In re Brian Pelletier, No. 234-4-09 Wrcv (Eaton, J., Mar. 13, 2012)

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                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Windsor Unit                                                                                           Docket No. 234-4-09 Wrcv


In re Brian Pelletier


                                   Decision on State’s Motion for Summary Judgment

        Petitioner Brian Pelletier contends that his defense attorney provided ineffective
assistance of counsel after sentencing by failing to advise him of his right to appeal from the
contested sentencing. At issue now is whether the applicable standard of review requires a
showing that petitioner is reasonably likely to prevail on the merits of the appellate issue that he
would raise if given an opportunity to take a direct appeal from the sentencing order.

        The following background facts are relevant to the state’s motion for summary judgment.
Petitioner was arrested in May 2004 following a serious incident of domestic violence and
charged with six offenses including attempted murder. He was represented by defense counsel
Kevin Griffin, Esq., who negotiated a resolution in which petitioner would plead guilty to lesser
charges of attempted manslaughter, unlawful restraint, and unlawful trespass. No agreement was
reached as to the length of the sentence that was imposed. A presentence investigation was
therefore prepared and the matter was set for a contested sentencing.

        At the sentencing hearing, the state recommended an overall sentence of 26 to 28 years
split with 20 years to serve. Attorney Griffin then presented extensive information about
petitioner’s psychological history and childhood history of abuse, and argued for a lesser
sentence that would allow for programming and supervision. After considering this information,
the court sentenced petitioner to 25 to 28 years split with 16 years to serve—a sentence that was
between the recommendations of the two parties and within the lawful range. In explaining the
rationale behind the sentence, the judge made the following statement with respect to her
consideration of petitioner’s arguments relating to his post-traumatic stress disorder:

                      Along the way, [petitioner] had opportunities to try to deal with
                      that terrible childhood, through counseling and the like and for
                      whatever reason [he] was unable to do so. But the fact that it was
                      so long in the past and that [the victims] had no part in it, does sort
                      of lead to a conclusion that it cannot mitigate, as much as Mr.
                      Pelletier would like it to, his conduct on this day in question.

       After the pronouncement of the sentence, the state concedes for purposes of this motion
only that Attorney Griffin did not consult with petitioner regarding the availability of an appeal
from the sentencing order. It is furthermore undisputed that no direct appeal was taken.
        Petitioner then filed for post-conviction review. At that time, attorney Charles Martin,
Esq., reviewed the sentencing transcript and determined that (1) petitioner could present a non-
frivolous argument that the sentencing judge erred by refusing to consider petitioner’s mental-
health history as a mitigating circumstance, (2) proper consideration of the mitigating evidence
might have further lessened petitioner’s sentence even though the sentence imposed was within
the lawful range of sentences, and (3) Attorney Griffin provided ineffective assistance of counsel
by failing to advise petitioner of his right to pursue an appeal on these grounds.

         The state argues that the sentencing judge did consider the mitigating evidence but
simply gave it less weight than petitioner wanted. The state therefore argues that post-conviction
relief should not be granted here because there is no reasonable probability that petitioner would
prevail on the merits of his appellate claim. In opposition, petitioner argues that his claim has
merit, but more importantly, petitioner argues that he does not need to show a reasonable
likelihood of success on the merits of his appeal in order to obtain post-conviction relief. He
argues instead that post-conviction remedies are per se available upon a showing that a defense
attorney failed to advise his client regarding appellate rights.

         Neither party has stated the standard of review correctly. The state’s arguments are
foreclosed by two existing Vermont cases holding that post-conviction courts should not
consider the merits of the petitioner’s appellate claim when determining whether counsel’s
failure to perfect an appeal was of “prejudicial dimension,” but rather that PCR courts should
grant relief “unless an appeal would be patently frivolous and without a prayer of a chance of
success.” In re Savo, 139 Vt. 527, 529 (1981) (per curiam); In re Rebideau, 139 Vt. 530, 530
(1981) (per curiam). On the other hand, petitioner’s cases involving the availability of relief in
these circumstances without any showing of prejudice were expressly overruled by Roe v.
Flores-Ortega, 528 U.S. 470, 478 (2000). The correct standard requires a more-careful review
of the particular facts of the case, as follows.

        “The two-part standard for evaluating an ineffective-assistance-of-counsel claim is
essentially equivalent under the United States and Vermont constitutions.” In re Russo, 2010 VT
16, ¶ 16, 187 Vt. 367 (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). “The first
prong of this test is an inquiry into the reasonable competence of the lawyer as measured by the
prevailing standards in the conduct of the defendant’s case.” Russo, 2010 VT 16, ¶ 16
(quotations omitted) (citing In re Pernicka, 147 Vt. 180, 182–83 (1986)). In making this
assessment, courts must “judge the reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690.
“The second prong of the test evaluates whether, if counsel’s performance did fall below the
objective standard, such failure created a reasonable probability that effective counsel would
have produced a different outcome.” Russo, 2010 VT 16, ¶ 16 (quotations and citations
omitted). “A PCR court making this inquiry must ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have been different absent the errors.”
Id. (quotations omitted).

