In re Plante

Annotate this Case
In re Plante (99-096); 171 Vt. 310; 762 A.2d 873 

[Filed 20-Oct-2000]

       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 99-096

In re Robert W. Plante	                         Supreme Court

                                                 On Appeal from
                                                 Windham Superior Court

                                                 March Term, 2000

John P. Wesley, J.

Robert Appel, Defender General, and Seth Lipschutz, Prisoners' Rights Office, 
  Montpelier, for Petitioner-Appellant.

Dan M. Davis, Windham County State's Attorney, and Matthew T. Jones, Deputy 
  State's Attorney, for Respondent-Appellee.

PRESENT: Dooley, Morse, and Skoglund, JJ., Allen, C.J. (Ret.) and Gibson, J. 
         (Ret.), Specially Assigned

       SKOGLUND, J.   Petitioner Robert W. Plante, who was convicted of
  first-degree (felony)  murder and sentenced to a term of imprisonment of
  fifty years to life, appeals the superior court's  decision denying his
  petition for post-conviction relief (PCR), which is based on a claim of 
  ineffective assistance of counsel.  We affirm.

       Petitioner was charged with murdering Glenn Michaelson in
  Williamsville, Vermont on May  31, 1992.  He was charged with felony murder
  based on the allegation that he had stolen items from  the decedent after
  the murder, including the decedent's car.  Two attorneys were assigned as 
  petitioner's trial counsel.  In December 1992, after a defense investigator
  uncovered information 


  suggesting that the decedent was involved in selling drugs, the State
  offered to recommend a  sentence of twenty-five years to life imprisonment
  if petitioner would plead guilty to second-degree  murder.  The offer was
  not accepted.

       Shortly before trial, the State offered to recommend a sentence of
  twenty-to-fifty years in  exchange for petitioner's plea of guilty to
  second-degree murder.  Petitioner's attorneys thought the  plea offer was
  of little practical advantage, however, because it did not guarantee
  against petitioner  serving a lengthy sentence well beyond the minimum
  term.  One of the attorneys advised petitioner  to reject the offer.  The
  other one described the offer as "steep," but told petitioner that the
  final  decision was his to make.  Petitioner rejected the offer and elected
  to take his chances at trial.

       Petitioner's attorneys presented alternative inconsistent defenses at
  trial.  Their principal  defense was that reasonable doubt existed as to
  whether petitioner was the murderer.  As a secondary  theme, they presented
  evidence of petitioner's diminished capacity due to intoxication at the
  time of  the murder.  They requested and received an instruction that the
  jury could consider such evidence in  determining whether petitioner could
  have formed the intent necessary to commit felony murder.

       Although defense counsel requested a diminished-capacity instruction,
  they did not request a  second-degree murder instruction.  The State
  requested an instruction on second-degree murder, but  the trial court
  denied the request, ruling that because petitioner had been charged with
  felony murder,  the jury would have to convict him either of first-degree
  murder or the lesser-included offense of  manslaughter.  See 13 V.S.A. §
  2301 (murder committed in perpetration of robbery or burglary shall  be
  first-degree murder).  The jury found petitioner guilty of first-degree
  murder, and he was  sentenced to fifty years to life imprisonment.

       After this Court affirmed petitioner's conviction, see State v.
  Plante, 164 Vt. 350, 351, 668 A.2d 674, 675 (1995), he filed a PCR petition, claiming that his trial
  attorneys provided ineffective  assistance by improperly advising him with
  respect to the State's plea offer, not adequately preparing  and presenting
  a diminished-capacity defense, and failing to seek and obtain a
  second-degree murder  instruction.  Following two days of hearing, the
  superior court denied the petition, concluding that  (1) defense counsel
  adequately conveyed the nature of the plea offer and the dangers of not
  accepting  it, and, in any event, petitioner could not show that the
  district court would have accepted the State's  proposed unlawful sentence;
  (2) defense counsel's tactical decisions regarding the defenses they 
  presented at trial were well within the range of reasonably competent
  representation, and, further,  petitioner failed to show that the outcome
  of the trial would likely have been different had defense  counsel
  committed themselves exclusively to a defense of diminished capacity; and
  (3) the absence  of a second-degree murder instruction most likely did not
  affect the jury's verdict.  On appeal,  petitioner reasserts the claims
  contained in his petition.

