Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-421

                                         APRIL TERM, 2011

 In re Scott Beyor                                     }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Rutland Unit,
                                                       }    Civil Division
                                                       }
                                                       }    DOCKET NO. 457-6-09 Rdcv

                                                            Trial Judge: Mary Miles Teachout

                          In the above-entitled cause, the Clerk will enter:

        Petitioner appeals the trial court’s denial of his petition for post-conviction relief (PCR).
On appeal, petitioner argues that the court erred in finding that he received effective assistance of
counsel prior to entering a guilty plea and that his plea was not the product of coercion. We
affirm.

        In the underlying criminal case, petitioner was charged with burglary, assault and
robbery, and providing false information to a police officer. The basic facts leading to the arrest
were found by the PCR court as follows. Petitioner went to his girlfriend’s house on October 15,
2007, where he took multiple doses of prescription medication and drank alcohol. Eventually he
began walking home. Because he was cold and hungry, he chose a house at random to enter. He
broke a window in the kitchen of the victim’s home, and then cooked a sandwich and began to
eat it. The victim, an elderly woman, was upstairs in her bedroom sleeping. When she heard
noises downstairs, she locked her bedroom door, barricaded it. Petitioner got a kitchen knife,
went upstairs and forced his way into the room. He brandished the knife and demanded her
purse. The victim gave him her purse and he ran from the house out the front door. The victim
called 911. In her statement to police, she explained that petitioner had demanded her purse
while threatening her with a knife. When police arrived at the scene, they found a window in the
kitchen was broken, the lock on the victim’s bedroom door was broken, a knife was lying by the
front door, and the phone line in the victim’s bedroom had been pulled out of the wall.

        A few hours later, a trooper observed a male hitchhiker, who appeared to be intoxicated.
He approached the man, later identified as petitioner. Petitioner gave a false name to the trooper.
He voluntarily complied with a request to empty his pockets. He produced a woman’s change
purse and various cards, including some with the victim’s name on them. After the trooper
learned of the reported home invasion, petitioner was arrested. Later, after being given Miranda
warnings, petitioner confessed to entering the victim’s home and making a sandwich. Petitioner
also admitted to taking the purse, but insisted that the victim had thrown it at him. Petitioner was
assigned a trial attorney. Two weeks later, the State noticed its intent to depose the victim, and
petitioner’s attorney attended. Trial counsel hired an expert to do a mental health evaluation of
petitioner in hope of pursuing a diminished capacity defense. The resulting report, however,
found petitioner both competent and sane, and counsel decided not to pursue such a defense.
Trial counsel discussed the different options with petitioner regarding going to trial or pleading
guilty. Ultimately, petitioner decided to enter a plea agreement that capped his sentence at
twenty-to-thirty-five years. At the change-of-plea hearing, the court reviewed the elements of
burglary and asked petitioner if he agreed that he had entered an occupied dwelling with the
intent to commit petit larceny. Petitioner answered that he had no intent to steal when he entered
the victim’s house. Petitioner had a short conference with his attorney. Then the judge asked
again if defendant agreed the state could prove a burglary charge, and defendant pled guilty. He
next pled guilty on the other two counts. Following the pleas, petitioner’s trial attorney asked for
time to discuss with petitioner. During this conversation, petitioner agreed that he had entered
intending to make and eat a sandwich but not to steal money. Trial counsel then confirmed to his
satisfaction that this was sufficient under the statute. When the parties returned, the court again
questioned petitioner concerning the elements of the burglary charge and retook petitioner’s plea.
Petitioner agreed that he had committed the crime and that he had discussed the matter with his
attorney and was satisfied with the advice he received.

       At sentencing, three witnesses testified in petitioner’s favor—two aunts and the mental
health expert. The State requested a sentence of twenty-to-thirty-five years, while defendant
argued for three-to-ten years. The court sentenced petitioner to ten-to-twenty-four years.

        Petitioner filed a motion for post-conviction relief, arguing that he had received
ineffective assistance of counsel and that he was coerced into pleading guilty. On the ineffective
assistance claim, petitioner argued that counsel was defective in failing to conduct depositions,
file motions to suppress or dismiss, or argue a defense of diminished capacity. The court held a
hearing on the merits. Petitioner presented the testimony of an expert who opined that counsel’s
performance fell below the accepted standard of care for not taking depositions and filing a
motion to suppress to exclude evidence obtained at the police officer’s initial stop and search on
the side of the road and not to pursue a diminished capacity defense.

        The trial court issued a written order finding in the State’s favor. The court found that the
expert’s opinion was not persuasive because he did not have all of the facts. The court found
that indeed trial counsel had diligently pursued all of these options and rejected them for tenable
reasons. As to the motion to suppress, the court found that trial counsel reasonably concluded,
based on petitioner’s own account of the event, that there was no good-faith basis to take the
trooper’s deposition or challenge the admissibility of the evidence. The court also found that
trial counsel made a reasonable decision not to pursue a diminished capacity defense after the
expert’s report did not support it and to instead introduce the evidence at sentencing to attempt to
mitigate the penalty.

