2014 VT 67


In re Williams (2012-179)
 
2014 VT 67
 
[Filed 11-Jul-2014]
 
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.
 
 

2014 VT 67

 

No. 2012-179

 

In re Eric Williams


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


 


December Term, 2013


 


 


 


 


Alden
  T. Bryan, J., (Ret.), Specially Assigned


 

Allison N. Fulcher of Martin & Associates, Barre, for
Petitioner-Appellant.
 
Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
and Pamela Hall Johnson,
  Deputy State’s Attorney, Burlington, for
Respondent-Appellee.
 
 
PRESENT:    Reiber, C.J., Dooley and
Crawford, JJ., and Morse and Burgess JJ. (Ret.),
                    
Specially Assigned
 
 
¶ 1.            
CRAWFORD, J.  This post-conviction relief (PCR) case arises
from a tragic fire in an apartment house that caused the deaths of three young
children and their grandmother.  Petitioner, a resident in the same
building, pled guilty to four counts of involuntary manslaughter and was
sentenced to serve forty to sixty years in prison.  He was nineteen years
old at the time of the offense. 
¶ 2.            
Petitioner seeks to vacate his conviction on grounds of ineffective
assistance of counsel.  Following a twelve-day trial, the civil division
ruled that although petitioner’s defense attorney provided adequate representation
in connection with his guilty pleas, the assistance he provided to his client
during sentencing fell below minimum standards of representation.  Both
petitioner and the State have appealed the court’s decision.  We affirm
the court’s decision that petitioner failed to demonstrate ineffective
assistance of counsel prior to his guilty plea.  We also affirm the ruling
that his representation during the sentencing phase was inadequate and that he
was prejudiced by his attorney’s failure to provide more than perfunctory
assistance.  We agree with the PCR court that petitioner’s sentence must
be vacated and a new sentencing hearing scheduled. 
¶ 3.            
The fire started at approximately 3:00 a.m. on October 2, 1999 at the
Sarah Marie Apartments in Milton, Vermont.  It was a fast-moving fire that
originated in the first-floor apartment shared by petitioner and his
roommates.  It spread to the exterior wooden staircase which served the
second-floor apartment.  The staircase was destroyed and the upstairs
apartment was cut off.  The upstairs tenant and her three grandchildren
who were staying with her overnight all died.   
¶ 4.            
The police fire investigator concluded that the fire had started in
petitioner’s room in a wastebasket close to his bed.  Petitioner initially
denied any responsibility for the fire.  In the course of a second police
interview, he stated that he caused the fire by lighting paper in his waste
basket.  His statement provided no explanation of why he might have
committed such an act.  Petitioner was arrested at the conclusion of the
interview.  He has been incarcerated since October 4, 1999.  
¶ 5.            
The State originally charged petitioner with four counts of first-degree
murder and four counts of arson causing death.  Petitioner was assigned a
public defender, Eric Selig.  Attorney Selig retained a fire expert who
examined the entire police file on the fire investigation and found no fault
with the investigation or its conclusions.  
¶ 6.            
Attorney Selig also hired a psychologist to evaluate petitioner.
 After conducting a six-hour examination and interview, the psychologist
concluded that petitioner had a relatively low IQ of 86 and limited academic
ability.  He determined that petitioner was competent to stand trial and
was sane at the time of the offense.  There were no indications of
significant mental illness. 
¶ 7.            
In addition to the two expert witnesses, defense counsel took
depositions of numerous witnesses including the investigating officers. 
One of the fact witnesses deposed was Josh Quesnel, who was in petitioner’s
ground-floor apartment the night the fire started.  Mr. Quesnel recalled
in his deposition that shortly after the fire was extinguished, petitioner said
to him that the fire “was all [petitioner’s] fault” and that “[petitioner]
didn’t mean for anything, for any of this to happen.”     
¶ 8.            
In the fall of 2000, defense counsel filed motions to suppress
petitioner’s statements to police and to dismiss the arson charges on the
ground that there was no evidence of the requisite level of intent.  A
hearing on both motions was delayed when Attorney Selig took a new job out of
state.  Public defender Jerry Schwarz entered his appearance for
petitioner in December 2000.  Hearings on the pending motions were
continued until February 2001.  
¶ 9.            
Before the motions were heard, the parties entered into a plea
agreement.  The agreement provided for the amendment of the original
charges to four counts of involuntary manslaughter.  The maximum sentence
allowed was fifty to sixty years to serve.  The defense was free to argue
for a sentence of as little as twenty to sixty years to serve.  In
February 2001, petitioner entered a guilty plea on all four counts.   
¶ 10.        
Sentencing occurred in May 2001 following submission of a pre-sentence
investigation report (PSI).  The PSI recommended a sentence of
forty to sixty years based on the need for punishment.  After hearing
arguments by the prosecutor and defense counsel, as well as testimony from the
family and friends of the victims and from petitioner, the court imposed a
sentence of forty to sixty years in prison.  Petitioner subsequently filed
this PCR petition.  
¶ 11.        
In January 2012, the PCR court issued a detailed decision.  The
court concluded that petitioner had not met his burden of proof on the claim
concerning his representation prior to the guilty plea.  On the issue of
sentencing, however, the court concluded that defense counsel had provided no
more than a perfunctory performance which fell below the standards required of
a criminal defense attorney.  The court found that the shortcomings in
representation were sufficiently serious that they resulted in prejudice to
petitioner.  It vacated the sentence and ordered a new sentencing hearing
for petitioner.  Both sides have appealed the PCR court’s decision.  
¶ 12.        
We apply a deferential standard of review to the decision of the PCR
court.  We review factual findings for clear error and will uphold the
legal conclusions if they are reasonably supported by the findings and the
applicable legal principles.  In re Russo, 2010 VT 16, ¶ 17, 187
Vt. 367, 991 A.2d 1073.  
I.
 Ineffective Assistance Prior to Guilty Plea
¶ 13.        
Petitioner raises three issues concerning his attorney’s performance
during the period leading up to his guilty plea.  First, he contends that
defense counsel should have retained a fire expert to conduct an independent
cause-and-origin investigation.  Second, he contends that the defense
should have filed a motion to dismiss three of the four arson charges on
grounds of multiplicity.  Finally, he contends more generally that defense
counsel should not have advised him to plead guilty.   
A. 
Fire Expert
¶ 14.        
The State completed its fire investigation within a day of the
fire.  Detective Sergeant Hatch concluded that the fire originated in
petitioner’s bedroom, that it was not an electrical fire caused by a short
circuit, and that it started in the area of petitioner’s wastebasket.  In
response, Attorney Selig retained Michael Lane, a fire investigator. 
Attorney Selig located Mr. Lane through a referral from within the public
defender system.  He sent Mr. Lane the Hatch report and photos, videos, depositions,
and other documentation concerning the fire.  In March 2000, Mr. Lane
travelled from his office in Putnam, New York to speak with Attorney Selig in
person.  Mr. Lane told Attorney Selig that he had no criticism of Sergeant
Hatch’s investigation or of his conclusion that the fire originated in
petitioner’s wastebasket.  At the PCR trial, Mr. Selig testified that he
had confidence in Mr. Lane’s expertise and conclusions.  He was reluctant
to hire additional experts because they might “actually help the State’s
case.”    
¶ 15.        
By the time of the PCR trial, a fire investigator with a different view
from Mr. Lane had turned up.  Douglas Carpenter was originally hired by
family members of the victims of the fire to testify in a civil damages case,
and was subsequently retained as an expert witness by petitioner.  Mr.
Carpenter conducted an on-site investigation of the fire in December
2000.  His interpretation of the damage pattern led him to conclude that
the fire was electrical in origin and had started inside the wall, not in
petitioner’s wastebasket.  After completing his assignment in the civil
case, he volunteered to complete a report summarizing his findings which he
