2013 VT 43


In re Kimmick (2011-378)
 
2013 VT 43
 
[Filed 21-Jun-2013]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 
 

2013 VT 43

 

No. 2011-378

 

In re William Kimmick


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Windsor Unit,


 


Civil Division


 


 


 


October Term, 2012


 


 


 


 


Katherine
  A. Hayes, J.


 

William A. Kimmick, Pro Se, Beattyville,
Kentucky, Petitioner-Appellant.
 
William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for
Respondent-Appellee.
 
Matthew S. Stern of Gravel & Shea PC, Burlington, for Amicus
Curiae Gravel & Shea PC.
 
Matthew F. Valerio, Defender General, Anna Saxman, Deputy
Defender General, and 
  Thomas Tarnow (On the Brief), Montpelier, for Amicus
Curiae Office of the Defender General.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Bent, Supr. J., 
                    
Specially Assigned
 
 
¶ 1.            
REIBER, C.J.   Petitioner William Kimmick appeals from
a judgment of the superior court, civil civision, denying his petition for
post-conviction relief (PCR) alleging ineffective assistance of counsel at
sentencing.  Petitioner contends the trial court
erred in: (1) granting his assigned PCR counsel’s motion to withdraw; and (2)
rejecting petitioner’s claim that his trial attorney committed fundamental
errors affecting the sentence.  In addition, amicus curiae appointed by
the Court to assist petitioner asserts that the Defender General’s
post-conviction merit-review procedures violated petitioner’s due process
rights.  We affirm. 
¶ 2.            
Although lengthy, a full statement of the procedural history is helpful
to understand the issues; additional material facts will be set forth in the
discussion that follows.  Petitioner was originally charged with
second-degree murder in the killing of his ex-wife, Katherine Kimmick, in
January 2004.  In November 2004, petitioner entered a negotiated plea of
guilty to an amended charge of manslaughter.  The plea bargain allowed
both parties to argue for any lawful sentence.  Following a contested
sentencing hearing in April 2005, defendant was sentenced to fourteen to
fifteen years to serve.  Defendant appealed the sentence, alleging that
the trial court erred in permitting unsworn victim-impact testimony, allowing a
non-victim to testify, and imposing a sentence in which the minimum and maximum
terms were effectively the same.  We affirmed.  State
v. Kimmick, 2007 VT 45, 181 Vt. 635, 928 A.2d 489 (mem.).
¶ 3.            
In April 2008, petitioner filed a pro se PCR petition, asserting that
his trial attorney had provided ineffective assistance at sentencing in several
respects.  Petitioner claimed principally that counsel violated his right
to allocution under Vermont Rule of Criminal Procedure 32(a)(1)(C)
by threatening to withdraw if petitioner testified at the sentencing hearing
about the victim’s alcohol problem and violent propensities.  Petitioner
also asserted that trial counsel was deficient in failing to correct or rebut
allegedly inaccurate information in a psychiatric evaluation, as well
misstatements in the pre-sentence investigation report (PSI); failing to object
to unsworn victim-impact testimony and the testimony of a non-victim witness;
and failing to present an adequate case at the hearing.  The lengthy PCR
petition was supported by a number of exhibits.
¶ 4.            
Shortly after the filing of the petition, the trial court appointed Seth
Lipschutz of the Prisoner’s Rights Office to represent petitioner.  In May
2008, attorney Lipschutz wrote to petitioner informing him that the State’s
Attorney had consented to a new sentencing hearing but would oppose the
imposition of a different sentence.  Petitioner rejected the offer. 
Following a hearing in June 2008, the trial court granted attorney Lipschutz’s
motion to withdraw and appointed attorney Mark Furlan to represent petitioner.
¶ 5.            
The record discloses a number of status conferences with attorney Furlan
and the State’s Attorney over the next several months involving efforts to
resolve the complaint.  A September 3, 2009, letter to the court from
attorney Furlan, however, explained that negotiations with the State’s Attorney
had broken down and that his new plan was to attempt find an expert attorney to
support petitioner’s ineffective-assistance claims.  A docket entry from a
status conference in December 2009, however, contains a notation that Furlan
had not been able to obtain an expert witness and had decided to depose
petitioner’s trial attorney, David Williams, as an alternative step. 
Williams was duly deposed in January 2010.  The following month, attorney
Furlan informed the court that he had referred the matter to attorney Charles
Martin for a second opinion.  Martin apparently had a conflict of
interest, and the matter was referred to attorney Adele Pastor.
¶ 6.            
In late April 2010, attorney Furlan filed a motion to withdraw,
informing the court that his review of the case had not revealed any colorable
claims, and that in accordance with the Defender General’s policy, the file had
been reviewed by a second, experienced PCR attorney, Ms. Pastor, who had
reached the same conclusion.  The Defender General simultaneously filed a
letter with the court stating that his office had reviewed the matter,
determined that petitioner’s claims did not support representation under 13 V.S.A.
§ 5233(a)(3),[1]
and would not pay for further representation of petitioner.  
¶ 7.            
Petitioner filed an opposition to the motion, asserting that attorney
Furlan had waived the opportunity to withdraw and that the Defender General’s
screening process did not comply with § 5233.  Shortly thereafter,
