In re Gould

In re Gould (2002-262); 177 Vt. 7; 852 A.2d 632

2004 VT 46

[Filed 06-Jun-2004]


       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.


                                 2004 VT 46

                                No. 2002-262


  In re Michael Gould	                         Supreme Court

                                                 On Appeal from
                                                 Chittenden Superior Court

                                                 April Term, 2003


  Mary Miles Teachout, J.

  Allison N. Fulcher, Martin & Associates, Barre, for Petitioner-Appellant.

  Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
    Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.

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


       ¶  1.  JOHNSON, J.   Petitioner, Michael Gould, appeals the
  Chittenden Superior Court's denial of his post-conviction relief motion. 
  Gould claims that the court violated his statutory right to counsel under
  13 V.S.A. §§ 5231, 5233, when it failed to assign new counsel after
  permitting the previous post-conviction relief counsel to withdraw.  In
  light of the right to counsel afforded by our Public Defender Act, the
  court erred in refusing to appoint new counsel to assist Gould on his first
  post-conviction relief petition.  Accordingly, we reverse and remand.
   
       ¶  2.  Petitioner Michael Gould was arraigned in Chittenden District
  Court and pled not guilty to charges of assault and robbery.  Gould
  subsequently changed his plea to nolo contendere.  At the plea hearing,
  after discussing the plea terms, petitioner stated that he understood that
  he could be sentenced to eighteen to twenty years.  The district judge
  accepted the change of plea, finding it to be voluntary, factually based,
  and made with knowledge and understanding of the consequences and after a
  knowing waiver of constitutional rights. 

       ¶  3.  At the sentencing hearing in August 1999, the trial judge
  imposed a sentence of  between fifteen and twenty years.  The judge
  explained that the ten-year minimum recommended in the presentence
  interview report was too short in light of petitioner's history of felony
  convictions.  On the other hand, the judge credited petitioner's remorse by
  departing downward from the eighteen-year minimum requested by the
  prosecution.  Defense counsel filed a motion to reconsider the sentence in
  November 1999, which the trial judge denied, reasoning that the sentence
  was not imposed in passion, was legal, and was based on petitioner's
  criminal history and the danger he posed to society. 

       ¶  4.  Gould filed a pro se motion for post-conviction relief in
  superior court, alleging that his "conviction and/or sentence are in
  violation of the United States and Vermont Constitutions."  In particular,
  he alleged that the trial judge committed judicial misconduct by attempting
  to coerce a plea agreement with off-the-record threats of a lengthy
  sentence if Gould proceeded to trial and was found guilty.  Gould also
  alleged that, in the same discussion, the judge promised a lighter ten-year
  minimum sentence if Gould would plead guilty.  Gould further claimed that
  the failure of his trial attorney and the prosecution to object to the
  alleged coercion constituted ineffective assistance of counsel and
  prosecutorial misconduct. 
   
       ¶  5.  Gould included a request for appointment of counsel in his
  motion.  Because the Prisoner's Rights Office had a conflict of interest,
  the superior court appointed Robert Andres as Gould's counsel.  Attorney
  Andres also had a conflict of interest and was replaced as counsel in
  September by Martin Maley.  By March 2001, attorney Maley had joined the
  Public Defender's Office and had been replaced by William Norful.   

       ¶  6.  After a status conference, Norful told Gould that he would call
  him to follow up about additional witnesses that Gould hoped would have
  information favorable to his petition.  When Norful did not call, Gould
  sent him a letter indicating that there were more witnesses in the case. 
  Norful had decided, however, that to "avoid any misunderstandings" all
  future attorney client communication would be in writing.  Norful replied
  accordingly with a two-page letter that made cursory review of each of
  Gould's three claims.  Norful wrote the letter prior to conferring with
  Gould's trial counsel regarding the events at issue in Gould's petition. 
  In the letter, Norful told Gould that there were insufficient grounds on
  which to present Gould's claims to the court.  In essence, Norful told
  Gould he would not represent him.

       ¶  7.  At that point, Gould apparently became concerned that Norful
  would not zealously advocate on his behalf. Gould filed a pro se motion to
  bar attorney Norful from amending the petition until Norful contacted him
  to talk about the case.  In that motion, petitioner requested the court
  forward a letter to Norful because he claimed that Norful had not contacted
  him and would not return his telephone calls.  The court refused to act on
  the pro se motion or to forward Gould's mail to his attorney.  After
  receiving notice that the superior court would not act on his pro se
  motion, Gould informed the court that he had written a letter to the
  professional conduct board about his attorney.  
   