sent to PCR counsel.  
¶ 16.        
The PCR court concluded that Attorney Selig’s decision to cease his
search for a fire expert after Mr. Lane offered no criticism of the police
investigation fell within the range of reasonable practice.  The court
noted that there were sound strategic reasons to be cautious about developing expert
testimony which favored the State.  A site visit could have occurred only
with the knowledge of the State and Mr. Lane had already formed an initial
opinion which was unhelpful to the defense.  The court observed that a
defense attorney who has received one adverse opinion does not have a duty to
continue to shop until he locates an expert witness who agrees with his
position.  Finally, although the court found merit in both Mr. Carpenter’s
and Sergeant Hatch’s views, he determined that Sergeant Hatch’s opinion was
more likely correct.  On this record, the trial court found no basis for a
violation of the lawyer’s duty.  
¶ 17.        
We agree with the trial court’s analysis.  Having hired a
competent, experienced expert, a defense lawyer cannot be criticized for
accepting that person’s opinion.  There is no duty to continue to search
for someone who will take the other side.  See, e.g., Marcrum v.
Luebbers, 509 F.3d 489, 511 (8th Cir. 2007) (“Where counsel has obtained
the assistance of a qualified expert . . . and nothing has
happened that should have alerted counsel to any reason why the expert’s advice
was inadequate, counsel has no obligation to shop for a better opinion.”).
 The fact that petitioner eventually found an expert who offered an opinion
more helpful to his position does not demonstrate that defense counsel was
ineffective for failing to obtain similar testimony prior to the guilty
plea.   
B. 
Multiplicity of Charges
¶ 18.        
Petitioner argues that his counsel was ineffective for failing to file a
motion to dismiss three of the four arson charges on multiplicity
grounds.  He contends defense counsel should have argued that because
there was only one act of setting a fire, petitioner could only be charged with
one count of arson.
¶ 19.        
At the time the charges were filed, our leading case on the issue of
multiple charges for a single course of conduct was State v. Senna, 154
Vt. 343, 575 A.2d 200 (1990).  In Senna, a defendant who took his
three victims to the same place at the same time was charged with three counts
of kidnapping under 13 V.S.A. § 2401, which imposed penalties on a “person
who, without legal authority, forcibly or secretly confines or imprisons
another person within this state against his will.”  154 Vt. 343, 346, 575
A.2d 200, 202 (1990).  We held that the defendant was properly charged
with three violations of the statute because “[b]y its plain language, the
statute defines an act of kidnapping by reference to the victim.”  Id.
at 346-47, 575 A.2d at 202.
¶ 20.        
Petitioner was originally charged with four counts of arson causing
death under 13 V.S.A. § 501.  Section 501 provides: “A person who
wilfully and maliciously burns the building of another, or wilfully and
maliciously sets fire to a building owned in whole or in part by himself, by
means of which the life of a person is lost, shall be guilty of murder in the
first degree.”  Like the kidnapping statute at issue in Senna, the
actions specifically prohibited by the statute are defined by reference to the
victim.  A defendant may therefore be charged with multiple counts of
arson causing death where multiple deaths result from the same act of setting a
fire.  Senna was the controlling authority at the time petitioner
was charged.  Thus, defense counsel reasonably concluded that a
multiplicity challenge to the arson counts would not succeed.  Counsel
was not ineffective for failing to raise a meritless argument.  See In
re Kirby, 2012 VT 72, ¶ 12, 192 Vt. 640, 58 A.3d 230 (mem.) (holding
that in light of existing case law at time of defendant’s conviction, it was
reasonable for counsel to doubt the merit of asserting a multiplicity challenge
to multiple charges of possession of child pornography).
¶ 21.        
Our more recent decisions in State v. LaBounty and State v.
Martin do not demonstrate that counsel had a viable argument for dismissing
the multiple counts of arson in this case.  In LaBounty, the
defendant was charged with two counts of grossly negligent operation when he
lost control of his vehicle while speeding, resulting in serious bodily injury
to his two passengers.  We held that when the statute did not explicitly
address whether an operator is guilty of multiple offenses when multiple
injuries occur, the decisive question was “whether the actus reus prohibited by
the statute is the act of driving negligently, which defendant committed only
once, or the act of causing serious injury, which defendant committed twice.”
 2005 VT 124, ¶ 6, 179 Vt. 199, 892 A.2d 203.  Because the
statute defined the crime of grossly negligent operation solely by reference to
the standard of care of the driver, we held that it was plain error for
defendant to be charged and convicted with two violations of the statute.
 Id. ¶ 10.  Similarly, in Martin, we held that the
defendant could not be convicted of two counts of boating while intoxicated
arising from a single accident resulting in two deaths because the act
prohibited by the statute was defined solely by the operation of a vessel while
intoxicated and not by the consequences. 2007 VT 96, ¶ 56, 182 Vt. 377,
944 A.2d 867.  Neither of these decisions displaced our ruling in Senna. 
Both involved statutes that prohibited certain acts without reference to the
consequences of the prohibited acts.  See Martin, 2007 VT 96,
¶ 55 (distinguishing Senna); LaBounty, 2005 VT 124, ¶ 7
(same).  The arson statute at issue here is plainly in a different
category because it explicitly makes reference to the victim, like the
kidnapping statute at issue in Senna.  It was reasonable for
defense counsel to conclude that a multiplicity challenge would be unlikely to
succeed. 
C. 
Advice to Plead Guilty
¶ 22.        
Petitioner claims that defense counsel was ineffective in advising him
to plead guilty without having adequately investigated or otherwise challenged
the State’s arson case.  Ineffective assistance of counsel at the
plea-bargain stage may invalidate a conviction.  In re Plante, 171
Vt. 310, 313, 762 A.2d 873, 876 (2000); see also Von Moltke v. Gillies,
332 U.S 708, 721 (1948) (“Prior to trial an accused is entitled to rely upon
his counsel to make an independent examination of the facts, circumstances,
pleadings and laws involved and then to offer his informed opinion as to what
plea should be entered.”).  Petitioner argues that if counsel had tested
the State’s case more vigorously by hiring an independent fire sciences expert
and filing a motion to dismiss on multiplicity grounds, he would have been in a
stronger negotiating position and could have gotten a better plea bargain. 
¶ 23.        
The PCR court rejected petitioner’s argument. It held that petitioner’s
attorneys adequately prepared the case and therefore Attorney Schwarz was not
ineffective for advising petitioner to plead guilty based on that preparation.
 The court’s conclusion is supported by its findings.  The record
shows that defense counsel devoted significant time and attention to the case
prior to the change of plea.  Attorney Selig conducted numerous
depositions.  He retained the services of a fire investigator and a
psychologist, neither of whom was able to offer information helpful to the
defense.  He filed motions to suppress petitioner’s confession to police
and to dismiss the arson charges.  He kept petitioner informed of
developments in the case.  When he withdrew from the case, he turned over
his materials to Attorney Schwarz, an experienced public defender who worked in
the same office. 
¶ 24.        
Upon taking over the case, Attorney Schwarz reviewed all of the
materials prepared by Attorney Selig.  He believed that the evidence
against petitioner was strong.  Attorney Schwarz and his investigator met
with petitioner in February 2001 to discuss the case and a potential plea
offer.  Attorney Schwarz discussed with petitioner in detail the facts and
the legal issues of the case.  He discussed the possible guilt of a third
party, the likelihood of success of the pending motions, the possibility of a
conviction on the original murder charges, and petitioner’s potential release
if he received less than a mandatory life sentence.  Based on his review
of the case file, Attorney Schwarz recommended that petitioner accept the
State’s offer to plead guilty in exchange for amending the charges to
involuntary manslaughter.  We agree with the PCR court that petitioner has
not demonstrated that counsel failed to sufficiently prepare the case prior to
the plea or failed to provide informed advice about whether to plead guilty.
 