       Petitioner has high hurdles to overcome in demonstrating that he is
  entitled to relief based on  his PCR claim of ineffective assistance of
  counsel.  Petitioner must show by a preponderance of the  evidence that (1)
  his counsel's performance fell below an objective standard of performance 
  informed by prevailing professional norms; and (2) there is a reasonable
  probability that, but for  counsel's unprofessional errors, the proceedings
  against him would have turned out differently.  See  State v. Bristol, 159
  Vt. 334, 337, 618 A.2d 1290, 1291-92 (1992).  In making this showing, 
  petitioner must first overcome the strong presumption that counsel's
  performance, absent the  distorting effects of hindsight, fell within the
  wide range of reasonable assistance.  See In re  Pernicka, 147 Vt. 180,
  183, 513 A.2d 616, 618 (1986).  Petitioner must also overcome the strong 
  presumption in the reliability of the underlying proceedings and must
  demonstrate that his counsel's 


  inadequate representation caused a breakdown in the adversary process that
  rendered his conviction  defective.  See Bristol, 159 Vt. at 337, 618 A.2d 
  at 1292.  This Court will uphold the superior court's  judgment on appeal
  if there is any credible evidence to support the court's findings and its 
  conclusions follow from those findings.  See In re Dunbar, 162 Vt. 209,
  211, 647 A.2d 316, 319  (1994).


       We first consider petitioner's argument that his attorneys failed to
  provide competent  assistance with respect to their advice concerning the
  State's plea offer.  Fundamental error at the  plea bargain stage may
  invalidate a conviction.  See Bristol, 159 Vt. at 337, 618 A.2d  at 1292. 
  The  right to effective counsel is violated when an attorney fails to
  inform a defendant of a plea offer or  when the attorney's incompetence
  causes a defendant to proceed to trial rather than plead guilty.  See  id. 
  "Defense counsel has a duty to communicate to a client not only the terms
  of a plea bargain offer,  but also its relative merits compared to the
  client's chances of success at trial."  Id. at 338, 618 A.2d   at 1292. 
  Thus, courts have found ineffective assistance of counsel in cases when the
  defense  attorney either advised the defendant not to accept a favorable
  plea bargain offer or gave the  defendant false information during the plea
  negotiations.  See id.

       Petitioner argues that his trial attorneys failed in both
  respects-they misled him on the  strength of the State's case and advised
  him to reject a favorable plea offer.  Petitioner points out that  his
  attorneys' assessment of the strength of the State's case did not comport
  with that of either expert  at the PCR hearing or this Court in the
  original appeal.  See Plante, 164 Vt. at 356, 668 A.2d  at 678  ("The
  evidence brought to bear against defendant was overwhelming.").  In
  petitioner's view, trial  counsel then compounded their misjudgment of the
  strength of the State's case by encouraging him, 


  a person they acknowledged was one of the least directing clients they had
  ever seen, to reject a plea  offer that they described as "steep" and
  "harsh," when in fact it was unlawfully low. (FN1) 

       We do not find these arguments persuasive.  Rather, we concur with the
  superior court's  judgment that, viewing objectively all of the
  circumstances at the time of trial, without the distorting  effects of
  hindsight, trial counsel's advice to petitioner concerning the plea offer
  did not constitute  ineffective assistance of counsel.  The State's case
  was entirely circumstantial, unsupported by either  a confession or an
  eyewitness.  Trial counsel believed that petitioner was innocent, and that
  acquittal  was a reasonable possibility because (1) an expert would testify
  that the fatal wounds were most  likely inflicted by more than one
  assailant using different weapons; (2) some of the weapons used in  the
  attack were never recovered; (3) another person staying at the house at the
  time of the murder  allegedly slept through what probably was a prolonged
  struggle; (4) the decedent apparently had been  involved in drug
  transactions that could have been a motivating factor for others to have
  committed  the murder; and (5) petitioner's past criminal record did not
  include crimes of violence.

       Defense counsel informed petitioner that he could be sentenced to life
  imprisonment without  parole if he were convicted of first-degree murder.
  (FN2)  Petitioner may not have been a self-directing individual, but the
  superior court found that defense counsel carefully explained the nature 
  of the plea offer to petitioner, and that petitioner asked numerous
  questions, understood the nature of  his choice, and ultimately made that
  choice after asking his attorneys whether they thought he should 


  accept the offer.  Defense counsel felt that the State's plea offer
  presented little practical advantage to  petitioner because, based on their
  knowledge of the policies of the Department of Corrections, they  believed
  that petitioner would have to serve a sentence far beyond the twenty-year
  minimum before  having any realistic chance at parole.  To their way of
  thinking, if petitioner were to accept the plea  offer, he would be giving
  up any possibility of an acquittal or a manslaughter conviction without 
  avoiding a very lengthy prison sentence.