petitioner filed an amended pro se petition that focused on the claim that
counsel was ineffective and violated petitioner’s right to allocution by
threatening to withdraw if petitioner blamed the victim and failed to accept
responsibility for the crime.  Following a hearing in June 2010, the trial
court issued an order deferring a ruling on the withdrawal motion until
attorney Furlan had the opportunity to review the amended petition and consult
with petitioner.  Thereafter, Furlan wrote the court explaining that he
had spoken at length with petitioner, reviewed the file and the amended
petition, and remained of the view that the PCR claims lacked merit.
¶ 8.            
The trial court granted the motion to withdraw in late July 2010. 
Petitioner, in response, filed a notice of pro se appearance and motion for
appointment of a legal expert.  Following a hearing on the motion, another
judge issued an order finding that petitioner had stated a legitimate basis for
appointment of an expert, and “requested” that attorney Furlan review the
motion and file any objection to his reappointment as counsel of
record.   In a written response objecting to his reappointment, attorney
Furlan stated that his withdrawal had followed more than a year of
investigation and research into petitioner’s claims, and the decided judgment
of himself and two other attorneys that they lacked merit.  The trial
court thereafter issued an order, dated October 14, 2010, finding attorney
Furlan’s objections to be “persuasive” and declining to reappoint him as
counsel for petitioner.  In the same order, the court granted petitioner
thirty days in which to file a proposal identifying an expert witness and the
estimated cost of his or her services.  Petitioner subsequently requested,
and the court granted, an extension to January 2011 to locate an expert. 
¶ 9.            
Petitioner did not identify an expert witness to support the
claims.  Instead, in February 2011, he moved for summary judgment, relying
on the deposition testimony of attorney Williams and his own affidavit. 
The State filed a cross-motion for summary judgment in March 2011, and the
court issued a thirty-three-page ruling in October 2011.  Following an
exhaustive review of the record and analysis of the claims, the court concluded
that attorney Williams had provided effective assistance of counsel, and that
petitioner was not prejudiced by his strategic choices.  Accordingly, the
court entered judgment in favor of the State.  This appeal
followed.       
¶ 10.         Petitioner
claims a procedural infirmity in the trial court’s decision to grant PCR
counsel’s motion to withdraw.  Petitioner argues that attorney Furlan
waived the right to withdraw by representing petitioner for over two years, and
that the review process for determining the right to representation under 13
V.S.A. § 5233(a)(3) fails to adequately protect a defendant’s interests. 
In a similar vein, amicus curiae appointed by the Court asserts that allowing
appointed counsel to withdraw without adequate oversight of the merit-review
determination violates due process.    
¶ 11.         We
considered the procedure for withdrawing from representation in a PCR proceeding
in In re Bailey, holding that “[t]here is no constitutional or statutory
right to insist that counsel elaborate on their motions to withdraw, and [that]
it would undermine the intent of 13 V.S.A. § 5233(a) to require counsel to do
so.”  2009 VT 122, ¶ 15, 187 Vt. 176, 992 A.2d 276. 
Petitioner and amicus assert, however, that while Bailey might apply
where appointed counsel moves to withdraw following an initial review of
the record, it should not control where, as here, counsel has expended
considerable time, effort, and resources investigating the claims before moving
to withdraw.  In these circumstances, it is argued, the petitioner has
acquired a property interest that affords protection from arbitrary action and
requires, “[a]t a minimum, information   .   . 
 .  sufficient to confirm that counsel’s
decision [to withdraw] is not arbitrary or based on improper considerations
outside of § 5233(a)(3).”
¶ 12.         Whatever
merit may inform the argument, we need not resolve it here, as the record—summarized
above—clearly shows that the court’s decision to grant counsel’s motion to
withdraw was not arbitrary or uninformed, and fully satisfied whatever minimal
due protections against unreasoned action a petitioner in these circumstances
might enjoy.  Counsel regularly apprised the court of his efforts and
litigation strategies on behalf of petitioner, explained that he could not
locate an expert to support the claims of ineffective assistance, and indicated
that he would depose trial counsel as an alternative means of attempting to
establish a basis for the claims.  Following the deposition, counsel
further informed the court that he could find no colorable claims that met the
criteria for representation under § 5233, and that this conclusion was shared
by a second, experienced attorney who had reviewed the record and by the
Defender General’s Office.  
¶ 13.         Ordered
by the court to take a second look at the matter, to review the amended pro se
petition, and to consult with petitioner, counsel thereafter filed a letter
with the court outlining his further actions.  Counsel stated that he had
spoken “at some length with petitioner,” re-read pertinent portions of the
record, specifically re-considered petitioner’s principal “contention that his opportunity
to meaningfully allocute  .  .  . was effectively denied him by his counsel’s threat to
abandon representation of him if he did not comply with counsel’s strategy,”
and reviewed the case on which petitioner relied, In re Stevens, 144 Vt.
