In re Hart

In re Hart  (97-059); 167 Vt. 630; 715 A.2d 640

[Opinion Filed 25-Mar-1998]

[Motion for Reargument Denied 10-Apr-1998]

                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 97-059

                        OCTOBER TERM, 1997


In re Phillip F. Hart           }     APPEALED FROM:
                                }
                                }
                                }     Orange Superior Court
                                }
                                }
                                }     DOCKET NO. 223-11-94 Oecv


               In the above-entitled cause, the Clerk will enter:

       Petitioner appeals the Orange County Superior Court's denial of his
  petition for post-conviction relief pursuant to 13 V.S.A. § 7131.  He
  argues that the court erred when it allocated to him the burden of proving
  that he had not deliberately bypassed the opportunity to directly appeal an
  error made by the sentencing court in the application of Rule 32(c)(3).  We
  affirm.

       In 1992, petitioner was sentenced to serve twelve to twenty years in
  prison for the sexual assault of a minor, and this Court affirmed the
  conviction in State v. Hart, 161 Vt. 647, 643 A.2d 853 (1994).  In 1996,
  petitioner filed a petition for post-conviction relief requesting the
  superior court to vacate his sentence and order re-sentencing.  As grounds
  for relief, petitioner alleged: (1) that counsel at his sentencing hearing
  had been ineffective, and (2) that, in determining the sentence, the court
  improperly considered and relied upon information not previously disclosed
  to petitioner and his counsel.  See V.R.Cr.P. 32(c)(3) ("sentencing court
  shall disclose to the defendant, his attorney, and the prosecution, all
  information submitted to it for consideration at sentencing").

       After a hearing on the merits, the superior court denied petitioner's
  claim of ineffective assistance of counsel.  The superior court concluded,
  however, that the sentencing court did "consider and rely upon petitioner's
  violent history with his former wife . . . without providing notice in the
  manner described under V.R.Cr.P. 32(c)(3)."  Petitioner introduced no
  evidence to establish why he had not raised the Rule 32 issue in his direct
  appeal, although he did contend the record failed to show he had
  deliberately bypassed the opportunity.  The State introduced no evidence on
  petitioner's bypass of the issue.  The superior court concluded that
  petitioner had failed to satisfy his burden of showing that his failure to
  raise the claimed error on direct appeal was an "inadvertent waiver," and
  thus denied the petition.(FN1)

       Vermont's post-conviction relief statute, 13 V.S.A. §§ 7131-7137,
  permits "challenges to confinement . . . [where] the sentence is subject to
  collateral attack," State v. Cooley, 135 Vt. 409, 411, 377 A.2d 1386, 1387
  (1977), but is not a substitute for direct appeal, see In re Nash, 146 Vt.
  259, 261, 499 A.2d 785, 786 (1985).  Absent exigent circumstances,
  "collateral attack is barred if the movant deliberately bypassed the issue
  on appeal."  In re Stewart, 140 Vt.

 

  351, 361, 438 A.2d 1106, 1110 (1981) (citing Chin v. United States, 622 F.2d 1090, 1092-93 (2d Cir. 1980) and Berard v. Moeykens, 132 Vt. 597,
  599-60, 326 A.2d 166, 168 (1974)).  To allow an issue which had been
  deliberately waived on appeal to be asserted under post-conviction review
  would be "[t]o grant petitioner redress . . . that he is entitled, at his
  own election, to have each claim of trial error the subject of separate
  reviews."  Berard, 132 Vt. at 600, 326 A.2d  at 168.

       Petitioner does not deny that the "deliberate bypass" standard applies
  in this case; rather, he argues on appeal that the superior court erred in
  holding that the burden of proof to satisfy the standard rests on the
  petitioner.

       The allocation of the burden of proof between the petitioner for
  post-conviction relief and the State is governed by the usual principles of
  law according to the nature of the claim advanced.  See In re Mossey, 129
  Vt. 133, 138, 274 A.2d 473, 476 (1971).  The burden rests with the party
  who advances the factual contention, and the risk of non-persuasion is
  similarly assigned.  See id.  Under the "usual principles of law," id.,
  issues not challenged on appeal are deemed waived, see Fyles v. Schmidt,
  141 Vt. 419, 422-23, 449 A.2d 962, 965 (1982) (issues not fairly presented
  to trial court are not preserved on appeal); Bigelow v. Department of
  Taxes, 163 Vt. 33, 38, 652 A.2d 985, 988 (1994) (issues not fairly raised
  at the earliest opportunity are not preserved on appeal).  We have
  previously denied post-conviction relief where the petitioner did not show
  that his failure to raise an issue on direct appeal was inadvertent.  See
  Nash, 146 Vt. at 261-62, 499 A.2d  at 786.

       Accordingly we hold that to be eligible for relief under 13 V.S.A. §
  7131, the petitioner must demonstrate that he did not deliberately bypass
  issues which could have been raised on direct appeal.  Allocating the
  burden of proof in this manner maintains "an orderly process of review and
  appeal [that] is essential for the prompt and fair administration of
  criminal justice." Cooley, 135 Vt. at 412, 377 A.2d  at 1387; see State v.
  Zankowski, 665 A.2d 1081, 1083 (N.H. 1995) ("To vacate a conviction on
  collateral review the defendant must allege that the waiver of his right
  was not voluntary or not knowing.  A silent record alone is insufficient to
  require reversal on collateral attack.  The defendant `must describe the
  specific manner in which the [waiver] was in fact involuntary or without
  understanding, and must at least go forward with evidence sufficient to
  indicate that his specific claim presents a genuine issue for
  adjudication.'") (quoting Richard v. MacAskill, 529 A.2d 898, 900 (N.H.
  1987)) (alteration in original) (citations omitted).(FN2)

       In the instant case, petitioner concedes that the Rule 32 issue could
  have been raised on direct appeal.  Although he speculates that his
  appellate attorney "simply overlooked it," petitioner has not claimed that
  his appellate counsel was ineffective.  Because petitioner

 

  introduced no evidence to demonstrate that he did not deliberately bypass
  the issue on direct appeal, the superior court properly denied relief.

       Affirmed.




                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
Ú-¿                           John A. Dooley, Associate Justice
À-Ù   Publish
                              _______________________________________
Ú-¿                           James L. Morse, Associate Justice
À-Ù   Do Not Publish
                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn R. Skoglund, Associate Justice


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                                  Footnotes


FN1.  The record reflects that the terms "deliberate bypass" and
  "inadvertent waiver" were used interchangeably.  We believe that the two
  terms implicate the same general principle.


FN2.  Federal courts similarly place the burden of proof on the
  petitioner in post-conviction relief proceedings under 28 U.S.C. §§
  2254-55, although the trend is to replace the "deliberate bypass" standard
  with that of "cause and prejudice."  See Wainwright v. Sykes, 433 U.S. 72,
  86-87 (1977).  Under the more strict cause and prejudice standard, the
  petitioner must show cause for his failure to raise an issue on direct
  appeal, and must show actual prejudice from that failure.  See Chambers v.
  Lockhart, 872 F.2d 274, 276 (8th Cir. 1989); Rosenfeld v. Dunham, 820 F.2d 52, 53 (2d Cir. 1987).  This is of particular relevance because 13 V. S. A.
  § 7131 is similar in effect to 28 U.S.C. § 2255.  See Shequin v. Smith, 129
  Vt. 578, 581, 285 A.2d 708, 710 (1971).