.  One defense asserted at trial was that
petitioner suffers from a medical condition (a brain tumor) which produces
unprovoked fits of violence, and that he was consequently insane at the time
of the offense.
     During pretrial proceedings, petitioner was represented by attorney
David Kidney, and was medically evaluated and found competent to stand
trial.  At trial, petitioner was represented by attorney Charles Gibson, who
put forth the defense of insanity, put on testimony regarding the brain
tumor, and presented another expert psychiatric witness to counter the
competency evaluation.  Petitioner was evaluated daily at trial and again
before sentencing and found competent.  The jury convicted petitioner of
aggravated assault on March 9, 1987, and the court requested a psychia-
trist's report for use in sentencing.
     Between conviction and sentencing, petitioner wrote to the trial court
twice.  In his first letter he stated that he wanted "immediately to get a
different attorney," declaring that his appeal would be partially based on
his trial counsel's ineffectiveness and incompetence.  A second letter
accompanied a lengthy motion to strike the pretrial report of the state's
psychiatrist, who stated the opinion that petitioner was competent to stand
trial and was not insane at the time of the offense.  Petitioner asked to
challenge the psychiatrist's report and stated that he would "do it pro se."
Thereafter, on May 22, 1987, attorney Gibson was allowed to withdraw as
counsel for petitioner.
     On May 24, 1987, attorney Robert Paolini was appointed to represent
petitioner at sentencing only.  Defendant requested that he be allowed to
represent himself, with attorney Paolini present to assist him.  Apparently,
this request was granted, and the sentencing hearing went forward with
petitioner appearing pro se, assisted by counsel.  The sentencing transcript
is not before us so we cannot determine to what extent counsel assisted at
the sentencing hearing.  Petitioner was sentenced on July 10, 1987 to serve
a term of 13 1/2 years to 15 years.
     After sentencing, petitioner did not file an appeal of the conviction
or a motion for reconsideration of the sentence in district court.  Instead,
six months later, in January, 1988, he filed a pro se petition for post-
conviction relief in superior court in which he claimed defects in his
trial, including inadequate representation by counsel at trial and at
sentencing.  He also moved to proceed in forma pauperis, and on February 2,
1988 he requested appointment of another attorney, citing a conflict with
the public defender.  On March 7, 1988, he moved for the production of
documents and witnesses in his post-conviction relief proceeding and in that
motion stated "I wish to proceed Pro Se with no representation."   On March
15, 1988, he wrote to the district court clerk asking the clerk to send the
psychiatrist's report to the superior court, and stating "Please ignore the
fact that I'm not an attorney but know I am making pro se pleadings and oral
arguments in the PCR case."  On March 17, 1988 petitioner informed the
superior court that attorney Paul Clemente "has consented to assist me in
preparing for a hearing on the merits," and requested the court's assistance
in transferring certain medical files from attorney Gibson to attorney
Clemente.
     At the post-conviction relief hearing on April 4, 1988, the clerk
announced, "I believe that the Plaintiff is going to be representing himself
pro se, with the aid of Attorney Paul Clemente."  The State requested
clarification of "whether Mr. Chapman is proceeding pro se or if he's being
represented by counsel."  Petitioner asked, "Well, would it be all right if
you entered it as like co-counsel assistant if I need it?  Pro Se."  The
court informed him, "He would be the attorney of record, but you could
conduct the examination.  Only one party can do it, not both.  You're
entitled to if you want to do it and you can confer with your attorney."
Petitioner answered, "That's how I'd like it to be, your Honor."  Throughout
the hearing, petitioner conducted the examination of witnesses.
     On April 21 petitioner moved pro se for an expedited transcript.  This
motion was granted, and on April 25 he filed a lengthy pro se memorandum
entitled "Closing Argument, Conclusions, Memorandum of Law."  On June 23,
1988, petitioner requested substitute counsel and, on July 7, 1988 the court
appointed attorney Alan Rome whose only participation in the matter prior to
the decision was to forward petitioner's pro se "Amended Final Argument" on
October 12, 1988.  Petitioner also sent directly to the court this pro se
"Amended Final Argument," with a cover letter in which he advised the
superior court clerk that "attorney of record has some type of
communications problem and as such is no longer assisting me as far as I am
concerned."  Attorney Rome filed the notice of appeal after the superior
court denied the petition for post-conviction relief.  Attorney Robert
Andres was assigned to represent petitioner on appeal and has filed the
brief.
     In denying the motion for post-conviction relief, the superior court
found that petitioner had not carried his burden of persuading the court, by
a preponderance of the evidence, that the conviction was invalid or
defective, and found petitioner's pretrial and trial representation to have
been adequate.  Petitioner does not claim on appeal that the superior court
erred in its post-conviction relief decision regarding the fairness of the
criminal trial or the effectiveness of counsel at his trial or sentencing.
Rather, on appeal, petitioner claims only that at the post-conviction relief
proceeding he was denied both his right to counsel and his right to appear