250, 478 A.2d 212 (1984).  Counsel concluded that, in the end, his opinion
concerning petitioner’s claims “remain[ed]
unchanged.”          
¶ 14.         In
light of this record, we have no difficulty concluding that the court’s
decision to grant counsel’s motion withdraw was neither arbitrary nor
uninformed, and was fully consistent with any minimal due process protections
against arbitrary action that might apply in this context.  
¶ 15.         We
also find nothing inconsistent, as petitioner claims,
between the court’s ruling and its finding that petitioner had made a
sufficient showing for the payment of an expert witness.  As we have
explained, the standard for the payment of “necessary services” under 13 V.S.A.
§ 5231(2) requires a “showing [of] how the assistance advances the argument
that petitioner’s trial was fundamentally flawed.”  In
re Barrows, 2007 VT 9, ¶ 6, 181 Vt. 283, 917 A.2d 490.  Thus,
to obtain the services of an expert, petitioner was required merely to describe
with some particularity “how a legal expert would assist petitioner to prove”
his claims.  Id. ¶ 9.  This is a
separate standard from that of obtaining representation under § 5233, and
independent of any rights under that section.  As we explained in Barrows,
“the assignment of counsel and provision of . . .
services are treated separately, so that waiver or denial of one does not
preclude entitlement to the other.”  Id. ¶ 7. 
Accordingly, nothing in the court’s finding that petitioner had met his burden
for obtaining expert services is inconsistent with its decision granting the
motion for withdrawal of counsel.      
¶ 16.         Turning
to the merits of petitioner’s claims, they focus—as noted—on his contention
that trial counsel rendered ineffective assistance at sentencing by threatening
to withdraw if petitioner or other witnesses testified about the victim’s
alcohol abuse and violent propensities. It is well settled that a defendant who
challenges the adequacy of counsel’s assistance must show by a preponderance of
the evidence, first, that counsel’s performance fell below the standard of a
reasonably competent attorney, and second, that counsel’s failures prejudiced
the defendant, i.e., that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.  Strickland  v. Washington,
466 U.S. 668, 691-94 (1984); In re LaBounty, 2005 VT 6, ¶ 7, 177 Vt.
635, 869 Vt. 120 (mem.).  A trial court’s findings in this context will be
upheld absent a showing of clear error, and its conclusions affirmed if
reasonably supported by those findings.  In re Labounty, 2005 VT 6,
¶ 7.           
¶ 17.         Assessed
in light of this standard, we discern no error.  Although the trial court
found that petitioner had satisfied neither of the requirements for a showing
of ineffective assistance, it is sufficient for our purposes to conclude that
the record amply supports its finding that none of counsel’s alleged
deficiencies prejudiced petitioner.  Substantial information concerning
the victim’s history of alcohol abuse and violence was presented to the
sentencing court.  The PSI contained defendant’s statement that the victim
was drunk on the night of the offense and attacked him with knife; a summary of
a letter from petitioner’s mother explaining that the victim was an alcoholic
and that petitioner was “the battered partner in their relationship”; an
addendum containing eyewitness descriptions of the victim on the night of the
offense, stating that she had been cut off from having any more drinks at a
local bar, became belligerent, and left without paying;  statements by the
victim’s mother and sister acknowledging that the victim drank more than she
should; and a description by the victim’s boyfriend of a similar incident in
which she came home drunk and threatened him with a knife.
¶ 18.         Also
submitted to the sentencing court was a psychiatric evaluation of petitioner in
which he described many prior incidents of alcohol-induced violence by his
former wife.  The report’s author, a board certified psychiatrist,
concluded that petitioner’s account of the crime was “generally consistent with
available information;” that the victim “was a severe alcoholic prone to
explosive and violent episodes that are well documented by numerous individuals
including members of her own family;” that the victim had “attacked
[petitioner] on a number of occasions;” and that petitioner’s actions were a
“response, for the first time, to [the victim’s] countless explosive attacks
and provocations.”    
¶ 19.         At
the sentencing hearing itself, the victim’s mother testified that the victim
had engaged in behaviors that had understandably enraged petitioner; that
petitioner and his former wife  “were both a victim of circumstances” and
that the offense was not “entirely [petitioner’s] fault.”  In addressing
the court, and the State’s attorney admitted the victim’s “inner demons and .  .  .  profound
alcohol problem.”
¶ 20.         It is
thus abundantly clear that the sentencing court was presented with substantial
evidence of the victim’s history of alcohol-induced violence, and that any
additional testimony on the subject by petitioner or others would have been
cumulative and of little additional effect.  See Rose v. McNeil,
634 F.3d 1224, 1243 (11th Cir. 2011) (“Obviously a petitioner cannot satisfy
the prejudice prong of the Strickland test with evidence that is merely
cumulative of evidence already presented.”); People v. Hayes, 961 N.E.2d
311, 322 (Ill. App. Ct. 2011) (holding that trial counsel’s failure to
introduce evidence of victim’s violent character which was “merely cumulative
of that already presented” could not have been prejudicial).  Indeed, in