II. 
Sentencing
¶ 25.        
Petitioner’s claim of ineffective assistance of counsel at sentencing
has two elements.  Petitioner bore the burden of proof that his
representation fell short of professional standards and that it is reasonably
probable that his sentence would have been less if he had received appropriate
representation.  In re Kimmick, 2013 VT 43, ¶ 16, 194 Vt. 53,
72 A.3d 337 (citing Strickland v. Washington, 466 U.S. 668, 691-94
(1984)).  
¶ 26.        
The PCR court found that the defense attorney’s efforts at sentencing
were perfunctory and fell short of professional standards of representation.
 It found that counsel failed to conduct a thorough investigation of
petitioner’s background or to prepare for and present an effective sentencing
presentation.  This finding was supported by expert testimony provided by
Attorney Richard Rubin.  In his opinion, counsel’s representation at
sentencing constituted “a gross deviation from the standard of care.”  The
expert called by the State, Attorney Volk, offered minimal support for
counsel’s performance at sentencing.  Attorney Volk testified that “I
would, as I’ve informed you, indicate that there are certainly—and I hesitate
to use the term better ways to have proceeded, but having said that, I am
not—it is not my opinion that the way that he chose to proceed violated either
of the Strickland prongs.”  The PCR court stated that it “did not sense
much confidence” in Attorney Volk’s testimony on this point. 
¶ 27.        
Both Attorney Rubin’s opinion and the decision of the PCR court are
supported by the record.  The sentencing hearing was dominated by the
statements of bereaved family members and friends who described their grief
over the loss of the three children and their grandmother as well as their
desire for the maximum penalty.  Defense counsel called no witnesses who
could describe petitioner in a more favorable light.  Nor did he file a
sentencing memorandum in advance of the hearing that would allow him to present
his arguments for the minimum sentence in a less hostile and
emotionally-charged environment.  Instead, he offered a few remarks about
petitioner’s childhood, essentially repeating the information in the PSI. 
  