       ¶  8.  Norful responded by filing a one sentence motion to withdraw
  stating that "counsel and client have divergent theories of case
  progression."  At the hearing on Norful's motion to withdraw, Norful
  informed the judge that Gould's petition alleged prosecutorial and judicial
  misconduct, as well as ineffective assistance of counsel.  Norful then went
  on to state that he could not "find" evidence in the record to support his
  client's claims.  Norful explained that he moved to withdraw because the
  "necessary . . . attorney client relationship" was adversely affected and
  Norful felt he could not "communicate with any competence regarding
  [Gould's] claims."  He continued by stating that, as Gould's appointed
  counsel, he could "not find grounds, not even colorful grounds, not even a
  scintilla of evidence that [he could] come forward and make a plausible
  claim to [the] merits before the court.". 

       ¶  9.  The judge proceeded to explore the steps that Norful had taken
  to investigate Gould's claims.  Norful described his review of the relevant
  transcripts and his approximately forty-five minute discussion with Gould's
  trial counsel.  For his part, Gould tried to provide more detail about the
  communication between him and Norful until the judge interjected that she
  was not going to get into the middle of attorney-client correspondence. 
  She stated that: "[a]ll I'm trying to do is figure out whether or not there
  is either a conflict or a problem of incompetence."  The judge then
  reiterated the actions that Norful claimed he had taken in furtherance of
  Gould's petition, and announced that she was satisfied that Norful had been
  competent, thorough, and responsible.  She then told Gould that he was not
  entitled to more assistance than Norful had already provided him and that
  "based on what [she] had seen, there does not appear to be grounds for the
  Court to appoint another attorney for [Gould]."     
   
       ¶  10.  After noting the lack of objection from the State, the judge
  granted Norful's motion to withdraw.  She then announced that she would not
  appoint another attorney for Gould, even though, as Gould pointed out, he
  had not requested that Norful be removed.  She then told Gould "if you want
  to proceed on your own, that's fine, or get an attorney yourself, that's
  fine."  Later, Gould renewed his motion for appointment of counsel.  The
  judge denied Gould's motion on grounds that the matter was fully considered
  at the hearing on the motion to withdraw.  


       ¶  11.  In January 2002, the State filed a motion for summary judgment
  accompanied by a memorandum of law, a statement of undisputed facts, and
  six exhibits.  The motion raised, among other things, Gould's failure to
  present any nonhearsay evidence in support of his three claims.  In support
  of its argument, the State cited several Vermont cases as well as the text
  of V.R.C.P. 56.  Gould filed a handwritten motion for extension of time to
  respond because he had been moved to another correctional facility in
  Virginia and it did not have any Vermont law books.  The judge granted
  Gould an extension, but Gould was never able to access any legal resources
  and was forced to respond to the State's motion without access to Vermont
  statutes, rules, and case law. 

       ¶  12.  The same judge who granted Norful's motion to withdraw granted
  the State's motion for summary judgment.  Eight months earlier, she had
  heard Gould's court-appointed advocate describe how his review of Gould's
  case had not produced "even a scintilla" of supporting  evidence.  Not
  surprisingly, after reviewing the State's motion for summary judgment, the
  judge concluded that Gould had failed in his unguided attempt to produce
  the evidence necessary to survive summary judgment.  Gould appeals from
  that ruling, asserting solely that the court erred in failing to appoint
  substitute counsel to assist him with the presentation of his petition
  after it allowed Norful to withdraw. 

                                     I.
   