its findings the sentencing court here expressly recognized that petitioner had
committed the offense while the victim was drunk and armed with a knife, and
that theirs had been a particularly “volatile relationship,” as evidenced by
the statements in the PSI.  The court flatly rejected the notion, however,
that these circumstances militated in favor of a lighter sentence, castigating
petitioner for appearing “to place the blame on” the victim in some of his
statements, and characterizing the offense as “a family tragedy of which you
[petitioner] are the primary author.”  The record thus firmly supports the
court’s finding that trial counsel’s unwillingness to focus on the victim at
sentencing not only failed to prejudice petitioner, but likely redounded to his
benefit. 
¶ 21.         Petitioner’s
remaining claims are equally without merit.  For the reasons discussed
above, we discern no support for a finding of prejudice resulting from
counsel’s failure or refusal to contest statements by the victim’s family
members in the PSI about her propensity for violence, or the lack
thereof.   Petitioner’s reliance on Stevens is also
misplaced.  There, we held that trial counsel’s failure to inform the
petitioner of certain important evidence before the sentencing court had
deprived him of a meaningful opportunity to address the evidence in his
statement in allocution.  144 Vt. at 260, 478 A.2d at
217-18.  Here, there was no showing that petitioner was similarly
misinformed, and equally no showing that petitioner was prejudiced by any
omissions in his statement to the court.  Nor, finally, do we find any
prejudicial misunderstanding by trial counsel as to the nature of the
plea.  As the trial court here noted, attorney Williams twice referred in
his deposition to a concern that the wrong strategy might induce the court to
reject the plea.  He later corrected himself, however, explaining that the
real risk concerned the severity of the sentence to be imposed, and that his
trial strategy for obtaining a lesser sentence than the State had requested was
“for [petitioner] to take full responsibility for his conduct, and not blame
[the victim] for it.”  We thus find no merit to the claims of ineffective
assistance, and no basis to disturb the
judgment.        
Affirmed. 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 
¶ 22.         DOOLEY,
J., concurring.   I concur in the
Court’s decision, essentially for the reasons stated.  I write to put this
case in context with others.   Amicus makes two arguments that I have
favored in the past—that the procedure for withdrawal of representation
employed by the Defender General denies due process of law and that the act of
counsel in accepting representation constitutes a waiver of the right to rely
on 13 V.S.A. § 5233(a)(3) for an automatic withdrawal.  I agree with the
majority that neither fits the facts of this case.
¶ 23.          First,
this is an example of a case where the withdrawing attorney explained the
grounds for withdrawal, a practice the Defender General has argued in the past
must never be done in order to protect the client.  As the majority
explained in ante, ¶¶ 12-13, counsel explained his progress at each step
of his representation, consulted with petitioner and even considered a
supplemental argument made by petitioner and responded in writing.  I
agree that petitioner has a weak case for further due process
protections.  If appointed counsel and the Defender General had made
equivalent disclosures in other cases we have reviewed, I would be more
confident that the Defender General’s process could be fairly applied.  In
my judgment, the main point to draw from this case is that appointed counsel
can disclose the steps in this representation, and in forming counsel’s opinion
on merit, without injuring the client.  I recommend that these steps be
employed in future cases.
¶ 24.         Second,
I agree that the grounds for applying waiver to this case are also weak. 
We need only compare the events here to those in In re Crannell, 2012 VT
85, ___ Vt. ___, 60 A.3d 632, where nine years expired while the Defender
General reviewed petitioner’s entitlement to counsel and found entitlement, or
made no adverse decision, or promised counsel, only to rely on § 5233(a)(3) to
withdraw.  Review in this case took a long time, but there never was a
point where counsel made promises about continuing representation on which he
could not produce.
¶ 25.         Although
I concur in the rejection of the due process and waiver arguments of amicus,
there are aspects of this case that show a process that remains broken. 
Justice Burgess argues in his concurrence that petitioner should have no right
to representation after he rejected the prosecution’s offer of
resentencing.  I draw the opposite conclusion from that event—petitioner’s
claim apparently had enough merit to cause the prosecutor to make a settlement
offer that gave petitioner what he wanted.  That fact, plus the lengthy
analysis and decision of the superior court, gives pause as to whether
appointed counsel is applying the standard of frivolity of Rule 3.1 of the
Vermont Rules of Professional Conduct.
¶ 26.         More
important, the delays in the representation decision for PCRs remains
unacceptable for any justice system.  The challenge here was to what
occurred at sentencing after a guilty plea.  I cannot accept that it takes
two years to determine whether petitioner will have counsel to assert the PCR
claims arising out of sentencing.  As I did in my concurrence in Crannell,
I urge that we impose a much shorter period for counsel review and hold a
waiver has occurred if review has not been completed in that time period.