¶ 28.        
As the PCR court noted, there is no evidence in the record that counsel
had strategic reasons not to conduct any independent investigation, present
testimony, or prepare a sentencing memorandum.  See Strickland, 466
U.S at 690 (noting that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable”).
 Under these circumstances, we conclude that the PCR court’s finding that
petitioner did not receive adequate assistance of counsel is supported by the
evidence.  We turn now to the second element of petitioner’s claim—proof
of prejudice.  
¶ 29.        
Under Strickland’s second prong, a defendant “must show that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.  A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.”  466 U.S. at 694; see also In re Pernicka, 147 Vt.
180, 183, 513 A.2d 616, 618 (1986).  The great difficulty with proving
actual prejudice to the defendant at sentencing is that it can only be met
through evidence about something which did not occur.  The PCR judge
cannot ask the sentencing judge if the sentence would have been different if he
or she had heard a more effective presentation from the defense.  See,
e.g., Perkins v. LeCureux, 58 F.3d 214, 220-21 (6th Cir. 1995)
(petitioner cannot prove that counsel’s ineffective assistance prejudiced his
defense using testimony of sentencing judge; risk of inaccuracy outweighs
probative value of testimony, and inquiry into judge’s mental processes
undermines judicial immunity, comity, independence and finality of
judgments).  Instead, the PCR court must determine whether there is
sufficient circumstantial evidence to support a finding that there is a
reasonable probability that the weakness in petitioner’s defense altered the
outcome. 
¶ 30.        
In reviewing the PCR court’s decision on the issue of prejudice, we
first consider whether the court applied the correct legal standard.  We
then consider whether the evidence in the record supports the court’s
conclusion that defense counsel’s performance was sufficiently prejudicial to
require resentencing.  
¶ 31.        
The PCR court applied two different standards to this case.  The
PCR court initially found that “counsel’s efforts in this case were so lacking
that prejudice can be presumed.”  It relied on the U.S. Supreme Court’s
ruling in United States v. Cronic, in which the Court held that there
was an exception to the need to demonstrate prejudice resulting from counsel’s
deficient performance in cases where “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.”  466 U.S. 648,
658-59 (1984).  In its subsequent decision on the State’s motion for
reconsideration, the PCR court stood by its earlier ruling that counsel’s
performance was presumptively prejudicial to petitioner.  However, the
court also ruled that petitioner had demonstrated “actual prejudice” and
therefore met the burden of proof on this basis as well.  
¶ 32.        
The PCR court erred by applying the Cronic standard of
presumptive prejudice to this case.  As the U.S. Supreme Court emphasized
in Bell v. Cone, the Cronic exception is a very narrow one and
applies only in cases where counsel completely fails to provide
representation.  535 U.S. 685, 696-97 (2002).  In Bell, the
defense attorney provided minimal assistance in the sentencing phase of a
capital murder case.  He interviewed no witnesses relevant to sentencing,
presented no mitigation testimony from the available witnesses, made no plea
for petitioner’s life, and offered no closing remarks.  Despite these
shortcomings, the Court held that petitioner had not shown that his attorney
“failed to oppose the prosecution throughout the sentencing proceeding as a
whole,” only that he “failed to do so at specific points.”  Id. at
697.  The Court held that in the absence of a complete failure by counsel
to represent the defendant, a claim of ineffective assistance which is based
upon specific attorney errors must meet the Strickland requirement of a
showing of actual prejudice.  Id. at 698.
¶ 33.        
Like the attorney in Bell, petitioner’s counsel did not entirely
fail to represent him at the sentencing proceeding.  While counsel’s
representation fell below the standard required of a reasonable attorney, it
was not “tantamount to non-representation.”  United States v. Theodore,
468 F.3d 52, 57 (1st Cir. 2006).  The shortcomings in counsel’s
performance identified by petitioner are specific failings that are more
appropriately analyzed under the Strickland standard of actual
prejudice.  See id. at 57-58; Scarpa v. Dubois, 38 F.3d 1,
13 (1st Cir. 1994) (noting that “bad lawyering, regardless of how bad,
does not support the per se presumption” (quotation omitted)).  
¶ 34.        
We turn now to the question of whether the PCR court correctly applied
the Strickland standard of prejudice.  The Strickland
decision derived the requirement of a showing of prejudice from the underlying
purpose of the Sixth Amendment guarantee of counsel, which is to ensure that “a
defendant has the assistance necessary to justify reliance on the outcome of
the proceeding.”  466 U.S. at 692.  In defining this standard, the
Court ruled out two alternative standards.  A mere showing that attorney
error had “some conceivable effect on the outcome” is insufficient.  Id.
at 693.  On the other hand, the petitioner “need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case.”  Id.
 The first standard would be met whenever there was an attorney error, and
the second standard places the burden too high since errors may render the
result of a case unreliable even in the absence of proof that they determined
the outcome.  Id. at 693-94.  The Court identified the correct
test for prejudice as “a reasonable probability” of a different outcome.  Id.
at 694.  We have followed the Strickland holding in our own
decisions.  See Pernicka, 147 Vt. at 183, 513 A.2d at 618. 
¶ 35.        
In its decision on the motion for reconsideration, the PCR court
concluded its analysis by deciding that “there may indeed have been actual
prejudice to [petitioner] in the lack of advocacy on the part of his
attorney.”  The court identified several specific factors in support of this
conclusion: (1) since the sentencing judge was given broad discretion under the
plea agreement, it was essential for defense counsel to advocate strongly for
the lower minimum; (2) the plea agreement embodied the recognition of both
sides that petitioner had no criminal intent to cause loss of life; (3) there
was no sentencing memorandum to explain and provide a supporting argument for
the twenty-year minimum; (4) the defense failed to interview available
witnesses and expand upon the statements in the PSI; (5) the sentence was
comparable to a sentence for murder; and (6) without a sentencing memorandum,
there was nothing to support the judge should he wish to consider a minimum
sentence of less than forty years, the amount recommended in the PSI.
 With this “barren record” of attorney performance in mind, the trial
court found that there was sufficient evidence of prejudice to meet the Strickland
requirements.  We review the same evidentiary record in order to determine
whether the evidence at the PCR hearing was sufficient to support the court’s
conclusion.  
¶ 36.        
In reviewing these findings, we start with the essential purposes of the
sentencing process.  This Court has identified four goals of sentencing:
punishment, prevention, rehabilitation, and deterrence.  See State v.
Ingerson, 2004 VT 36, ¶ 13, 176 Vt. 428, 852 A.2d 567 (citing United
States v. Giraldo, 822 F.2d 205, 210 (2d Cir. 1987) (“The proper purposes
of the sentencing of criminal offenders are generally thought to encompass
punishment, prevention, restraint, rehabilitation, deterrence, education, and
retribution.”)); State v. Corliss, 168 Vt. 333, 342, 721 A.2d 438, 445
(1998) (affirming sentencing court’s consideration of traditional common law
factors of punishment, deterrence, and rehabilitation).  
¶ 37.        
 This case presented an unusual problem for sentencing because by
all measures but one the crime would have resulted in a low or moderate
sentence.  Petitioner was young—nineteen years old at the time of the
offense—and had no prior criminal record.  The facts concerning his
background and behavior prior to the offense were positive: a high school
graduate, employed, connected with friends and family, and with vocational
plans.  The amended charges of involuntary manslaughter were general
intent crimes, and there was no claim by the State at sentencing that
petitioner had any specific intent to cause harm to the victims or to others.
 In one respect, however, the crime was horrific.  It resulted in the
deaths of three children and their grandmother—people who scarcely knew
petitioner and had the misfortune of sleeping in the apartment above his. 
Their family’s sense of loss and anger were strongly expressed at the
sentencing hearing. 
¶ 38.        
The task faced by the defense in balancing the loss experienced by the
victims and their families with the relatively low level of criminal
conduct—measured both by petitioner’s lack of prior history and the reduced
level of criminal intent—is present in many cases in which the crime arises
from grossly negligent conduct.  Defendants who are in general law-abiding
people can cause death and great damage through incidents of thoughtlessness,