       ¶  13.  Petitioner's statutory right to the assistance of counsel on
  his first PCR motion was improperly denied when the trial court refused his
  request to appoint new counsel after allowing his previous counsel to
  withdraw.  The Public Defender Act (PDA), enacted in 1972, created a
  statutory framework for implementing the constitutional right to counsel
  for accused indigents at trial and on appeal.  1971, No. 161 (Adj. Sess.),
  § 6; see also State v. Wool, 162 Vt. 342, 348-49, 648 A.2d 655,659-60
  (1994) (discussing the origin and purpose of the PDA).  The PDA also takes
  the additional step of guaranteeing the right to counsel on post-conviction
  review to needy individuals who have been convicted of crimes, even though
  providing such assistance is not constitutionally compelled.  13 V.S.A. §
  5233(a)(3); see also In re Chapman, 155 Vt. 163, 166, 581 A.2d 1041, 1043
  (1990) (recognizing that there is no federal constitutional right to
  counsel on post-conviction review).    The statute provides, that "[a]
  needy person who is . . . being detained under a conviction of a serious
  crime, is entitled to be represented by an attorney to the same extent as a
  person having his own counsel . . . . in any [] post-conviction proceeding
  that the attorney or the needy person considers appropriate."  13 V.S.A. §§
  5231, 5233(a)(3); see also In re Morse, 138 Vt. 327, 328-29, 415 A.2d 232, 232-33 (1980). 
   
       ¶  14.  Prior to the enactment of the PDA, the trial court had
  discretion over the appointment of counsel for needy persons on
  post-conviction review.  Unlike § 5233 (a)(3) of the PDA, the PCR statute
  states that "[t]he court may appoint counsel if the prisoner is unable
  financially to employ counsel."  13 V.S.A. § 7137 (emphasis added).  The
  right to counsel provision in the PCR statute codified at 13 V.S.A. § 7137
  was enacted as part of 1966, No. 41 (Sp. Sess.), § 2.  The PCR right to
  counsel provision codified at 13 V.S.A. § 5233 (a)(3) of the PDA was
  enacted as 1971, No. 161 (Adj. Sess.), § 6.  Thus, by implication, the
  later enacted PDA provision superseded the earlier enacted PCR provision
  that deals with exactly the same issue.  Comparing the plain language of
  the two statutes,  we infer that with the enactment of the PDA, the trial
  court's duty to appoint counsel to assist qualified indigents on PCR became
  mandatory.  Cf. Russell v. Armitage, 166 Vt. 392, 403, 697 A.2d 630, 637
  (1997) ("Our goal in interpreting statutes is to effect the intent of the
  Legislature, which we attempt to discern first by looking to the language
  of the statute.").  

       ¶  15.  The State claims that the appointment of "substitute" counsel
  in this situation is committed to the sound discretion of the trial court. 
  The cases relied upon by the State in making this argument address an
  altogether different situation.  In those cases, the trial defendants
  sought a counsel substitution, i.e., a switch from one assigned counsel to
  another; none of the defendants involved were forced to go without counsel
  against their wishes although, some were forced to work with counsel they
  did not like.  See In re Dunbar, 162 Vt. 209, 217, 647 A.2d 316, 322 (1994)
  (trial court denied defendant's motion to substitute counsel and kept
  counsel on through trial).

       ¶  16.  Gould relies on In re Morse, 138 Vt. 327, 415 A.2d 232 (1980),
  to support his claim on appeal.  In Morse, as in the instant case, a
  convicted prisoner filed a pro se motion for post-conviction relief
  pursuant to 13 V.S.A. § 7131.  The petitioner in Morse requested that
  counsel be appointed.  The trial court refused petitioner's request for
  appointment of counsel and for a hearing on the petition, ruling that the
  "files and records of the case 'conclusively show that the plaintiff is
  entitled to no relief and therefore no hearing on the motion is necessary.'
  " Id. at 328, 415 A.2d  at 232 (quoting 13 V.S.A. § 7133).  We reversed and
  remanded for appointment of counsel based on our interpretation of the PDA
  sections at issue here.  Id. at 329-30, 415 A.2d  at 233.  In so holding, we
  reasoned that:
   
    [o]ur law is clear that when a needy person is entitled to the
    appointment of an attorney, that appointment must be made.  The
    failure of the court to appoint counsel to assist the defendant
    before any ruling was made on the [post-conviction relief] motion
    was error of such prejudice that the ruling below must be
    reversed, and the matter remanded for the appointment of counsel
    to assist defendant in the proper preparation of his motion.

  Id. at 330, 415 A.2d  at 233.

