In Re Hatten

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                                No. 90-304

In re Wayne Hatten                           Supreme Court

                                             On Appeal from
                                             Lamoille Superior Court

                                             March Term, 1991

Dean B. Pineles, J.

Michael Rose, St. Albans, for petitioner-appellant

Joel Page, Lamoille County State's Attorney, Hyde Park, and Gary S. Kessler,
  Supervising Appellate Prosecutor, and Geoffrey M. Coan, Student Intern,
  Department of State's Attorneys, Montpelier, for respondent-appellee

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

     ALLEN, C.J.   Petitioner appeals from denial of post-conviction relief,
claiming ineffective assistance of counsel at sentencing, after pleading
nolo contendere to charges of careless and negligent driving of a motor
vehicle resulting in the death of a person, 23 V.S.A. { 1091(c).  We affirm.
     Petitioner, following departure from a local ski area, was involved in
a high-speed accident that injured him seriously and killed his passenger.
The affidavit of probable cause alleged that petitioner and his companion
had consumed alcohol prior to leaving the ski area and that he had driven
his automobile in a wild and grossly dangerous manner.  His vehicle
collided with another at the so-called Playhouse curve on Route 108,
sliding 141 feet and coming to rest sideways in the northbound lane, where
it was struck on the passenger side by a pickup truck, causing the passen-
ger's death.  Petitioner was charged with manslaughter, DUI -- fatality
resulting, DLS, and a misdemeanor charge of careless and negligent driving.
     Petitioner retained an attorney from his home state of Connecticut. It
is his representation at sentencing that petitioner claims was ineffective.
While his representation prior to sentencing was not attacked as
ineffective, the post-conviction relief court found that "[d]uring the pre-
trial discovery phase, the petitioner's attorney provided vigorous and
skillful representation.  He took over forty depositions, filed numerous
motions (one of which resulted in the suppression of a blood test result)
and filed two interlocutory appeals."
     Prior to trial, the manslaughter charge was replaced with the charge
under { 1091(c).  All the remaining charges, except the misdemeanor charge
of careless and negligent driving, were dismissed.  Thereafter petitioner
and the State reached a plea agreement under which he would plead nolo
contendere to the { 1091(c) charge, and the State would recommend a
sentence of three-to-five years, all suspended except for ninety days to
serve.  The remaining misdemeanor charge would be dismissed.
     During a subsequent status conference, the state's attorney outlined
the plea agreement to the trial judge.  The trial judge at that time indi-
cated that it was "very unlikely" she would accept the agreement, based on
her knowledge of the case from the affidavit of probable cause.  Neverthe-
less, she indicated that she "might buy it given whatever evidence you want
to produce."
     Petitioner entered a plea of nolo contendere.  After hearing testimony
from the other accident victims and arguments of counsel, and receiving
letters of attestation and a sympathetic psychological evaluation, the trial
judge refused to accept the plea agreement because of the seriousness of the
offense.  She stated that she would impose a sentence of two-to-ten years,
all suspended except for two years to serve.  She gave petitioner the
weekend to decide whether to accept the sentence or withdraw his plea and
proceed to trial.
     Petitioner deliberated over the weekend and contacted other attorneys,
including a public defender.  When he returned to court after the weekend,
his Connecticut attorney argued that the evidence was inconclusive as to who
was at fault in the first collision and that the evidence showed that the
other driver could have avoided the second collision.  His attorney referred
to a written report of the petitioner's accident reconstruction expert, who
had concluded that it was impossible to determine which of the vehicles in
the initial collision had been left of center and that the second vehicle
should have been able to take evasive action.  However, his attorney did not
present this expert or introduce his report into evidence.  The state's
attorney made representations as to the State's evidence, answering in
response to a question from the bench that petitioner's automobile was
travelling at "60-65, probably in excess of 65."
     Having taken into consideration petitioner's attorney's represen-
tations, the trial judge maintained her decision to reject the plea
agreement and to impose the sentence as announced.  She informed petitioner
that "I am not looking at the collision as a piece of pie in assigning fault
in various proportions to people, okay? . . .  I'm only looking at your
conduct, the results coming from your conduct."  She offered petitioner the
opportunity to withdraw his plea, but after consulting with counsel,
petitioner declined to do so.  The judge imposed the sentence of two-to-ten
years, all suspended except for two years to serve.  Petitioner subsequently
moved for sentence reconsideration, employing a new lawyer who stated that
"at this time, we are aware of no grounds which would invalidate the
Defendant's change of plea."
     With a third attorney, petitioner sought post-conviction relief on
grounds that he had declined to withdraw his plea because neither he nor his
parents had the financial resources to proceed to trial and that his
Connecticut attorney would not provide effective assistance.  In addition,
he argued that his attorney had provided ineffective assistance of counsel
at sentencing, mainly because of his failure to introduce the evidence of
the accident reconstruction expert.  At this hearing petitioner presented
this accident reconstruction expert, who offered accident testimony
favorable to petitioner, and a Vermont attorney who opined that petitioner's
attorney at sentencing had provided ineffective assistance because he had
failed to call the accident reconstruction expert as a witness or offer his
written report into evidence.
     The court concluded that petitioner had made a rational decision to
maintain his plea based on a number of factors, including the strength of
the State's case, the possibility of conviction after trial, the possibility
of a sentence of up to fifteen years, the stress of trial, and the expense
of trial.  The court concluded that there was no evidence that petitioner
had pled to the offense under any undue pressure and that he was "aware of
all his options."  The court also rejected petitioner's claim that he had
received ineffective assistance of counsel, stating that "under the circum-
stances, the court cannot conclude that counsel's performance fell below
acceptable standards."  The court stated further that "the petitioner has
not shown that the result of the sentencing would have been any different
. . . if counsel had presented the live witness or his written report."
The court denied post-conviction relief and petitioner's motion for a new
trial or relief from judgment.  The present appeal followed, limited solely
to the issue of whether petitioner had received ineffective assistance of
counsel at sentencing.
     Petitioner argues first that the post-conviction relief court failed to
make adequate findings on the issue of the effectiveness of counsel's
assistance.  This is a curious argument in the context of extremely careful
and thorough findings by the court.  The court's findings recounted the
testimony of the expert witness attorney who testified that petitioner's
attorney had provided ineffective assistance of counsel.  In its conclusions
the court reviewed the controlling legal standards and then stated:
           Based on these standards, the court is not prepared to
         conclude that Mr. Solomon provided ineffective assista-
         nce.  While he did not call the expert as a witness or
         offer his report, he did describe clearly the essence of
         the expert's findings.  And the court took counsel's
         representations into consideration. . . .  Under the
         circumstances the court cannot conclude that counsel's
         performance fell below acceptable standards.