pro se, and was incompetent to make the decision concerning self-
representation.
     Petitioner appears to complain both that he was denied, without a
proper waiver, his right to appointed counsel and that he was denied his
right to represent himself.  He complains that the "co-counsel" arrangement
permitted by the trial court protected neither right.  In arguing their
position, both parties have relied on cases which address the state of
tension between two constitutional rights of defendants in criminal trials
and appeals of right:  the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 344 (1963); and the right to proceed without counsel, Faretta v.
California, 422 U.S. 806, 821 (1975).  See, e.g., State v. O'Connell, 147
Vt. 60, 65, 510 A.2d 167, 169-170 (1986); State v. Hartman, 134 Vt. 64, 65,
349 A.2d 223, 225 (1975).  The waiver of the one right may amount to the
assertion of the other, putting the court in what one court has called the
"new, and unenviable, position" of having to choose between providing
counsel if defendant's attempted waiver of his constitutional right to
counsel is inadequate, and granting a defendant's request for self-
representation if that choice is made "'competently and intelligently'."
United States v. Bailey, 675 F.2d 1292, 1300 (D. C. Cir.), cert. denied, 459 U.S. 853 (1982) (quoting Faretta v. California, 422 U.S. at 835).  One way
for a court to handle this problem is to allow a defendant to proceed pro se
with counsel present for assistance, as was done in this case.  McKaskle v.
Wiggins, 465 U.S. 168, 170 (1984).
     We do not have to address, however, whether the trial court properly
handled the conflicting constitutional rights the petitioner asserts.  This
is a post-conviction review proceeding.  There is no federal constitutional
right to counsel on post-conviction review, a proceeding which is not part
of the criminal proceeding itself and is considered to be civil in nature.
See Pennsylvania v. Finley, 481 U.S. 551, 556-557 (1987).  The right to
counsel in such proceedings is created by statute.  See 13 V.S.A. { 5232(2).
     In Finley, the Supreme Court considered whether appointed counsel in a
post-conviction review proceeding was constitutionally required to go
through the procedure set forth in Anders v. California, 386 U.S. 738
(1967), in order to withdraw from a frivolous case. (FN1)   The Court held that
the Anders procedure implemented the defendant's right to appointed counsel,
and, thus, applied only when the right to counsel was present.  It concluded
that petitioners have no constitutional right to appointed counsel in post-
conviction relief proceedings.  Finley, 481 U.S.  at 557.  It further held
that the Constitution did not impose specific procedural requirements on a
right to counsel created by state law.  Id.  The only requirement is that
state procedures meet the general due process requirements of fundamental
fairness.  Id. at 556.
     We cannot distinguish this case from Finley.  Petitioner's argument
that the court failed to obtain a constitutionally valid waiver of counsel
is based on the right to counsel.  Thus, the constitutional standards for
waiver of counsel do not apply to counsel in a post-conviction relief
proceeding.  See People v. Duran, 757 P.2d 1096, 1097 (Colo. App. 1988).  We
also conclude that the right to self-representation has a similar source in
the United States Constitution so that the requirements of Faretta and its
progeny do not apply in post-conviction relief proceedings.  See Faretta,
422 U.S.  at 819 (right to self-representation necessarily implied in the
fabric of the Sixth Amendment).  Petitioner has not argued that there should
be a different outcome under the Vermont Constitution. (FN2)
     We do not mean to imply that there is no regulation of waivers of the
statutory right to counsel.  See People v. Duran, 757 P.2d  at 1097 (waiver
of statutory right to counsel must be "voluntary but need not be knowing and
intelligent").  We find nothing in this record to suggest that petitioner
did not proceed voluntarily to represent himself with the assistance of
counsel.  Indeed, the extensive proceedings in this and the underlying
criminal case, with frequent changes of counsel, show that petitioner was
clearly aware of his right to counsel and affirmatively waived it.  See
State v. Ahearn, 137 Vt. 253, 261, 403 A.2d 696, 702-703 (1979).  Further,
the record demonstrates that the trial court acted to protect petitioner's
interests consistent with his expressed desires.  If the record is
incomplete, it is petitioner's burden to make the necessary showing to
support his position.
     Affirmed.
                                        FOR THE COURT:




                                        Associate Justice


FN1.    The Anders procedure was imposed for direct appeals of criminal
convictions.  It requires the lawyer to brief anything in the record that
might arguably support the appeal and to furnish the brief to the indigent
defendant so that he or she might raise any further points.  Based on the
briefs of the lawyer and the defendant, and the lawyer's motion to withdraw,
the court then decides whether the appeal is frivolous and the lawyer can
withdraw.  Anders, 386 U.S.  at 744.

FN2.    Chapter I, Article 10 of the Vermont Constitution provides that a
person has "a right to be heard by himself and his counsel" in "prosecutions
for criminal offenses."  Petitioner has not argued separately a right to
self-representation under the Vermont Constitution.  We have applied the
right in criminal cases, see State v. Hartman, 134 Vt. 64, 65, 349 A.2d 223, 225 (1975), but have never addressed whether it might apply to post-
conviction relief proceedings.  We do not address the Vermont Constitution
in this case.