2014 VT 53


In re Allen (2012-474)
 
2014 VT 53
 
[Filed 23-May-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 53

 

No. 2012-474

 

In re Burt Allen


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Chittenden Unit,


 


Civil Division


 


 


 


November Term, 2013


 


 


 


 


Geoffrey
  W. Crawford, J.


 

Devin McLaughlin of Langrock Sperry & Wool, LLP,
Middlebury, for Petitioner-Appellant.
 
Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
and Andrew R. Strauss, Deputy 
  State’s Attorney, Burlington, for Respondent-Appellee.
 
 
PRESENT:   Reiber, C.J., Dooley and Skoglund, JJ., and Arms,
Supr. J. and Burgess, J. (Ret.), 
                     Specially Assigned
 
 
¶ 1.          
SKOGLUND, J.   Petitioner appeals from the trial court’s order
granting summary judgment to the State on his petition for post-conviction
relief (PCR).  He argues that the court applied improper legal standards in
reaching its decision on his ineffective-assistance-of-counsel claim.  We
affirm.
¶ 2.          
Petitioner was originally charged with aggravated sexual assault for
allegedly penetrating his eight-year-old step-granddaughter with his finger.  Petitioner
entered into a plea agreement and pled guilty to lewd and lascivious conduct
with a child.  The amended charge stated that petitioner’s hand had contact
with the victim’s vulva.  The State’s description of the offense, to which petitioner
agreed, was as follows: “On or about November 22, 2007, [petitioner] took his
granddaughter to his workshop and they were going to be playing some games.  He
set her up on a desk and put oil on his hands, some sort of lubricant from his
workshop, and actually touched her vaginal area.”  
¶ 3.          
A presentence investigation report (PSI) was completed prior to
sentencing.  The PSI contained statements referring to petitioner’s digital
penetration of the victim.  Specifically, the PSI included both the victim’s
original statement to police that petitioner had put his finger a “little bit
inside” and petitioner’s admission during police questioning that he touched
and digitally penetrated the victim.  In addition, the PSI reported that petitioner
minimized the seriousness of the event and its impact on the victim.  The
probation officer recommended a sentence of eight-to-fifteen years, all
suspended except eight years.  The PSI stated the following rationale in
support of this recommendation: “[A]fter a thorough discussion considering
several factors, ultimately, the focus continued to revert back to
[petitioner’s] minimization of the harm caused to the victim and her family and
his lack of empathy.”  In his written response to the PSI, petitioner focused
on rebutting the contention that he had minimized his conduct and the impact
that it had on the victim, and he highlighted mitigating factors, such as his
age, health, and remorse.  Petitioner did not object to the mention of
penetration in the PSI.  
¶ 4.          
At the sentencing hearing, the State argued for a sentence of
ten-to-fifteen years to serve based on the nature of the crime, petitioner’s
failure to take responsibility, and his failure to acknowledge that his actions
harmed the victim.  After its closing argument, the following exchange
occurred: 
THE
COURT: There’s . . . several references in [the PSI] and the affidavits and
statements of everybody, to the effect that [petitioner] put his finger into
this child’s vagina. . . .  [D]id I read those correctly, Ms. Hardin [the
attorney for the State]?
 
MS.
HARDIN: The contention was that—well, first of all, [the victim] wouldn’t be
able to testify whether he went inside or not.  The contention was, on the part
of the defense, that [petitioner] was somehow bullied into making that
statement after repeatedly being asked by the police officer. . . .  That would
have entailed motions to suppress and all sorts of motions to dismiss.  And—and
we, in making this plea agreement, decided that we would forego those and—and
not have the child have to come in and testify at a 12(d) hearing and this is
the way we resolved the case.  But yes, in fact . . . the
affidavit was replete and the interview was replete with that.  It was
initially charged as a sexual assault.  
 
THE
COURT: Well, I understood that.  And . . . the plea, obviously,
has limited the potential incarceration. . . .  Title 13 says that
the sentencing court is to consider the nature and circumstances of the crime. 
And the affidavits, submitted by the defendant, and the statements that are
made by the adults who talked to the child later, are . . . a part of this
record.  Okay.  Okay.  
 
MS.
HARDIN: And, Your Honor, just to add, I would say that . . . the use
of lubricant was pretty clear as to what the intent was.  
 
¶ 5.          
Petitioner’s trial counsel argued for a sentence of one-to-five years,
all suspended but one year, but did not address the penetration issue.  In
response, the State argued only that petitioner’s allocution further
illustrated his lack of empathy for the victim.  
¶ 6.          
In handing down its sentence, the sentencing court stated at the outset
that it found the victim’s description of the offense to be reliable and it
recounted her version of events, including penetration.  The court then stated
the basis for its sentence:
[Petitioner],
in his interviews, has minimized what he did.  He says that the incident
probably had no impact on the child, unless people would tell her otherwise. 
Words can’t describe how serious an offense this is, because of the betrayal of
this innocent child.  
 
