In Re: Eric Williams, No. S1658-04 CnC (Norton, J., June 2, 2005)

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



IN RE ERIC WILLIAMS



                                            ENTRY
        This matter concerns a postconviction relief proceeding. Petitioner Eric Williams’s
counsel, Mark E. Furlan, has filed a motion to withdraw, stating that Williams has not
raised a meritorious claim for postconviction relief and Attorney Furlan’s review of the
file has revealed no other colorable claims. Williams, in a pro se submission, and the
State both argue that the court should require Furlan to file an Anders brief. See Anders
v. California, 386 U.S. 738, 744–45 (1967).
       Under V.R.C.P. 79.1(f), “[w]hen an attorney has entered an appearance the
attorney shall remain as counsel until the attorney has been granted leave to withdraw by
the court.” As explained in the Reporter’s Notes to the analogous Vermont Rule of
Criminal Procedure,
              [b]oth the civil rule and [V.R.Cr.P. 44.2(c)] authorize the
              court to impose conditions under which the withdrawal will
              be allowed. The requirement of good cause and the ability to
              set terms are designed to reduce the likelihood that defendants
              will find themselves without counsel on the eve of trial, and
              also to prevent last-minute withdrawals from interfering with
              the scheduling of cases for trial.
Reporter’s Notes, V.R.Cr.P. 44.2.
        Here, both Williams and the State argue that the court should impose an Anders
brief requirement before allowing Furlan to withdraw because the Vermont Public
Defender Act confers a right to indigent prisoners to counsel in postconviction relief
proceedings. The Act provides that a
              needy person who is entitled to be represented by an attorney
              . . . is entitled: To be represented in any . . . postconviction
              proceeding which may have more than a 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 nonfrivolous argument
              for the extension, modification, or reversal of existing law or
              the establishment of new law.
13 V.S.A. § 5233(a)(3).
        The Act does not expressly require an Anders brief, and as amended in 2004, it
appears to confer more discretion on counsel to determine whether a petition is
“warranted by existing law” than did the original Act. The original Act, enacted in 1971,
provided that an indigent prisoner had a right to counsel in “post-conviction proceedings
that the attorney or the needy person considers appropriate.” 1971, No. 161 (Adj. Sess.),
§ 6 (emphasis added). The amended language removes “needy person” and “appropriate”
and replaces these portions with a requirement that only the attorney need consider
whether the petition is warranted. 2003, No. 157 (Adj. Sess.), § 10.
       Nevertheless, the Legislature passed this amendment against a background
wherein the Vermont Supreme Court had interpreted the Act to confer upon prisoners in
postconviction relief proceedings essentially the same rights that criminal defendants had
to representation under the U.S. and Vermont constitutions. See, e.g., Fletcher v.
Gorczyk, 159 Vt. 631, 632 (1992) (mem.) (explaining full rights to counsel in habeas
corpus proceeding); In re Morse, 138 Vt. 327, 330 (1980) (explaining rights to
appointment of counsel in postconviction relief proceeding).
        Although the Court had not expressly held that an Anders requirement was
necessary, such a rule was reasonable under the Court’s jurisprudence in this area.
Indeed, only weeks after the Legislature passed the amendment, the Court held that an
attorney’s statement that a petition for postconviction relief lacked merit was inadequate
to satisfy the petitioner’s right to counsel under the Act, where the court granted the
motion and refused to appoint new counsel. In re Gould, 2004 VT 46, ¶¶ 8–9, 13. The
Court also instructed the Criminal Rules Committee to adopt procedures by which trial