 


 


 


 


 


 


 


 


Associate Justice

 
¶ 27.         BURGESS, J., concurring.   I concur in
affirming the denial of this PCR petition.  I also concur in upholding the
trial court’s approval of PCR counsel’s motion to withdraw and the Defender
General’s refusal to assign substitute counsel, but arrive at the latter two
points more directly.  The effectiveness of petitioner’s counsel at
sentencing required no examination by the trial court, and the assignment and
lack of assignment of subsequent attorneys to assist in the PCR need not have
consumed any more hard-pressed criminal justice system resources, once
petitioner refused relief.  Alleging less than competent lawyering at his
sentencing, petitioner filed a PCR complaint in April 2008 demanding
resentencing.  Within two months, petitioner’s then newly assigned PCR
counsel secured the State’s agreement to a new sentencing hearing.[2] 
¶ 28.         Petitioner’s
rejection of this offer—for all of the relief available to him—rendered
continued litigation of his claim frivolous and wasteful, if not moot. 
See In re Unnamed Defendant, 2011 VT 25, ¶ 2, 189 Vt. 585, 15 A.3d 1039 (mem.) (noting that
case becomes moot when, absent actual controversy, court “can no longer grant
effective relief” (quotation omitted)).  No lawyer is obligated to
advocate a frivolous cause.  See Vermont Rule of Professional Conduct 3.1
(prohibiting attorneys from pressing meritless claims).  Presumably in an
abundance of caution for petitioner’s sake, the Defender General was generous
to a fault to even consider extending additional assistance to petitioner after
the relief requested was turned down.  The Defender General’s denial of services,
authorized under 13 V.S.A. § 5233(a)(3), was patently
correct and required no more process.  
¶ 29.         Under
these circumstances it was no denial of any right to leave petitioner to
represent himself, and the withdrawal of counsel and denial of replacement
counsel can be affirmed accordingly.  
¶ 30.         I am
authorized to state that Judge Bent joins this concurrence.

 


 


 


 


 


Associate Justice

 





[1] 
Under 13 V.S.A. § 5233(a)(3), financially eligible
persons are entitled 
 
[to] be
represented in any other postconviction proceeding which may have more than
minimal effect on the length or conditions of detention where the attorney
considers the claims, defenses, and other legal contentions to be warranted by
existing law or by a nonfriviolous argument for the extension, modification or
reversal of existing law or the establishment of new law.  


[2] 
As noted by the trial court, PCR counsel informed petitioner by letter in May
2008 that the State’s Attorney had consented to a new sentencing hearing. 
In his letter to petitioner, PCR counsel advised: “Since the State is offering
you everything substantively you are asking for (a remanded sentencing hearing
based on ineffective assistance of counsel), it would be difficult to explain
to the Court why you might refuse the offer.”  Nevertheless, petitioner
declined to settle for total victory.   