       ¶  17.  Morse's case had been dismissed pursuant to a provision in the
  PCR statute that requires the court to make a preliminary review of the PCR
  motion before forwarding it to the State.  13 V.S.A. § 7133.  If the trial
  court determines after reviewing the "files and records of the case" that a
  prisoner is not entitled to relief, the trial court must summarily dispose
  of the case without the need for any further proceedings or a hearing.  Id.  
  In remanding the case for appointment of counsel to assist Morse, we stated
  that "[i]f, after conferring with counsel and reviewing the record of the
  original proceeding, it appears that defendant has a meritorious claim, he
  may proceed anew under 13 V.S.A. §§ 7131-7137."  Morse, 138 Vt. at 330, 415 A.2d  at 233.  Our statement was a reference to the fact that Morse's
  petition still had to clear the statutory hurdle presented by 13 V.S.A. §
  7133, i.e., that it had merit, before progressing to a dispositive,
  adversarial hearing.

       ¶  18.  Nothing in Morse or 13 V.S.A. § 7133 contradicts our current
  conclusion that Gould had a right to new counsel after the trial court
  allowed Norful to withdraw.  Here, the trial court had forwarded the
  petition to the State, thus removing it from the ambit of 13 V.S.A. § 7133.  
   
       ¶  19.  In Morse, we emphasized that the right to counsel under the
  statute applies   "at all stages of a criminal proceeding listed in 13
  V.S.A. §§ 5232-5233, including the right to be represented at . . . any
  'post-conviction proceeding that the attorney or the needy person considers
  appropriate.' " 138 Vt. at 328-29, 415 A.2d  at 232-33 (quoting 13 V.S.A. §
  5233(a)(3)) (emphasis added).  Nonetheless, the trial court discharged
  Norful before the case had progressed beyond its preliminary phase, thus
  depriving Gould of the assistance of counsel when it mattered most. 
  Moreover, there can no doubt that Gould considered assistance of counsel
  "appropriate" here, and that he made his assessment clear to the trial
  court at both the hearing on Norful's motion to withdraw - which he
  ostensibly opposed - and by his subsequent motion for appointment of new
  counsel.  
   
       ¶  20.  The State argues that the superior court fulfilled its
  statutory duty to provide petitioner with counsel because Norful, as
  "competent counsel," provided Gould with "unbiased legal advice" that his
  claims lacked merit.  Far from fulfilling Gould's statutory right to
  counsel, the process below effected a double deprivation of counsel. Cf.
  State v. Lewis, 291 N.W.2d 735, 738 (N.D. 1980) (requiring appointment of
  substitute counsel as soon as first appointed counsel makes opinion of
  frivolity known to court so as to eliminate defendant's "double burden" of
  showing that appeal has enough merit to warrant appointment of substituted
  counsel, then later that it has enough merit to warrant reversal).  The
  first deprivation occurred when Gould's appointed advocate undermined his
  case by providing the court with a resoundingly negative assessment of the
  case.  Norful's hearing testimony, in both tone and content, potentially
  damaged Gould's case.  Norful at no time communicated, in any significant
  capacity, with the court on behalf of Gould.  Instead he appeared as
  Gould's de facto adversary at a hearing where his interests were at odds
  with Gould's.  This Court has no reason to question Norful's sincere belief
  that there were no grounds, "not even colorful grounds, not even a
  scintilla of evidence" supporting his client's position.  Nonetheless, such
  statements hardly satisfy a petitioner's expectation of zealous
  representation by counsel.  As the Pennsylvania Supreme Court observed,
  petitioners in Gould's situation are "sandbagged when the counsel appointed
  by one arm of the Government seems to be helping another [arm] to seal his
  doom."  Commonwealth v. Jones, 301 A.2d 811, 815 (Pa. 1973) (quoting Suggs
  v. United States, 391 F.2d 971, 974 (D.C. Cir. 1968)).   When this
  occurred, petitioner was left pro se to explain why the relationship with
  his counsel had broken down.  At the same time, Gould had to convince the
  court that his appraisal of the case, not that offered by his own counsel,
  warranted the appointment of substitute counsel.  

       ¶  21.  The second deprivation occurred when the court refused to
  appoint substitute counsel.  This was a first petition for PCR and the
  claim involved matters outside the record.  An effective presentation of
  the case needed the assistance of counsel to gather the evidence and
  provide affidavits, if possible, to respond to the summary judgment motion. 
  As the United States Supreme Court reasoned in an analogous context, the
  adversarial system of justice is "premised on the well-tested principle
  that truth - as well as fairness - is best discovered by powerful
  statements on both sides of the question." Penson v. Ohio, 488 U.S. 75, 84
  (1988) (internal citation omitted).  We can only assume that Gould, sitting
  in a Virginia prison with no Vermont law library, was unable to muster the
  most powerful statements for his side without aid of counsel.  