Much
of the defense arguments [have] gone to the point of saying well, this is only
one incident. . . .  [I]t’s one incident, but it’s an incident that
has caused so much damage that a severe sentence must be imposed.  This is a
horrible offense.  
 
The
common law says I must consider general deterrence, specific deterrence,
rehabilitation, and punishment.  Contrary to what [petitioner] has represented
to this Court, his act will have a dreadful impact on this child.  I don’t wish
it, but I’ve been in this business many, many years and I’m sorry to say that
the prognosis is difficult for this child.  The statements that I heard in
Court here from the parents show that the bad impact is already being felt by
this little girl.  I’ve dealt with many people as adults who have been damaged
in this way as children and the consequences of this act cannot be
exaggerated.  
 
When
punishment is imposed by a court in Vermont, it must reflect the harm that has
been done.  The harm that is done here is almost beyond calculation.  And this
was not an impulsive act, this was a deliberate act that was designed and
executed in several steps; the towel, the lubricant, were waiting for this
eight-year-old.  
 
¶ 7.          
The court sentenced petitioner to eight-to-fifteen years to serve, and
stated that “[petitioner] is immediately in custody.”  According to
petitioner’s trial attorney, petitioner was taken into custody before the end
of the sentencing hearing, and the attorney was required to ask that petitioner
remain in court until his sentencing hearing concluded.  Petitioner’s trial
attorney also asserted that the sentencing judge became “beet red” as he spoke
and was “clearly worked up and agitated.”  According to the attorney, the judge
“was hunched over and leaned forward when he spoke and saliva was literally
coming out of his mouth as he spoke.”  
¶ 8.          
After sentence was imposed, petitioner’s attorney objected that “[t]his
was a plea to [a charge of lewd and lascivious conduct with a child] and the
court’s conclusions are clearly beyond the offense conduct relative to [the]
alleged penetration.”  He also asserted that the allegations of penetration
“were never attested and were never probed” and that the State had conceded
that the victim would not be able to substantiate penetration.  The sentencing
court responded: 
I
don’t think that’s true at all. . . .  I think that what Ms. Hardin said
is something I’ve heard repeatedly.  The State chose not to put this child
through a trial so that there could be an aggravated sexual assault
conviction.  They chose to spare her that.  And . . . the parties negotiated
the settlement, which, frankly, was less than [petitioner] would have received
if the State had chosen to put this child through such an ordeal.    
 