intoxication, or loss of self-control.  Defense counsel knew before
sentencing that it would be necessary to take time to develop petitioner’s side
of the sentencing issue.  At petitioner’s change-of-plea hearing, he
advised the court that he had several witnesses and anticipated a half-day
hearing, including the state’s presentation.  Yet he failed to follow
through on this at sentencing.
¶ 39.        
Prior to sentencing, petitioner participated in the pre-sentence
investigation which resulted in a PSI report.  The report includes
statements from the victims’ families, a social history of petitioner, and
interviews with petitioners’ relatives, employers, a foster mother, and an
employer, all of whom had favorable things to say about petitioner.  The
summary reviewed the points in petitioner’s favor—his lack of a criminal
record, absence of drug or alcohol use, his graduation from high school as a
foster child, his remorse, his efforts to get people out of the burning
building, and his description by people who knew him “as a good person, a hard
working person, and a person who they would not expect to have committed an
offense such as this.”  It also summarized the desire of the victims’
relatives for a lengthy sentence due to their belief “that a lesser sentence
would not be commensurate with the loss of four lives.”  The PSI
recommended a sentence of forty to sixty years to serve.  
¶ 40.        
The PSI defined the parameters of the ethical dilemma presented by the
sentencing decision.  A good person had committed an offense without
intending harm that had terrible consequences.  There were at least five
people who spoke in favor of petitioner to the PSI investigators.  There
were at least as many people who had experienced grief and bereavement as a
result of his actions.  In the face of this challenge, petitioner’s
attorney did nothing except to appear at sentencing to offer a few commonplace
remarks.
¶ 41.        
The result of defense counsel’s failure to provide testimony about
petitioner’s positive characteristics was that the sentencing hearing was
largely one-sided.  From the opening statement of the prosecutor, through
the statements of the family members, and concluding with the sentencing
judge’s own statement, the only element of the sentencing decision to receive
substantial consideration was retribution.  Each participant, including defense
counsel, presented this issue as the need to measure the value and duration of
the four lives lost against the long period of years to be served by
petitioner.   
¶ 42.        
The prosecutor requested a sentence of fifty to sixty years.  He
explained the minimum period as representing twelve-and-a-half years to serve
for each of the deceased.  He described the intentional aspect of
petitioner’s conduct in setting his wastebasket on fire.  He compared the
years of life denied to the victims with the life remaining to petitioner after
his release from prison.  He argued that the maximum sentence would deter
others from acts of gross negligence.  He concluded by stating that “this
is ultimately a sentence that would punish this man for taking four lives.” 
The prosecutor’s statement fairly stakes out one side of the sentencing
argument.  No one contends that it was improper.  It is a traditional
statement of the retributive purpose of sentences in cases involving death or
grave injury.  
¶ 43.        
This theme that the loss of the victims’ lives requires severe
punishment was echoed in the statements of the family members who were
generally unsatisfied with the maximum penalty in the plea agreement.  Six
family members or family friends spoke.  The first person to speak stated
that he believed “that [petitioner] should never see the light of day
again.”  The second person, a child, stated that “I know [petitioner] is
young.  He deserves more than the max.”  The third stated that “I
really want as many years as possible given to this young man.”  The
fourth and fifth speakers described the family’s suffering.  The sixth
person to speak was the children’s mother.  She stated: 
I wish for [petitioner] that if something
could be done to him that’s not a law in Vermont.  It’s not allowed. 
I know that he’s a young man, but he took away my children and my mother. 
He turned my whole life upside down and my daughter’s and I just ask that you
would consider giving him the max, sixty years or life, because our lives are
ruined . . . I don’t think he should have the right to
fulfill any of his dreams when we can’t and they can’t either. 
These
are understandable comments from people who have suffered greatly.  Like
the prosecutor’s statement, they are located at one extreme of the sentencing
debate.  
¶ 44.        
As we have observed already, the defense offered almost nothing of
substance in petitioner’s defense.  The defense attorney noted that the
PSI offered “a fairly accurate picture of the tragic facts in this case, a good
decent kid commits an unlawful act which results in the unintentional deaths of
four innocent people.”  He reviewed petitioner’s social history and
reputation as “a good and decent kid” who had suffered abuse at the hands of
his step-father.  He identified the “room for both punishment and
rehabilitation” in the sentence and requested the minimum sentence under the
plea agreement.  As the PCR court pointed out, “[t]here was little, if
any, functional difference between the State’s sentencing
presentation and the defense’s.”  
¶ 45.        
Petitioner spoke extremely briefly.  His entire remarks were: 
Yes, Your Honor.  I’d just like to
let you know that because of my stupidity I killed four people.  Kids that
aren’t going to graduate high school or do things that I’ve been able to
do.  I’m very remorseful, and if I could turn back the time to bring these
kids back and bring the grandmother back I would, Your Honor.  I’d do it
in a heartbeat.  I’m just very sorry for my actions.  That’s all,
Your Honor. 
¶ 46.        
The sentencing judge recognized that the family’s loss was terrible and
that there was little he could do to relieve their suffering.  He also
stated: 
On the other hand, we have a defendant
who’s a very young man.  He’s barely more than a boy himself.  He has
no criminal record, and the act was not one of intentional murder, but it was
an intentional act and one that he knew or certainly should have known was very
likely to cause death . . . .  
The
judge stated that it was his job “to try to balance these factors and balance
the interest of society and come up with a sentence that is fair and
reasonable.”  
¶ 47.        
He spoke about the reasons for his sentence.  There were two: 
general deterrence and retribution.  The sentencing judge questioned
whether general deterrence was particularly effective in deterring crimes based
on gross negligence or thoughtless conduct.  He described his philosophy
of punishment in the following terms: 
The other aspect [of the sentence] is
consequence.  I prefer not to think of it as punishment as such, although
certainly that’s an aspect of it, but there’s no getting away from the fact
that four innocent lives were taken.  They were taken through an
intentional act, although it was not the defendant’s intent to kill, but there
must be a consequence for that, and it must be a serious consequence.  It
would demean the seriousness of the offense and the value of the victims’ lives
if the consequence was insufficiently severe frankly.  
As
these statements indicate, the content of the sentencing discussion from the
PSI through the judge’s statement was almost entirely dictated by concerns of
retributive justice.  The critical issue for the author of the PSI, the
prosecutor, the family members, and the judge was the need to offset the loss
of life by the victims with a commensurate loss of years by petitioner. 
¶ 48.        
We agree with the PCR court that the defects in defense counsel’s
performance were sufficient in their seriousness and in their probable effect
on the court to support a finding of actual prejudice.  In reaching its
decision, the PCR court relied on four main factors: the highly unusual gap
between the minimum sentences of twenty and fifty years allowed by the plea
agreement; the need to give the sentencing judge reasons to impose a sentence
at the low end of the permitted range; the need to develop the positive
information about petitioner which appeared in a brief sketch of a few pages in
the PSI; and the need to stand up to the strong emotional feelings present in
the courtroom.  Each of these would be a matter of concern; collectively,
they are fundamental errors sufficient to undermine confidence in the fairness
of the sentencing hearing.  For these reasons, we agree with the PCR court
that the sentence must be vacated and the case set for resentencing.  
¶ 49.        
In order to prevent any possibility of inadvertent prejudice or any
appearance of unfairness to either side, we require that upon remand
resentencing occur before a judge who was not the original sentencing
judge.  State v. Koons, 2011 VT 22, ¶ 16, 189 Vt. 285, 20 A.3d
662; State v. Neale, 145 Vt. 423, 436, 491 A.2d 1025, 1033 (1985); In
re Meunier, 145 Vt. 414, 423, 491 A.2d 1019, 1025 (1985); State v.
Williams, 137 Vt. 360, 365, 406 A.2d 375, 377 (1979).
           
