In re Ringler

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                                 No. 90-198

 In re Donald Ringler                         Supreme Court

                                              On Appeal from
                                              Windham Superior Court

                                              November Term, 1991

 Arthur J. O'Dea, J.

 Robert Katims and David Venman, Legal Intern, of Martin & Paolini, Barre,
   for petitioner-appellee

 Karen R. Carroll, Windham County Deputy State's Attorney, Brattleboro, for

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

      Gibson, J.  The State appeals a superior court order vacating
 petitioner Donald Ringler's conviction for lewd and lascivious conduct with
 a child, 13 V.S.A. { 2602.  After a post-conviction-relief hearing, 13
 V.S.A. { 7133, the court found that petitioner had received ineffective
 assistance of counsel at trial to his prejudice.  The State argues (1) that
 the court improperly considered counsel's failure to preserve an
 evidentiary objection for review on appeal, (2) that the evidence did not
 establish that counsel's conduct was unreasonable, and (3) that the court
 failed to make an essential finding regarding the probable outcome of the
 trial had counsel acted differently.  We reverse and remand on the basis of
 the last claim.
      Petitioner was convicted in 1988 of lewd and lascivious conduct with a
 child for allegedly touching the child's penis and inserting his tongue into
 the child's mouth.  Petitioner appealed, arguing that the trial court had
 improperly excluded cross-examination that would have revealed that the
 child himself was under investigation for improper sexual behavior at the
 time he made the complaint against defendant.  We agreed that the court
 should have allowed the questioning because it was relevant to the child's
 credibility, State v. Ringler, 153 Vt. 375, 378, 571 A.2d 668, 669-70
 (1989), but denied relief because counsel had not properly informed the
 trial court of the basis for his proposed cross-examination, and because its
 exclusion was not sufficiently prejudicial to constitute plain error.  Id.
 at 378-79, 571 A.2d  at 670.
      Petitioner next sought post-conviction relief, claiming violation of
 his state and federal constitutional rights on the basis of ineffective
 assistance of counsel.  He called three witnesses -- himself, his trial
 counsel, and another attorney as an expert witness -- to show numerous
 failures on the part of counsel.  The State called no witnesses.  The court
 granted relief, concluding, "[W]e cannot say that the ineffective
 assistance provided by defendant's counsel was harmless error beyond a
 reasonable doubt."
         The State argues first that the court should not have considered
 evidence concerning counsel's failure to preserve an objection to the
 exclusion of his proposed cross-examination.  Citing In re Kasper, 142 Vt.
 31, 451 A.2d 1125 (1982), the State maintains that because this issue was
 considered on direct appeal, it cannot be reconsidered in a post-conviction
 relief proceeding.
      In Kasper, this Court declined to consider whether counsel's failure to
 seek suppression of identification testimony amounted to ineffective
 assistance of counsel, where the Court on direct appeal had determined that
 admission of the testimony was not error, plain or otherwise.  Id. at 36,
 451 A.2d  at 1127; see also In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981) ("Absent exigent circumstances, a matter adversely decided on
 direct appeal cannot be relitigated, and collateral attack is barred if the
 movant deliberately bypassed the issue on appeal.").  Because admission of
 the testimony was not error, the Court found that the petitioner could not
 have been prejudiced by counsel's failure to object.  Kasper, 142 Vt. at 36,
 451 A.2d  at 1127.
      In contrast, on direct appeal of the conviction of petitioner herein,
 we held that the trial court had erred in excluding counsel's cross-
 examination, but ruled that the error did not amount to plain error.
 Ringler, 153 Vt. at 379, 571 A.2d  at 670.  We expressed a "doubt [that]
 there would have been any measurable impact on the issue of guilt" had the
 evidence been admitted.  Id.  This expression of doubt is not enough to
 preclude the issue from being reconsidered in the post-conviction-relief
 proceeding, particularly when the error is but one of many being urged by
 petitioner as grounds for relief.  The issue was thus properly before the
 trial court for its consideration.
      The State next argues that the evidence at the post-conviction-relief
 hearing was insufficient to show that counsel's conduct was unreasonable.
 Petitioner alleged errors by counsel ranging from failure to exclude biased
 jurors to failure to impeach the State's witnesses with inconsistent
 deposition testimony.  Although we agree that the conduct of counsel during
 trial is presumed to be reasonable, Strickland v. Washington, 466 U.S. 668,
 689 (1984); In re Pernicka, 147 Vt. 180, 183, 513 A.2d 616, 618 (1986), the
 State here is essentially rearguing the facts.  The trial court made
 findings, all of which are supported by credible evidence, that counsel had
 made prejudicial mistakes, and we therefore will not disturb those findings.
 See In re Fadden, 148 Vt. 116, 119, 530 A.2d 560, 562 (1987) (findings of
 fact in post-conviction relief proceeding will not be disturbed unless
 clearly erroneous).
      The critical problem herein is that the court did not apply the proper
 standard to its findings in concluding that petitioner did not receive
 effective assistance of counsel.  Under both the Sixth Amendment to the
 United States Constitution and Chapter I, Article 10 of the Vermont
 Constitution, a defendant who challenges the adequacy of counsel's
 assistance must show by a preponderance of the evidence, first, that
 counsel's conduct did not measure up to the prevailing standard of a
 reasonably competent attorney, Strickland, 466 U.S. at 687-88; In re
 Pernicka, 147 Vt. at 182, 513 A.2d  at 617, and second, that counsel's
 failure to meet that standard prejudiced the defendant such that there is
 "'a reasonable probability that, but for counsel's unprofessional errors,
 the result of the proceeding would have been different.'"  Pernicka, 147
 Vt. at 184, 513 A.2d  at 618 (quoting Strickland, 466 U.S. at 694).
      In the present case, the court noted the proper test at the outset of
 its decision, but concluded from its findings only that "we cannot say that
 the ineffective assistance provided by defendant's counsel was harmless
 error beyond a reasonable doubt."  This conclusion is insufficient to
 support post-conviction relief because it does not indicate whether
 petitioner established a reasonable probability that the outcome of his
 trial would have been different had he received reasonably competent
 assistance from counsel.  The test used by the trial court was taken from In
 re Bruyette, 150 Vt. 557, 562, 556 A.2d 568, 571 (1988), where, after
 finding that the petitioner's counsel had not been reasonably effective,
 this Court concluded that the ineffective assistance had not been harmless.
 Bruyette did not discuss the prejudice prong of the Pernicka/Strickland
 test.  Rather, as noted in In re Fisher, __ Vt. __, __, 594 A.2d 889, 897
 (1991), the Court merely failed to mention it in circumstances where the
 prejudice was obvious.
      We decline to substitute our judgment for that of the superior court in
 determining the weight to give its findings, especially since there was
 evidence that many of counsel's decisions were at least in part motivated by
 tactical considerations.  See Pernicka, 147 Vt. at 183, 513 A.2d  at 618
 (tactical decisions not unreasonable simply because unsuccessful).  Thus, we
 remand to the superior court for further consideration of its opinion and
 order in accordance with the established legal standard.
      Reversed and remanded.

                                          FOR THE COURT:

                                          Associate Justice