       As the case law demonstrates, these are not the types of circumstances
  that support a PCR  petition for ineffective assistance of counsel.  See
  People v. Curry, 687 N.E.2d 877, 887 (Ill. 1997)  (ineffective assistance
  found where defense counsel's recommendation to reject State's plea offer
  was  predicated on plainly erroneous understanding of sentencing law rather
  than on defensive strategy or  judgment proven to be unwise in hindsight);
  see also United States v. Gordon, 156 F.3d 376, 380 (2d  Cir. 1998)
  (defense counsel breached his duty to competently advise defendant
  regarding plea offer  by grossly underestimating defendant's sentencing
  exposure); Boria v. Keane, 99 F.3d 492, 494-97  (2d Cir. 1996) (where
  attorney neglected to discuss advisability of accepting offer despite his
  belief  that proceeding to trial was "suicidal," and defendant received
  sentence of twenty years to life  imprisonment on drug charge following
  trial, attorney provided ineffective assistance of counsel by  failing to
  advise client to accept plea offer recommending sentence of one to three
  years); State v.  Kraus, 397 N.W.2d 671, 672-73 (Iowa 1986) (attorney's
  inaccurate legal advice on elements of  criminal charge, which prompted
  defendant to reject plea bargain, qualified as ineffective assistance  of
  counsel); Lewandowski v. Makel, 754 F. Supp. 1142, 1146-48 (W.D. Mich.
  1990) (defense  counsel's failure to inform defendant of significant
  aspects of law relevant to his decision whether to  withdraw plea was
  ineffective assistance of counsel).  Because we conclude 


  that defense counsel's advice concerning the State's plea offer was not
  ineffective assistance of  counsel, we need not consider the prejudice
  prong of this claim.  See In re Miller, 168 Vt. 583, 585,  718 A.2d 419,
  421 (1998) (mem.).


       Next, petitioner claims that defense counsel's failure to adequately
  investigate, prepare, and  present a diminished-capacity defense was
  ineffective representation that prejudiced his case.   Petitioner
  acknowledges that his attorneys obtained a forensic psychologist before
  trial to evaluate  him, and that, based on the psychologist's oral report,
  they decided against presenting the expert's  testimony on a
  diminished-capacity defense.  Petitioner also acknowledges that his
  attorneys cross-examined the State's witnesses on petitioner's condition
  at the time of the murder and obtained an  instruction informing the jury
  that evidence of diminished capacity due to intoxication could be 
  considered in determining whether petitioner could have formed the specific
  intent required for  felony murder.  See State v. Joyce, 139 Vt. 638, 640,
  433 A.2d 271, 272 (1981) (when specific intent  is element of crime,
  evidence of intoxication may be introduced to show that defendant could not 
  have formed necessary intent).

       Nevertheless, relying on the testimony of another forensic
  psychologist whose services he  obtained in connection with the PCR
  proceeding, petitioner argues that defense counsel's efforts with  respect
  to the diminished-capacity defense constituted ineffective assistance of
  counsel.  At the PCR  hearing, the psychologist conceded that he could not
  have testified at petitioner's trial that petitioner  lacked the requisite
  mental state to commit murder.  Rather, the psychologist would have
  testified  that petitioner lacked the requisite intent to commit robbery
  because he did not know whose boots he  was wearing after the murder
  (petitioner was found wearing decedent's boots when he was 


  apprehended).  In petitioner's view, this testimony shows that his
  attorneys could have more  thoroughly pursued a diminished-capacity defense
  aimed at demonstrating that he did not have the  requisite intent to commit
  the predicate felony upon which the felony murder charge rested.

       We agree with the superior court that defense counsel's tactical
  decisions regarding the  presentation of their diminished-capacity defense
  were all easily within the range of reasonable and  competent
  representation.  See Dunbar, 162 Vt. at 212, 647 A.2d  at 319 (trial counsel
  are permitted  great deal of discretion in decisions regarding trial
  strategy).  As with the plea-bargain claim, the case  law does not support
  petitioner's argument that defense counsel's representation was
  ineffective.  See  State v. Schultz, 681 P.2d 374, 376 (Ariz. 1984)
  (representation was ineffective where counsel  conducted virtually no
  investigation and failed to elicit testimony at trial concerning
  defendant's  consumption of alcohol, even though his primary defense was
  that voluntary intoxication negated his  intent to commit charged crimes);
  People v. Mozingo, 671 P.2d 363, 364-67 (Cal. 1983) (in death-penalty
  case, trial counsel rendered inadequate representation by failing to
  investigate possible  diminished-capacity or insanity defenses, failing to
  request appointment of psychiatrist, and failing to  introduce evidence of
  defendant's mental condition as mitigating circumstance in penalty phase of 
  proceedings);  State v. Savage, 577 A.2d 455, 467 (N.J. 1990) (trial
  counsel's decision to forego  request for psychiatric examination, even
  though defendant had participated in bizarre behavior and  possibly had
  history of mental illness and drug abuse, was contrary to norms of
  competent assistance;  counsel has leeway in electing strategy of defense,
  but strategy should not be chosen without first  taking minimal
  investigatory steps).  We also share the superior court's doubts that the
  fine  distinctions posed by petitioner's expert would have persuaded the
  jury to arrive at a different verdict.