Affirmed. 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 50.        
BURGESS, J. (Ret.), Specially Assigned, dissenting in
part.   I respectfully dissent from the majority’s unfounded
presumption that petitioner was prejudiced by his counsel’s performance at the
sentencing hearing.  Assuming, without agreeing under the circumstances
here, that defense counsel’s advocacy fell short of an effort reasonably
expected,[1]
petitioner failed utterly to demonstrate that, but for counsel’s shortcomings,
there was “a reasonable probability” of a different result.  Strickland
v. Washington, 466 U.S. 668, 694 (1994).  
¶ 51.        
That the majority sua sponte and summarily disqualifies the sentencing
judge upon remand suggests more concern with petitioner’s sentence (not claimed
to be an abuse of discretion, and for which reconsideration “in calm
reflection” under 13 V.S.A. § 7042 was available, State v. Therrien, 140
Vt. 625, 627, 442 A.2d 1299, 1301 (1982), but never sought) than with the
quality of his lawyer’s tactics or advocacy (to which no prejudice can be
attributed).[2] 

¶ 52.        
As noted by the majority, a “reasonable probability is a probability
sufficient to undermine confidence in the outcome.”  In re LaBounty,
2005 VT 6, ¶ 7, 177 Vt. 635, 869 A.2d 120 (mem.) (quotation omitted).  In
the sentencing context, this requires a reasonable probability that petitioner
would have received a different sentence.  Porter v. McCollum, 558
U.S. 30, 41 (2009) (per curiam).  “The likelihood of a different result
must be substantial, not just conceivable.”  Harrington v. Richter,
131 S. Ct 770, 792 (2011) (citing Strickland, 466 U.S. at 693).  It
was for petitioner to declare what about his life and circumstance was
neglected by defense counsel that could have made a difference to the
sentencing court.  See In re Dunbar, 162 Vt. 209, 216 n.*, 647 A.2d
316, 322 n.* (1994) (recognizing that to establish prejudice from counsel’s
deficient performance, petitioner bears “burden of affirmatively showing what
the potential evidence would have been and how it would have produced a
different result”). 
¶ 53.        
In this case, petitioner failed to articulate, and the PCR court failed
to identify, any favorable evidence or balancing portraiture omitted by defense
counsel.  If there was some more pro-social history or a positive light
that might have led to a different sentencing result, petitioner offered
nonesuch.  Indeed, the PCR court recognized that the “defense did manage
to get the mitigating factors in the PSI before the sentencing judge and that
it was likely a complete list.”  Moreover, the PCR court confirmed that
petitioner had not presented evidence “as to precisely what additional material
would have turned up” in further investigation.  The majority does not
contradict what the PCR court established: that regardless of their shared
perception of defense counsel’s shortcomings, the sentencing court was deprived
of nothing that could have made a difference in the outcome.  That defense
counsel’s performance resulted in no actual prejudice to petitioner is beyond
cavil.   
¶ 54.        
Identifying no prejudice in fact, the PCR court resorted, instead, to
presuming prejudice under United States v. Cronic, 466 U.S. 648 (1984),
allowed in instances where defense counsel “entirely fails to subject the
prosecution’s case to meaningful adversarial testing.”  Id. at 659.[3]  This exemption from Strickland’s
required proof of prejudice is, however, extremely narrow and inapposite
here.  As reiterated in Bell v. Cone, 535 U.S. 685, 696 (2002), the
Cronic exception applies only to extreme situations as when defense
counsel is denied altogether, absolutely fails to advocate or is thrust into
circumstances by the trial court that defeat any competent
representation.  Before absolving petitioner of the need to prove his
case, the critical inquiry is not whether his counsel could have done something
more or differently, but whether counsel did nothing at all in his
defense.  Id. at 696-97 (explaining that proof of actual prejudice
could not be avoided under Cronic when petitioner argued not that his
lawyer “failed to oppose the prosecution throughout the sentencing proceeding
as a whole, but that his counsel failed to do so at specific points”).  
¶ 55.        
The lack of performance claimed here—low-keyed advocacy and failure to
develop additional mitigating information—are practically indistinguishable
from similar failings claimed, but still requiring proof of actual prejudice to
justify PCR, in Bell.  Id. at 697-98 (noting that “aspects
of counsel’s performance challenged by respondent—the failure to adduce
mitigating evidence and the waiver of closing argument—are plainly of the same
ilk as other specific attorney errors we have held subject to Strickland’s
performance and prejudice components”).  For petitioner and the PCR court
to prevail in their presumption of prejudice without evidence of same, the
“attorney’s failure must be complete,” as in “entirely” failing to
contest the state’s presentation at sentencing.  Id. at 697
(quotation omitted and emphasis added).   
¶ 56.        
There was no such wholesale failure here.  The majority is
inaccurate in saying that “the defense offered almost nothing of substance in
petitioner’s defense.”  Ante, ¶ 44.  Defense counsel argued to
the sentencing court that mitigating factors in this case outweighed the
aggravating ones, and counsel highlighted all available mitigating
factors.  Counsel emphasized that petitioner was “a good decent kid” who
had committed an unlawful act that resulted in the unintentional deaths of four
innocent people.  He recounted the circumstances of petitioner’s
childhood, explaining that petitioner had been abused by his stepfather and
placed in state custody as a result.   He noted that despite spending
over seven years in state custody, petitioner had no drug, alcohol, or
delinquency problems.  It was pointed out that petitioner graduated from a
technical program and was steadily employed.  Counsel portrayed petitioner
as a foster-care success story who was well-liked by others.  
¶ 57.        
Counsel emphasized petitioner’s youth and the tough road that he had
endured during his nineteen years.  Counsel explained that those who had
worked with petitioner in the foster care system had seen signs of depression,
problems with self-esteem, and problems with impulse control. 
Nonetheless, petitioner had no criminal record of any kind before this
offense.  Since being incarcerated, petitioner was attending classes and
working in the kitchen.  He had no disciplinary violations and was sending
money home to help support his siblings.  
¶ 58.        
Counsel also noted that at the time of the offense, petitioner was
depressed over the breakup with his girlfriend caused by his best friend. 
Counsel added that petitioner took full responsibility for his actions and in
doing so, saved everyone the trauma of a protracted trial.  Petitioner
accepted the fact that, given the agreed-upon 60-year maximum, he would, for
all practical purposes, be under the supervision of the Department of
Corrections for the rest of his life.  Counsel reiterated that petitioner
did not intend to kill anyone, and that he had helped as best he could
to get others out of the burning apartment building.  
¶ 59.        
Finally, counsel pointed to petitioner’s “deep and genuine remorse” for
the pain his actions had caused.  Counsel maintained that all of these
mitigating factors outweighed the aggravating factors in this case,
particularly in light of the fact that the deaths were
unintended.    Counsel posited that the imposition of a
twenty-year minimum—thirty years less than allowed by plea agreement and
recommended by the State—accorded both punishment and rehabilitation, and that
this was not the kind of case that lent itself to deterrence.  Petitioner
also testified at the sentencing hearing, taking responsibility for his actions
and their consequences, and expressing remorse and regret.   
¶ 60.        
This is no record “barren,” as the PCR court erroneously characterized
it, of any proposed justification for a sentence below the State’s fifty year
minimum recommendation.    All of petitioner’s “positive”
attributes were noted in the PSI and by petitioner’s attorney.  The same
positives were known to the court.  The PCR court found this as fact,
recognizing that trial counsel asserted mitigating factors in the PSI before
the sentencing judge and that there was likely nothing to add.  Moreover,
the record reflects that the sentencing court considered defense counsel’s
argument in reaching its decision.  
¶ 61.        
Albeit brief, counsel’s presentation left nothing available
unsaid.  No law obligates counsel to engage in redundancy, or to develop
witnesses with nothing helpful to offer.  If any material information was
omitted by counsel, only petitioner knows so and he offered nothing on that
account.  That a different judge may prefer a different sentence, or a
different attorney might have pursued a different tactic, does not render the
lawyer’s presentation prejudicial or the court’s sentence invalid.  Nor
can I agree with the majority that, absent any evidence of prejudice, the same
tactic somehow amounts to “actual prejudice” per se.  Ante,
¶ 48.       
¶ 62.        
Most telling on this point is the evident inability of petitioner, the
PCR court, and the majority here, to recite anything omitted by counsel that
could have made a difference.  Whatever we think of the sentence, this
shortcoming is fatal to petitioner’s argument.  It is not for the PCR
court or this Court to cancel petitioner’s burden of proof.  See Sullivan
v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987) (stating that, for claims
of prejudice that rest on counsel’s failure to investigate, petitioner must
make “a comprehensive showing as to what the investigation would have
produced,” and focus of inquiry “must be on what information would have been
obtained from such an investigation and whether such information . . . would
have produced a different result” (quotation omitted)); Outten v. State,
720 A.2d 547, 552 (Del. 1998) (recognizing that a defendant “must make specific
allegations of actual prejudice and substantiate them” (quotation omitted)); Conahan
v. State, 118 So. 3d 718, 730-31 (Fla. 2013) (rejecting argument that
counsel was ineffective for failing to adequately investigate and present
mitigation evidence in penalty phase, explaining that petitioner failed to
present any additional mitigation evidence in post-conviction review
proceeding, or identify any experts or witnesses that would have been available
that counsel failed to present).   
¶ 63.        
The facts of Outten are illustrative.  In Outten, as
in this case, the petitioner alleged that counsel was deficient in his
presentation of mitigation evidence during the penalty phase.  The court
found that the petitioner made only conclusory allegations that uncalled
witnesses would have influenced his sentence, but failed to identify those
witnesses or their potential testimony.  “That other witnesses might have
been available, alone, is insufficient to prove ineffective assistance of
counsel,” the court explained, and it refused to “speculate on what testimony
these other witnesses might have presented.”  720 A.2d at 553 (quotation
omitted).  So, too, in the instant case, we cannot fault defense counsel
for failing to “develop the positive information about petitioner,” ante,
¶ 48, without a showing of what the additional positive information was. 
In Outten, the court concluded that the petitioner failed to show what
actual prejudice was suffered from his claim of counsel’s failure to
investigate and present these witnesses.   720 A.2d at 553; see also Page
v. State, 995 A.2d 934, 947-48 (R.I. 2010) (rejecting argument that counsel
was ineffective at sentencing hearing, and finding that defendant failed to
point to any significant mitigating evidence not provided to trial court
through the presentence report and also failed to identify any additional
information that might have been obtained through further investigation). 