         The court found that counsel did not pressure petitioner into pleading guilty to avoid
annoying the judge. The trial court noted that during the discussions, the trial attorney told
petitioner that “there was a risk . . . 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.” The court found that
counsel’s warning against annoying the judge did not pressure petitioner to forego trial, noting
that petitioner persisted in going to trial despite the warning, but wavered and changed his mind
over the course of several more discussions of factors relating to the trial process. The court
found that counsel discussed all possibilities with petitioner, and when the issue of intent arose
during the plea colloquy, trial counsel diligently pursued the issue. Further, once counsel
confirmed that there was no monetary requirement for petit larceny, the court found that there
was no evidence to indicate that petitioner sought to take his plea back. The court concluded that
there was nothing to indicate that petitioner’s statements during the plea colloquy were coerced
and that his plea of guilty was entered voluntarily. Petitioner appeals.


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        On review of a denial for post-conviction relief, we review the findings of the trial court
for clear error. In re Dunbar, 162 Vt. 209, 211 (1994). We will affirm “[i]f there is any credible
evidence to support the findings, and the conclusions follow from the findings.” Id. The
petitioner has the burden of proving by a preponderance of the evidence that fundamental errors
rendered his conviction defective. Id. at 211-12.

        Petitioner first argues that his trial counsel’s performance was ineffective because he
failed to take depositions, file motions to suppress or dismiss, or pursue a diminished capacity
defense to the charges. To sustain a claim for ineffective assistance of counsel, petitioner must
demonstrate “by a preponderance of the evidence that: (1) his counsel’s performance fell below
an objective standard of performance informed by prevailing professional norms; and (2) there is
a reasonable probability that, but for counsel’s unprofessional errors, the proceedings would have
had a different outcome.” In re Koveos, 2005 VT 28, ¶ 6, 178 Vt. 485 (mem.) (quotation
omitted). “In looking at the evidence, we are not permitted to use hindsight to evaluate counsel’s
conduct; rather, we must look to whether such decisions were within the range of competence
demanded of attorneys in a criminal case at that time.” In re Washington, 2003 VT 98, ¶ 8, 176
Vt. 529 (mem.) (quotation omitted).

       We conclude that the trial court’s finding that counsel’s performance did not fall below
an objective standard of reasonableness is supported by the evidence. As the trial court
explained, counsel explored whether the evidence recovered from the police stop could be
suppressed, but reasonably concluded, based on petitioner’s own description of the event, that
there was no good-faith basis to conduct a deposition of the trooper or file a motion to suppress.
Further, counsel also investigated the possibility of raising diminished capacity, but the expert
evaluation did not support this defense. Without this expert support, counsel made a reasonable
decision not to purse this defense further. See In re Hemingway, 168 Vt. 569, 572 (1998)
(mem.) (holding that counsel rendered effective assistance in choosing not to pursue competence
where expert evaluation had found defendant competent). Therefore, we find no grounds to
disturb the court’s finding that counsel’s decisions were within the range of competence
demanded of attorneys in a criminal case. See In re Mercier, 143 Vt. 23, 31 (1983) (noting that
“[c]ounsel enjoy wide latitude in decisions regarding trial strategy”).

        Petitioner next argues that his guilty plea was not made voluntarily because his trial
attorney coerced him into agreeing to the plea. A fundamental error in the acceptance of a guilty
plea is sufficient to award post-conviction relief. In re Quinn, 174 Vt. 562, 563 (2002) (mem.).
We agree with the trial court that there is no evidence that petitioner’s attorney impermissibly
pressured him into pleading guilty. An attorney’s advice regarding whether or not to enter a plea
and pressure to elect one alternative over another is typically not coercion. Id. at 564. Petitioner
himself testified at the PCR hearing that he was not threatened into making a plea. Counsel’s
statement that going to trial would annoy the judge does not amount to the type of impermissible
pressure on a client to plead guilty that would render the deal involuntary. Cf. id. at 565 (holding
that attorney impermissibly pressured client into pleading guilty where the attorney exerted
undue influence on his client during the plea hearing).

        Furthermore, evidence of “a petitioner’s assertions in open court of voluntariness and
lack of coercion, while not binding on a post-conviction proceeding, are cogent evidence against
later claims to the contrary.” Id. (quotation omitted). In this case, the plea colloquy
demonstrates that petitioner understood the terms of the plea and entered it voluntarily.
Petitioner agreed that he was satisfied with the legal advice he received and that he was entering
the plea voluntarily, absent any threats or promises. In addition, after petitioner expressed doubt
regarding the intent for the burglary charge, he was given an opportunity to speak with his
                                                 3
attorney and the court conducted a second plea colloquy. This confirmed that petitioner was
fully informed of the basis for the charges and accepted the plea voluntarily. Cf. id. at 564-65
(explaining that the petitioner’s assertion during plea colloquy that he was not coerced was
unpersuasive because the undue influence occurred afterwards). While petitioner argues that his
mental state was fragile at the time and therefore he was susceptible to influence, he has offered
no evidence to indicate that he was not mentally capable of understanding the plea process or
agreeing to its terms that day. Thus, we conclude that defendant was not coerced.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Brian L. Burgess, Associate Justice




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