In Re: Eric Williams, No. S1658-04 CnC (Norton, J., July 8, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]


STATE OF VERMONT                                                       SUPERIOR COURT
Chittenden County, ss.:                                            Docket No. S1658-04 CnC



IN RE ERIC WILLIAMS



                                            ENTRY
       This matter concerns a post-conviction relief petition. Petitioner Eric Williams’s
counsel, Mark Furlan, filed a request to withdraw. The court denied this request, holding
that Attorney Furlan must first file an affidavit specifying (1) petitioner’s claims, (2) law
or argument that could conceivably support such claims, and (3) a statement that counsel
does not consider petitioner’s claims to be warranted by existing law or by nonfrivilous
argument for the extension, modification, or reversal of existing law or the establishment
of new law. Attorney Furlan has now filed a motion to reconsider, submitting two
affidavits to demonstrate that the legislative intent behind a recent amendment to the law
governing rights to counsel in post-conviction relief petitions, 13 V.S.A. § 5233(a)(3),
was contrary to the court’s ruling.
        Part of the court’s reasoning in requiring an affidavit from Attorney Furlan was
based on indications from the Vermont Supreme Court that a requirement akin to that of
Anders v. California, 386 U.S. 738, 744–45 (1967), was necessary before a post-
conviction relief petition counsel could withdraw. See In re Moreno, No. 2004-120, slip
op. at 3 (Vt. Nov. 10, 2004) (unpublished mem.); Wool v. State, Docket No. 2004-323,
slip op. at 1 (Vt. Sept. 9, 2004) (unpublished mem.). The Court issued both of these
decisions after the Legislature amended § 5233(a)(3). Thus, Attorney Furlan’s argument
that this court’s decision is contrary to the current statute is unavailing.
       Moreover, the affidavits that Attorney Furlan submits do not indicate that the
court’s ruling is inconsistent with the legislative intent behind the amendment to
§ 5233(a)(3). In one affidavit, Vermont Defender General Matthew Valerio states that
the intent behind the amendment was “to give the Defender General the right to refuse
representation in frivolous or de minimus cases brought by inmates under the Public
Defender Act.” In the other, Representative Margaret Flory states that the House
Judiciary Committee’s “intent in passing th[e] amendment was to relieve the Defender
General’s Office from pursuing frivolous post conviction relief matters.”
       The court’s ruling does not contravene the Defender General office’s ability to
forgo taking post-conviction relief cases that it deems frivolous upon a preliminary
review. To the extent that this was the Legislature’s intent, the court’s ruling is consistent
with that intent. The court’s ruling merely requires that once an attorney has agreed to
represent a prisoner, that attorney cannot withdraw upon a unilateral discovery that all of
the prisoner’s claims are frivolous. In such circumstances, the attorney must provide an
Anders-type submission to explain why the claims are without merit. This ruling is made
pursuant to the court’s authority under V.R.C.P. 79.1(f), not necessarily pursuant to §
5233(a)(3).
                                          ORDER
       For the foregoing reasons, Attorney Furlan’s motion to reconsider is DENIED.


       Dated at Burlington, Vermont, July 8, 2005.



                                                            ____________/s/____________
                                                                                  Judge