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courts should allow withdrawal of counsel in postconviction relief proceedings,1 noting
that several other states have imposed Anders brief requirements upon counsel who wish
to withdraw because a petition lacks merit. Id., ¶ 25 (citing Tazruk v. State, 67 P.3d 687,
693–94 (Alaska Ct. App. 2003) (Coats, C.J., concurring); Johnson v. State, 364 S.E.2d
201, 201 (S.C. 1988)); cf. Commonwealth v. Finley, 550 A.2d 213, 215 (Pa. Super. Ct.
1988) (adopting “no merit” letter procedure by which post-conviction relief counsel may
withdraw); Shatney v. State, 755 A.2d 130, 135 (R.I. 2000) (per curiam) (same).
        The court presumes that the Legislature enacts legislation with the full knowledge
of the jurisprudence on the particular topic. See Greenmoss Builders, Inc. v. Dun &
Bradstreet, Inc., 149 Vt. 365, 370 (1988) (“[A] statutory change in the common law will
be given effect only upon a clear showing of legislative intent to change the common
law.”); 2A C. Dallas Sands, Statutes and Statutory Construction § 50.01, at 268 (3d ed.
rev. 1973) (“[A]ll legislation must be interpreted in the light of the common law and the
scheme of jurisprudence existing at the time of its enactment.”). The court therefore
presumes that the Legislature would have been aware that something akin to an Anders
brief was necessary under Vermont law at the time that it amended the Act in 2004. If the
Legislature wished to do away with such a requirement, it would have done so explicitly.
       Instead, the Legislature merely took the petitioner out of the statutory language
and included language stating that the attorney must find the petition frivolous. The court
does not believe that this change conferred discretion upon appointed counsel to
withdraw at will. Rather, counsel must still provide some basis by which the court can
determine that he or she appropriately found the petition lacking in merit.
       The court is further guided by recent, unpublished decisions by the Vermont
Supreme Court. The Court has instructed that such decisions are not precedent. V.R.A.P.
33.1(c); Town of Calais v. County Rd. Comm’rs, 173 Vt. 620, 625 (2002) (mem.)
(Morse, J., dissenting); see also In re Tariff Filing of Cent. Vt. Pub. Serv. Corp., 172 Vt.
14, 21 n.2 (2001) (holding that unpublished decision “is of limited precedential value”).
Nevertheless, these unpublished decisions at least provide some insight into the Court’s
inclinations with regard to a prisoner’s right to counsel in a postconviction relief
proceeding. See Reporter’s Notes—1999 Amendment, V.R.A.P. 33.1 (“Unpublished


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                                        Unfortunately, such rules have not yet been promulgated.

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opinions of the three-justice panels have some weight as indicative of the views of a
majority of the Court on the issues considered.”).
        In In re Moreno, No. 2004-120 (Vt. Nov. 10, 2004) (unpublished mem.), the Court
reinstated a postconviction relief petition and remanded for further proceedings. The trial
court had granted the State’s summary judgment motion after petitioner failed to respond
to the motion. The petitioner’s counsel had noted in a status conference that he had found
nothing in the criminal trial transcripts to indicate that the petitioner had a viable claim
for ineffective assistance of counsel. The Court held that the petitioner was effectively
deprived of counsel in the proceeding. Id., slip op. at 2. The Court went on to state that
the attorney’s
              oral statement at a status conference that he could not find a
              basis for the petition was insufficient for the superior court to
              assume that the petition was frivolous. At a minimum, [the
              attorney] should have submitted an affidavit (1) specifying
              petitioner’s claims; (2) setting forth any law or argument that
              could conceivably support those claims; and (3) stating that
              counsel did not consider the claims to be warranted by
              existing law or the establishment of new law.
Id. at 3 (citing Anders v. California, 386 U.S. 738, 744–45 (1967)).
      Similarly, in a response to an attorney’s motion to withdraw in a pending post-
conviction relief appeal, Associate Justice Dooley stated that
              [t]o properly assess counsel’s submission, this Court orders
              counsel to supplement his request with an affidavit. The
              affidavit should contain: (1) a specification of petitioner’s
              claims, (2) law or argument that arguably support the claims;
              and (3) a statement that counsel does not consider petitioner’s
              claims to be warranted by existing law or by a nonfrivolous
              argument for the extension, modification, or reversal of
              existing law or the establishment of new law.
Wool v. State, Docket No. 2004-323, slip op. at 1 (Vt. Sept. 9, 2004) (unpublished
mem.). The attorney in Wool had merely stated in his withdrawal motion that “there is no
non-frivolous basis to support petitioner’s claim.” Id.
       Here, the court is faced with a withdrawal motion that merely states that

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“petitioner has not raised a meritorious claim for post-conviction relief, and Attorney
Furlan’s review of the case file has not revealed any other colorable claims.” The court
cannot, from this statement alone, assess whether this case is “warranted by existing law
or by a nonfrivolous argument for the extension, modification, or reversal of existing law
or the establishment of new law.” 13 V.S.A. § 5233(a)(3).
       Accordingly, in order to grant leave for Attorney Furlan to withdraw on the
ground that the petitioner lacks a colorable claim, the court requires 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 nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law.
                                         ORDER
      For the foregoing reasons, Attorney Furlan’s motion to withdraw is DENIED.




      Dated at Burlington, Vermont, June 2, 2005.




                                                          _____________/s/___________
                                                             Richard W. Norton Judge




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