Petitioner's point on appeal is reduced to a complaint that the missing
"findings" were actually included in the court's conclusions, with which
they are inextricably intertwined.  Whatever the labels, the court's
analysis is thorough and detailed.  There was no want of adequate findings.
     Nor did the court err in applying the substantive standards for claims
of ineffective assistance of counsel.  A petitioner alleging ineffective
assistance of counsel must prove by a preponderance of the evidence that
ineffective counsel caused fundamental errors that prejudiced his case.  In
re Pernicka, 147 Vt. 180, 183, 513 A.2d 616, 618 (1986).  Attorneys must
exercise 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).  The appropriate standard of care 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. 20, 24, 510 A.2d 436, 438 (1986)
(quoting Cook, Flanagan & Berst v. Clausing, 73 Wash. 2d 393, 395, 438 P.2d 865, 867 (1968)).  On appeal, this Court evaluates counsel's competency by
reviewing the record as a whole.  In re King, 133 Vt. 245, 248, 336 A.2d 195, 198 (1975).   The record does not support petitioner's contention of
ineffective assistance.  We agree with the post-conviction relief court that
the record of the proceedings below indicates that petitioner had benefit of
a highly trained and competent attorney.
       As to prejudice, our independent review of the record puts us
squarely in agreement with the post-conviction relief court's conclusion
that the result of the sentencing would not have been any different if
counsel had presented the live witness or his written report.  It is clear
from the trial judge's statements at the sentencing hearing that she con-
sidered what that evidence would have shown and that the decision on
sentencing did not depend on  whether that testimony was presented on the
record.  The judge based the sentence on the egregiousness of defendant's
conduct, and assignment of fault to other parties involved in the accident
would not diminish this egregiousness.  In sum, petitioner has not shown "'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 v. Washington, 466 U.S. 668, 694

                                        FOR THE COURT:

                                        Chief Justice