¶ 64.        
Petitioner proffers nothing to justify the majority’s free ride.  As
the U.S. Supreme Court makes clear, it “is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.”  Strickland, 466 U.S. at 693.  Rather, petitioner
must show that, but for counsel’s shortcomings, there was a reasonable
probability of a different result.  Id. at 694.  In Strickland,
the Court concluded that the petitioner failed to meet this standard, finding
“[t]he evidence that respondent says his trial counsel should have offered at
the sentencing hearing would barely have altered the sentencing profile
presented to the sentencing judge.”  Id. at 699-700.  We
cannot even go so far in this case, as no missing evidence is identified at
all.  The PCR court’s remand should be reversed in light of undisputed
proof that defense counsel did not roll over and play dead for the prosecution
as required for presumed prejudice under Cronic and Bell, and for
petitioner’s absolute failure to prove any prejudice in fact from counsel’s
conduct of petitioner’s defense.  

 


 


 


 


 


 


 


 


Associate Justice (Ret.),
  Specially Assigned

 
 





[1] 
Adopting petitioner’s expert’s criticism of defense counsel’s performance as
its own, the PCR court focused on counsel’s failure to develop more of a
positive personal history or sentencing memorandum on petitioner’s behalf, and
defense counsel’s lack of “feeling,” “heart,” or “passion” in presenting
essentially the same information in abbreviated form to the sentencing
court.  Neither petitioner’s expert nor the PCR court, however, posited
what such mitigating or flattering information might have been that was not
already known to the sentencing court through the PSI and counsel’s
representations.  The balance of his performance faulted as dispassionate,
then, amounts to little more than faulting defense counsel for lack of
drama.  Whether an infusion of theatrics might have influenced a more lenient
sentence in this particular case defies measurement.  Of course, casting
sympathy on petitioner carried its own danger, given his acknowledged
responsibility for killing three children and their grandmother due to a patent
disregard of an obvious and likely catastrophe.  That such a potentially
quixotic tactic could backfire, particularly in the presence of the surviving
family members and absent any additional articulable sympathetic facts,
arguably posed no less risk than defense counsel’s more humble approach. 
See Strickland, 466 U.S. at 689 (explaining that “[j]udicial scrutiny of
counsel’s performance must be highly deferential” and “every effort [must] be
made to eliminate the distorting effects of hindsight,” and defendant must
overcome the “presumption that, under the circumstances, the challenged action
might be considered sound trial strategy” (quotation omitted)). Thus, Strickland
directs attention to the available “facts” of a case, and to steer clear of
assessing appeals to emotion in determining professional competency.  Id.
at 689-90.
 


[2] 
The cases cited in support of assigning a different judge to avoid “inadvertent
prejudice” at resentencing are quite inapposite.  All are premised on the
original sentencing judge having considered or relied on purported facts or
invalid claims improperly presented.  See State v. Koons, 2011 VT
22, ¶ 16, 189 Vt. 285, 20 A.3d 662 (holding that trial court’s reliance on
undisclosed acquitted conduct was kind of error that might impair integrity of
judicial process and tarnish its reputation for fairness, and thus defendant’s
sentence was vacated and case remanded for resentencing before different judge)
(citing United States v. Craven, 239 F.3d 91, 103 (1st Cir. 2001)
(holding that, where sentencing court improperly relied on undisclosed
information, sentence must be vacated and cause remanded for resentencing
before a different judge “to maintain the perception of impartiality”)
(additional citations omitted)); In re Meunier, 145 Vt. 414, 423, 491
A.2d 1019, 1025 (1985) (finding that prosecutor breached plea agreement by
advocating for particular sentence at sentencing hearing, and matter would be
remanded for resentencing before a different judge “[i]n order to insure no
inadvertent prejudice”); State v. Neale, 145 Vt. 423, 436, 491 A.2d
1025, 1033 (1985) (holding that, where sentencing court improperly relied on
hearsay evidence in imposing sentence, the Court would remand the case for
resentencing before a different judge); State v. Williams, 137 Vt. 360,
365, 406 A.2d 375, 377 (1979) (where improper hearsay evidence presented at
sentencing concerning criminal acts for which defendant was never charged or
convicted, matter reversed and remanded for resentencing before different
judge).  There is no such contaminating influence here, and the original
judge is no less qualified than any judge to impose a sentence informed by
whatever new approach by a new defense counsel is imagined by the majority.


[3]  The majority’s recitation that
counsel’s performance resulted in “actual prejudice,” ante, ¶
48, is just not supported by the PCR court’s decision or by the record. 
Although it opined on reconsideration “that there may indeed have been actual
prejudice” to petitioner “in the lack of advocacy on the part of his attorney,”
no prejudice in fact was found by the PCR court.  The PCR court considered
the lack of a witness list and no sentencing memorandum to be “a barren record”
prejudicial per se, but this was not supported by any evidence
either.  It is undisputed that counsel advocated on behalf of
petitioner—certainly more than the utter nonfeasance necessary to trigger
presumed prejudice, and nothing in the record supports the notion that defense
counsel failed to marshal actual mitigating evidence that could or should have
been before the sentencing court.  The undisputed evidence was that
counsel and the PSI raised whatever mitigating facts there were, and petitioner
pointed to no neglected evidence.  
 