       ¶  22.  We have repeatedly recognized that persons who voluntarily
  forego the aid of counsel likely do so to their detriment.  See, e.g.,
  State v. Wool, 162 Vt. 342, 346, 648 A.2d 655, 658 (1994); State v. Dragon,
  135 Vt. 168, 169, 376 A.2d 12, 13 (1977); accord, Faretta v. California,
  422 U.S. 806, 834-35 (1975) (discussing the "dangers and disadvantages of
  self-representation").  The Legislature recognized the advantage of
  counsel, even at the post-conviction relief stage, in the explicit language
  of the Public Defender Act. Upon remand, new counsel shall be appointed to
  assist Gould.

                                     II.
   
       ¶  23.  The trial court's denial of counsel in this case can be easily
  remedied, but we are not unmindful of the tensions between counsel and
  petitioner that resulted in the trial court's refusal to appoint another
  lawyer.  For petitioners, a PCR is the last chance to attack the
  conviction.  For appointed counsel, the viable issues for attack may be
  few.  Therefore, the specter of sanctions for filing frivolous claims hangs
  over the conscientious lawyer, while the unconscientious lawyer looks for
  any avenue of escape from the representation.  Our challenge is to construe
  the PDA statute so that it delivers a meaningful right to counsel for
  petitioners consistent with the apparent legislative intent of the PDA,
  while still protecting attorneys from unnecessary entanglements with the
  professional responsibility board. 

       ¶  24.  In Vermont, the potential for ethical issues to arise in PCR
  cases is diminished somewhat by the provisions of the PCR statute that
  allow the trial court to make a dispositive determination of a motion's
  merit before forwarding it to the State and holding further hearings.  13
  V.S.A. § 7133.  Presumably, a case that properly falls within this category
  will require less effort on counsel's part than cases where the record
  presents more viable arguments against the underlying conviction.  In
  addition, the PCR statute makes clear that the trial "court is not required
  to entertain a second or successive motion for similar relief on behalf of
  the same prisoner."  Id. § 7134.  Thus the Legislature has attempted to
  strike a balance between giving prisoners all the tools they need to mount
  a final attack on their convictions and to make sure that they were arrived
  at fairly, while keeping the court and its officers free from absolutely
  groundless cases.  
   
       ¶  25.  Notwithstanding these statutory safeguards, the ethical and
  practical issues presented by this case do arise and can be handled by
  rulemaking.  In fact, the PDA encourages implementation via the rulemaking
  process.  See 13 V.S.A. § 5204 ("The supreme court shall make such rules as
  shall further the intent and purposes of this chapter.").  Therefore, we
  refer this issue to the Criminal Rules Committee with instructions to
  propose a rule that will prospectively address the issues discussed herein
  for future cases.  As part of its further study of the issue, the rules
  committee should look to the experience of the several states that have
  confronted the precise problem that is before us today - providing PCR
  petitioners with counsel even when first appointed counsel seeks to
  withdraw on grounds that the underlying claim is frivolous.  These
  jurisdictions have mandated procedures, by rule or decision, to safeguard
  the right to counsel in the PCR context.  See State v. Rue, 811 A.2d 425,
  435-37 (N.J. 2002) (requiring appointment of counsel to indigents on first
  PCR; prohibiting withdrawal of counsel notwithstanding counsel's belief
  that petition is without merit; and creating narrow exception to ethical
  rule governing attorney representation in frivolous cases);  Tazruk v.
  State, 67 P.3d 687, 693-94 (Alaska Ct. App. 2003) (Coats, C.J., concurring)
  (recognizing court's use of Anders type procedure to certify that petition
  is without merit before permitting appointed PCR counsel to withdraw);
  Johnson v. State, 364 S.E.2d 201, 201 (S.C. 1988).

                                    III.

       ¶  26.  We reverse and remand summary judgment on Gould's PCR.  On
  remand, Gould shall be provided with ample time to work with new appointed
  counsel to amend his petition as necessary and to have assistance of
  counsel in opposing State's summary judgment motion or at any other hearing
  related to the PCR that may occur in the case. 

       Reversed and remanded for further proceedings consistent with the
  views expressed herein.  


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice