In re: Scott Beyor, No. 457-6-09 Rdcv (Teachout, J., Oct. 26, 2010)

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                                                 STATE OF VERMONT
SUPERIOR COURT                                                                             CIVIL DIVISION
RUTLAND UNIT                                                                               Docket # 457-6-09 Rdcv


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IN RE: SCOTT BEYOR                           )
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                                   Petition for Post Conviction Relief
                            Findings of Fact, Conclusions of Law, and Order

         This matter came before the court for a final evidentiary hearing on October 19,
2010. Petitioner was present and represented by Attorney Paul D. Jarvis. The State of
Vermont was represented by Rutland State’s Attorney Marc D. Brierre. Petitioner seeks
relief from convictions on April 28, 2010 for burglary of an occupied dwelling, assault
and robbery with a weapon, and false information to a police officer to implicate another,
all on grounds of ineffective assistance of his attorney. He is serving a combined
sentence of 10-24 years.

       Based on the credible evidence under a standard of preponderance of the evidence,
the court finds the following facts and makes the following ruling of law.

                                                              Findings of Fact

         Scott Beyor is 36 years old, and has been diagnosed with PTSD, severe
depression, and borderline personality disorder. On October 15, 2007, he was drinking at
his girlfriend’s house, and also took multiple doses of prescription medication. After she
kicked him out, he was walking outside. It was sprinkling, and he was cold and hungry.
He picked a house at random, rang the bell a few times, got no response, and then entered
the house by breaking a window with a log. He made himself an egg and bacon
sandwich, and was eating it. The owner, an 80 year old woman, was sleeping upstairs.
She heard noises and called for help and barricaded herself into her bedroom, which was
already locked. Mr. Beyor grabbed a kitchen knife, went upstairs and down a hall, and
broke into her bedroom, brandishing the knife. He shouted to her to give him her purse,
which she did. He ran out of the bedroom and left the house. A few hours later he was
walking along the road and appeared intoxicated to a police officer who stopped to check
on him. He gave a false name. The officer asked him to empty his pockets, advising him
that he did not have to do so. He voluntarily complied, and took a woman’s change purse
and various store cards out of his pocket. The officer noticed an AARP card and a credit
card with a name other than the name he had given. The officer contacted dispatch,
learned of the home invasion, and arrested Mr. Beyor. Later, upon questioning after
having been notified of Miranda warnings, he confessed to entering the home and
cooking himself a sandwich. His versions of other parts of the story were different than
those later gathered from the victim.
       He was arraigned that day. Attorney Matthew Branchaud was assigned to
represent him and they met in person at the arraignment. Mr. Beyor was held in jail on
$250,000 bail.

        Two weeks later, the State noticed the deposition of the victim. Mr. Branchaud
himself had intended to depose her, but the State noticed her deposition at an unusually
early date, perhaps because of her age. Mr. Branchaud represented Mr. Beyor at the
deposition, and over the next several months they had several conferences about the case,
nearly all of which were by telephone.

        Mr. Branchaud was particularly interested in the circumstances of the police
officer’s stop of Mr. Beyor by the side of the road, as he thought it might provide grounds
for a motion to suppress if there was anything constitutionally improper about the stop.
He asked Mr. Beyor about it, and Mr. Beyor described the encounter in the same way the
police officer described it in the affidavit accompanying the information. Specifically,
Mr. Beyor described that he had voluntarily emptied his pockets in response to the police
officer’s request, and knew that he was under no compulsion to do so. As a result of
examining Mr. Beyor’s own account of the stop, Mr. Branchaud concluded that he did
not have a good faith basis to take the officer’s deposition or file a motion to suppress.

       Mr. Branchaud obtained approval for funding to hire Dr. Philip Kinsler to do an
evaluation in the hope of pursuing a diminished capacity defense. After the evaluation,
he concluded that Dr. Kinsler’s opinions did not support a diminished capacity defense.
He also concluded that Dr. Kinsler’s opinions about Mr. Beyor’s mental health history
and condition could be used at sentencing for purposes of mitigating the severity of the
sentence, and he did call Dr. Kinsler as a witness at the sentencing hearing for that
purpose.

       The evidence against Mr. Beyor was strong. Mr. Branchaud and Mr. Beyor
discussed many times what strategy to take with the case. The State offered a plea
agreement with a sentence of 14-25 years. Mr. Branchaud thought that such a sentence
would be excessive. The most realistic options were to go to trial, or to plead guilty and
have a contested sentencing hearing at which the defense would seek a sentence much
lower than the State was recommending.

         Mr. Branchaud discussed the pros and cons of these options with Mr. Beyor.
Among other factors, he told Mr. Beyor that there was a risk that if they went to trial, the
judge would be annoyed at the use of time and expense of public resources on a two day
trial where the evidence was so strong.1 The evidence does not support a finding that Mr.
Branchaud used this concept to pressure Mr. Beyor to enter a plea. He also gave him
other factors to consider related to the trial process, such as the admissibility of evidence
at trial. Mr. Beyor wavered back and forth about whether or not to go to trial. On at least


1
 I am not aware of any trial judge who would punitively impose an increased sentence for the reason that a
defendant chose to exercise his or her constitutional right to go to trial.


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two occasions, he told Mr. Branchaud he wanted to go to trial. There is no evidence that
Mr. Branchaud sought to dissuade him from this decision.

        In the end, Mr. Beyor decided to plead guilty and seek as short a sentence as he
could get at a sentencing hearing before the judge. On April 28, 2010, he pled guilty to
all three counts under an agreement that the State would not argue for a maximum
sentence greater than 20-35 years. There was a possible maximum on the combined
charges of 41 years.

         At the change of plea hearing, the judge reviewed the elements of the burglary
charge with Mr. Beyor. When the judge asked him if he agreed that the State could prove
beyond a reasonable doubt that he entered an occupied dwelling with the intent to commit
petit larceny, Mr. Beyor said, “The intent, no, but, yes, I plead guilty.” The judge sought
to clarify with a few more questions, and Mr. Beyor said, “Yes, I did enter a dwelling. It
was not my intent to commit larceny, but I’m aware of the wrongdoing.” At that point,
Mr. Branchaud asked, “Can I have a moment, Your Honor?” The request was granted,
and Mr. Branchaud and Mr. Beyor conferred off the record. After that, the judge asked,
“Mr. Beyor, do you agree that the State could prove that?” Mr. Beyor answered, “Yes,
Your Honor.” The judge accepted the guilty plea on the burglary count, and proceeded
with the other two counts.

        When the acceptance of the pleas and discussion of time needed for a sentencing
hearing was complete, Mr. Branchaud asked the judge, “Your Honor, before we move,
can I just have a discussion with Mr. Beyor quick. . .before we fully take this.” The
request was granted, and there was a pause in the proceedings for a conference between
Mr. Branchaud and Mr. Beyor. After that, Mr. Branchaud asked for ten minutes to speak
with the State’s Attorney on “an issue that I see with the intent on the burglary. . .” The
State’s Attorney borrowed the court’s Title 13, explaining the need to check whether
there was a monetary requirement for petit larceny. The possibility of a $50 or more
requirement for petit larceny had been mentioned. Mr. Branchaud explained that he
“wasn’t aware of this issue prior.”

        The State’s theory of the case had been that Mr. Beyor entered the dwelling with
the intent to steal the money and other things that he later took. Mr. Beyor, during the
plea colloquoy, clarified that he did not have the intent to steal when he entered the home.
However, the issue became whether he had the intent to make and eat a sandwich, which
he had done, and whether the eating of the sandwich qualified as petit larceny, such that
when he entered the dwelling, there was a factual basis for the charge that he intended to
commit a petit larceny. It was on this basis that the hearing continued. There is no
evidence that Mr. Beyor did not agree with this analysis, or wanted to take back his guilty
plea. If there had been a $50 minimum requirement for petit larceny, Mr. Branchaud
would have had grounds to object to a burglary charge, thereby reducing sentencing
exposure considerably, and it appears that he was pursing this possibility for his client.

       On returning to the record, the judge stated, “There’s a question on count one as
to whether or not he had the intent to commit the petit larceny. I know Mr. Branchaud,



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his attorney, was reviewing Title 13 in that regard. Mr. Branchaud?” Mr. Branchaud
responded that “we’ve come to an agreement that the, that there was at least the intent to
commit a petit larceny when he entered the dwelling; therefore, there is a factual basis for
the charge. We, of course, would ask The Court to accept the plea agreement, which it
apparently has.”

       The judge then stated, “. . .just for clarity’s sake, I’m going to retake his plea on
count one. And, Mr. Beyor, we’ve gone through the Rule 11 colloquy and you’ve
discussed this matter fully with Mr. Branchaud, is that correct?”

Mr. Beyor: Yes.

The Court: And you had an opportunity at the break to discuss the issue involving some
of the requirements of count one, is that correct?

Mr. Beyor: Yes.

The Court: And has Mr. Branchaud answered all your questions?

Mr. Beyor: He has.

The Court: And are you satisfied with his advice in this?

Mr. Beyor: I am.

The Court: And based on that, do you agree that the State could prove beyond a
reasonable doubt that you in this territorial unit in the county of Rutland, at Rutland, on
or about October 15, 2007, entered an occupied dwelling knowing that you were not
licensed or privileged to do so with the intent to commit petit larceny?

Mr. Beyor: Yes, sir.

The Court: And do you understand the maximum here is twenty-five years in prison or a
fine of a thousand dollars or both?

Mr. Beyor: I do.

The Court: And do you agree and stipulate that there’s a sufficient factual basis for you
to be convicted of that, that’s beyond a reasonable doubt?

...

Mr. Beyor: Yes, Your Honor.

The Court: Okay, as to the charge, what plea would you enter?




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Mr. Beyor: Guilty.

        The judge reviewed with Mr. Beyor that he had not “had any trouble
understanding these proceedings at all” and that he was not under the influence of
medications or anything that would hinder his ability to understand, and Mr. Beyor
confirmed both points. The judge asked him again what pleas he entered to all three
counts, and Mr. Beyor answered, “Guilty.”

       At the sentencing hearing on July 2, 2008, the State argued for an overall
combined sentence of 20-35 years. Mr. Branchaud presented evidence and argued for a
sentence of 3-10 years. The Court imposed a sentence of 10-24 years. Mr. Branchaud
was disappointed, and thought it was a harsh sentence, and told Mr. Beyor so. Mr. Beyor
thanked him and said that he (Mr. Branchaud) had done a good job.

        At the hearing in this case on Mr. Beyor’s petition for post conviction relief,
Attorney John B. St. Francis testified as an expert witness on the standard of conduct for
an attorney representing a defendant on the facts of this case. He gave his opinion that it
was substandard for Mr. Branchaud not to take depositions and file a motion to suppress
to seek to exclude evidence obtained at the police officer’s initial stop and search of Mr.
Beyor by the side of the road, and that it was substandard not to pursue a diminished
capacity defense to the charges.

        Mr. St. Francis, in rendering his opinion, did not have all the facts that were
presented at the hearing. He did not know that Mr. Branchaud had specifically explored
with Mr. Beyor his own description of the police stop, as part of the process of evaluating
grounds for a motion to suppress. He did not know that Mr. Branchaud concluded, based
on Mr. Beyor’s own description of the stop, that there was not a good faith basis to
pursue a deposition or motion to suppress. With respect to Mr. St. Francis’s opinion that
diminished capacity should have been used by Mr. Branchaud as a defense rather than as
a sentencing factor, Mr. St. Francis did not give a detailed explanation of the reasons for
his opinion. He acknowledged that Dr. Kinsler is a respected expert regarding mental
health issues. Other credible evidence shows that Dr. Kinsler’s evaluation and opinions
could reasonably be determined to show insufficient support for a diminished capacity
defense to the charges.

        Full review of the facts at the hearing shows that Mr. Branchaud did reasonably
and responsibly consider the option of depositions and a motion to suppress, and had a
reasonable basis to support his decision not to pursue that course. The opinion testimony
that a diminished capacity defense should have been used was not persuasive.

       Another issue raised by the evidence in the case is whether Mr. Beyor was
coerced by his attorney to enter pleas rather than go to trial. Expert testimony is not a
prerequisite to an argument that a plea was not voluntarily given. The evidence does not,
however, support a finding that Mr. Branchaud pressured Mr. Beyor to plead in order to
avoid annoying the judge. The evidence shows that while Mr. Branchaud discussed
many factors with Mr. Beyor about whether or not to go to trial, including the possibility



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of annoying the judge, the decision was made voluntarily by Mr. Beyor after weighing
both options and other factors over the course of several discussions.


                                    Conclusion of Law

       Petitioner has not met the burden of proof to show ineffective assistance of
counsel on the part of Mr. Branchaud, or that his entry of pleas was based on coercion
from Mr. Branchaud.


                                           Order


       Judgment is entered for the State. The petition for post conviction relief is
dismissed.


       Dated at Rutland this 26th day of October, 2010.


                                                     ____________________________
                                                     Hon. Mary Miles Teachout
                                                     Superior Judge




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