       Finally, petitioner argues that defense counsel's failure to confer
  with him about whether to  request an instruction on second-degree murder
  as a lesser-included offense constituted ineffective  representation and
  prevented the jury from finding him guilty of second-degree murder based on
  his  diminished-capacity defense.  We first note that, had the jury been so
  inclined, it could have found  petitioner guilty of manslaughter based on
  his diminished-capacity defense.  See State v. Wheelock,  158 Vt. 302, 311,
  609 A.2d 972, 978 (1992) (diminished capacity may mitigate murder to 
  manslaughter).  It is not clear from the record whether the decision not to
  request a second-degree  murder instruction was a tactical choice. 
  Assuming that it was not, we conclude that petitioner  cannot demonstrate
  prejudice with respect to this claim, but not for the reasons given by the
  superior  court.

       During the charge conference at petitioner's trial, the district court
  denied the State's request  to include an instruction on second-degree
  murder.  Noting that felony-murder is treated by statute as  first-degree
  murder irrespective of any diminished-capacity defense, see State v.
  Wright, 154 Vt.  512, 518, 581 A.2d 720, 724-25 (1989) (where evidence
  overwhelmingly established that killing  occurred during commission of
  robbery, manslaughter is appropriate charge if malice is absent due to 
  provocation or diminished capacity; second-degree murder instruction would
  have been appropriate  only if no robbery had accompanied homicide), the
  court reasoned that if the jury were to find  petitioner guilty of murder,
  it would have to be first-degree murder.  Petitioner did not challenge, in 
  his direct appeal, the trial court's refusal to instruct the jury on
  second-degree murder.  Nor has he  argued in the instant PCR proceeding
  that such an instruction would likely have led to a different  outcome at
  trial because the jury would probably have determined that he did not


  the underlying felony.  Indeed, petitioner challenges the absence of a
  second-degree murder  instruction based solely on his argument that the
  jury might have accepted his diminished-capacity  defense-an argument that
  fails under our holding in Wright.

       We are aware that defense counsel filed a post-trial motion arguing,
  in part, that the State had  failed to prove the essential element of
  permanent deprivation in the underlying robbery charge.   That motion was
  denied, however.  We have also noted the testimony of petitioner's PCR
  expert that  petitioner could not have had the requisite intent to commit
  robbery because he did not know whose  boots he was wearing.  The
  decedent's boots were not the only item forming the basis for the robbery 
  charge, however.  In any event, petitioner has the burden of demonstrating
  the likelihood that, given  the opportunity, the jury would have found him
  guilty of second-degree murder rather than felony  murder based on a
  determination that he had not intended to rob the decedent.  He has failed
  to make  such a showing. 

       Because we conclude that defendant has failed to satisfy the prejudice
  prong on his last claim  of ineffective assistance of counsel, we need not
  address his arguments that his counsel's failure to  request and receive a
  second-degree murder instruction violated In re Trombly, 160 Vt. 215, 218, 
  627 A.2d 855, 856 (1993) (defendant, not trial counsel, should be one to
  decide whether to seek  submission to jury on lesser-included offenses) and
  13 V.S.A. § 2302 ("The jury by whom a person  is tried for murder, if it
  finds such person guilty thereof, shall state in its verdict whether it is
  murder  in the first or in the second degree.").


                                       FOR THE COURT:

                                       Associate Justice


FN1.  The State's second offer of twenty-to-fifty years imprisonment
  proposed an unlawfully  low  maximum sentence in that, at the time of the
  offer, a conviction for second-degree murder carried a  mandatory maximum
  sentence of life imprisonment.  See 13 V.S.A. § 2303(b).
FN2.  At the time, the presumptive sentence for first-degree murder was
  thirty-five years to life  imprisonment, with a possible range on the
  minimum sentence from fifteen years to life  imprisonment without parole. 
  See 13 V.S.A. § 2303(a).