       In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court of the United States
explained the application of the Strickland standard to claims that a defense attorney failed to
determine his client’s wishes with respect to an appeal. First, the Flores-Ortega court rejected


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the propositions that (1) defense attorneys must discuss the possibility of an appeal with the
defendant in every case, and (2) failure to do so is “per se deficient.” Id. at 478 (abrogating, e.g.,
Lozada v. Deeds, 964 F.2d 956 (9th Cir. 1992)). Although the Flores-Ortega court
acknowledged that the better practice is for defense attorneys to consult with their clients in
every case about the possibility of an appeal, the court declined to elevate this practice to a
constitutional rule on the grounds that the performance inquiry must focus on whether counsel’s
assistance was reasonable in a given case, considering all the circumstances. Id. at 479–80.

         Instead, the Flores-Ortega court held that “counsel has a constitutionally imposed duty to
consult with the defendant about an appeal when there is reason to think either (1) that a rational
defendant would want to appeal (for example, because there are non-frivolous grounds for
appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id. at 480. In making this determination, courts should take into
account all the information that was known to defense counsel at the time, including whether the
conviction followed from a trial or from a guilty plea (“both because a guilty plea reduces the
scope of potentially appealable issues and because such a plea may indicate that the defendant
seeks an end to judicial proceedings”), whether the defendant received the sentence bargained
for, whether the sentence was contested, and whether the plea expressly reserved or waived some
or all of the appeal rights. “Only by considering all relevant factors in a given case can a court
properly determine whether a rational defendant would have desired an appeal or that the
particular defendant sufficiently demonstrated to counsel an interest in an appeal.” See id. at
480–81 (acknowledging that the duty to consult will arise in “the vast majority of cases”).

         If the petitioner shows that counsel had a duty to consult with him about an appeal and
that counsel failed to do so, the petitioner must still show prejudice from counsel’s deficient
performance. Flores-Ortega, 528 U.S. at 484. The specific nature of this showing is that the
petitioner must show “that there is a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have timely appealed.” Id. For the most
part, the showing can be made upon the same evidence that was used when determining whether
counsel had a duty to consult, such as by showing that a reasonable defendant would have
appealed because there was a specific, non-frivolous argument to be made, or by showing that
this particular defendant had expressed a desire to appeal. See id. at 485–86 (explaining that in
theory the two elements of the test do not overlap completely, but that in practice both elements
are shown if the defendant is able to articulate a non-frivolous argument that he would raise on
appeal if his right to direct appeal were reinstated). Hence, application of the federal standard
results in the same bottom line as the aforementioned Vermont cases: a petitioner is entitled to
post-conviction relief under Flores-Ortega and Savo if he establishes (among other possible
variations of the claim) that (1) his counsel failed to consult with him about the possibility of an
appeal, (2) there were non-frivolous arguments that could have been raised on direct appeal, and
(3) there is a reasonable probability that he would have appealed but for counsel’s deficient
failure to consult.

        In this case, therefore, it is unnecessary to consider whether petitioner has a reasonable
likelihood of prevailing on his appellate issue; the proper standard is not merit but rather whether
the appeal issue is “patently frivolous and without a prayer of a chance of success.” Savo, 139



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Vt. at 529. For this reason alone, the state’s motion for summary judgment—which sought a
ruling on the merits of petitioner’s appellate issue—is denied.

        Looking ahead, the court notes that the state has not conceded for purposes of the merits
hearing that Attorney Griffin entirely failed to consult with his client regarding the possibility of
an appeal. It is important to emphasize that if some advice was actually given, then the proper
analysis would measure the effectiveness of the advice actually given rather than whether the
duty to consult applied at all. Zapata v. United States, 193 Fed. Appx. 40, 42–43 (2d Cir. 2006).
But if the evidence adduced at the merits hearing establishes that no advice was given and that
the other circumstances of the case remain the same, the parties can expect the court to determine
that the appellate issue is not “patently frivolous.” See In re Bailey, 2009 VT 122, ¶ 13, 187 Vt.
176.

         Assuming further that petitioner proves his claim of ineffective assistance of counsel, the
court notes that the proper remedy would not be an entirely new sentencing hearing but rather
reinstatement of petitioner’s right to take a direct appeal from the sentencing order. The reason
for this is that the harm resulting from the ineffective assistance is the loss of a chance at an
appellate proceeding; the appropriate remedy therefore is to restore the right of direct appeal, as
this places the defendant in the same position as if he had received constitutionally-sufficient
advice. Campusano v. United States, 442 F.3d 770 (2d Cir. 2006) (Sotomayor, J.); see also Savo,
139 Vt. at 529 (explaining that the proper remedy is restoration of the appellate right). In a
recent Vermont case, the parties achieved this result by stipulation. See State v. Blaine, 2012 VT
2, ¶ 11 (noting that parties agreed to dismiss similar PCR petition in exchange for an agreement
to reinstate petitioner’s right to take a direct appeal from probation-violation dockets). It is true
that other cases have mentioned the possibility of further sentence reconsideration on the part of
the trial judge, see, e.g., Garcia v. United States, 278 F.3d 134, 138 (2d Cir. 2002) (explaining
that reconsideration might be available “if the district court discerns any useful purpose” in doing
so), but the appropriateness of that remedy in this case would have to be measured against
petitioner’s express waiver of the right to seek sentence reconsideration at the trial-court level.

                                             ORDER

          The State of Vermont’s Motion for Summary Judgment (MPR #3), filed July 26, 2011, is
denied.

          Dated at Chelsea, Vermont this ____ day of March, 2012.


                                                      _________________________________
                                                      Harold E. Eaton, Jr.
                                                      Superior Court Judge




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