¶ 9.          
In his direct appeal, petitioner argued that the trial court erred as a
matter of law by sentencing him based on digital penetration when this was a
disputed issue, no evidence was presented concerning penetration at sentencing,
and the State admitted that it could not prove this fact.  State v. Allen,
2010 VT 47, ¶ 6, 188 Vt. 559, 1 A.3d 1003 (mem.).  
¶ 10.      
In considering these arguments, we explained that a sentencing court has
discretion “to consider a broad range of relevant information including the
particular facts of the offense, even if such facts are not explicitly an
element of the charge.”  Id. ¶ 7 (citing State v. Thompson, 150
Vt. 640, 645, 556 A.2d 95, 99 (1989) (holding that the court could consider
defendant’s use of force in sexual assault, even though it was not an element
of the offense, “because it shed light on the nature of the assault and defendant’s
proclivities, and therefore assisted the judge in determining an appropriate
sentence”)).  We added that, “under Vermont Rule of Criminal Procedure 32, the
sentencing court may consider information from a variety of sources including
the PSI.”  Id.  We emphasized that the rules set forth a specific process
for objecting to facts set forth in a PSI.  
¶ 11.      
At the outset, we rejected petitioner’s assertion that he was not
required to object to the mention of penetration in the PSI because the State
had admitted that it could not prove penetration.  Id. ¶ 9.  We found
no such admission.  We further concluded that because petitioner did not challenge
the reliability of the penetration evidence prior to being sentenced, he had
waived any objection to the court’s use of this evidence on appeal.  Id. ¶ 13.
¶ 12.      
Petitioner then filed the instant PCR petition, arguing that his trial
counsel was ineffective for failing to object to the allegation of penetration
in the PSI, and that, but for this error, a reasonable probability existed that
he would have received a lesser sentence.  The State moved for summary
judgment, asserting that regardless of whether petitioner could establish
deficient performance by counsel, he could not establish that the sentencing
court relied on the finding of penetration in reaching its sentence, and thus,
he could not show prejudice.  Petitioner opposed the motion and filed a
cross-motion for summary judgment.  
¶ 13.      
The court granted summary judgment to the State.  As the court
explained, to establish his claim, petitioner needed to show by a preponderance
of the evidence that defense counsel’s performance “fell below an objective
standard of reasonableness informed by prevailing professional norms.”  In
re Combs, 2011 VT 75, ¶ 9, 190 Vt. 559, 27 A.3d 318 (mem.) (quotation
omitted).  If he met this first burden, petitioner needed to further show that “counsel’s
performance prejudiced the defense by demonstrating ‘a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ”  Id. (quoting Strickland v. Washington,
466 U.S. 668, 694 (1984)) (additional citations omitted).  This two-part test “is
essentially equivalent under the United States and Vermont constitutions.”  Id.
¶ 14.      
For summary judgment purposes, the court found that petitioner made out
a prima facie case that counsel’s performance fell below an objective standard
of reasonableness.  As to the second element, however, the court concluded that
petitioner could not show a reasonable probability that he would have received
a lesser sentence had defense counsel objected to the allegations of
penetration in the PSI.  The PCR court explained that the bulk of the argument
from the parties and the court’s explanation of the basis for its sentence
contained no mention of penetration.  While the court described the crime as
“serious” and “horrible,” the court’s stated reason for that description was
that the crime was a betrayal of an innocent child.  The court also mentioned
petitioner’s failure to acknowledge the harm to the victim and the deliberate
nature of his conduct.  To the extent that the court imposed a harsh sentence,
its stated reasons for doing so had nothing to do with penetration, and the
sentence was less than the ten-to-fifteen years that the State could seek under
the terms of the plea agreement.  
¶ 15.      
The PCR court found that the sentencing court was undoubtedly aware of
the statements in the PSI regarding penetration.  The judge asked about this
issue at the time of sentencing and adopted penetration in its findings of
fact.  The court concluded, however, that petitioner could not show by a “preponderance
of the evidence” that the court would have imposed a lesser sentence if it had
not considered those statements.  The court found no basis for petitioner’s
suggestion that the sentencing court was so offended by the penetration
allegations that it ignored potentially mitigating evidence.  As this Court
noted in petitioner’s direct appeal, the sentencing court “adequately
considered all of the relevant factors in this case.”  Allen, 2010 VT
47, ¶ 14.  The PCR court concluded that, absent any suggestion of penetration,
the sentencing court would have been within its discretion to impose the
sentence it did, and the court’s specific explanation of the basis for its
sentence would support the sentence even without consideration of the
statements in the PSI relating to penetration.  
¶ 16.      
The PCR court also rejected petitioner’s contention that the sentencing
court’s statement that “[petitioner] is immediately in custody” proved that the
court was prejudiced by the penetration issue.  The sentencing court made this
statement at the conclusion of its remarks about sentencing, following the
actual imposition of the eight-to-fifteen-year to-serve sentence.  The
transcript reflects that counsel told petitioner, apparently as an aside, to
“hold on a second,” and that petitioner “needed to see this or hear this.”  Defense
counsel then raised several objections about the court’s sentencing decision,
which the court rejected.  Finally, defense counsel stated that he understood
the court had ruled that petitioner’s sentence would begin immediately and he
asked the court to allow petitioner thirty days to put his affairs in order before
beginning his sentence.  To this request, the court replied: “Okay.  That
request is denied.  He’s in custody.”  The court then stated that defense
counsel should communicate with the Department of Corrections about any medical
needs that petitioner had, and the court offered its assistance in getting
petitioner his medication.  At that point, the hearing concluded.  
¶ 17.      
The PCR court noted that it would be erroneous for a sentencing court to
order a defendant who has not been disruptive to the proceedings and who had
not voluntarily absented himself to be removed from his sentencing hearing
before the proceeding had concluded.  However, the court found that it was not
entirely clear from the record that that is what happened.  Even assuming that
petitioner was in the process of being removed from the courtroom before
defense counsel objected, there was no indication in the record or in defense
counsel’s affidavit that the sentencing judge had ordered that action.  
¶ 18.      
The court also rejected the argument that the sentencing judge’s
appearance and demeanor could be employed to infer that the sentence was harsh
because of the issue of penetration.  It reasoned that the conduct to which
petitioner admitted in pleading to the lewd-and-lascivious-conduct-with-a-child
charge, which was properly before the judge at sentencing, could reasonably be
expected to cause a strong expression of condemnation.  It found that the
sentencing judge’s “beet red” complexion and evidence of anger could not be
traced to a single aspect of the crime.  It stated that an experienced judge,
sitting on a felony case, could be expected to be moved and angered by
petitioner’s conduct.  Thus, because petitioner could not meet the second
element of his ineffective-assistance-of-counsel claim, the court granted
summary judgment to the State.  This appeal followed.  
¶ 19.      
“We review orders for summary judgment de novo using the same standard
as the trial court.”  Campbell v. Stafford, 2011 VT 11, ¶ 10, 189
Vt. 567, 15 A.3d 126 (mem.).  Summary judgment is appropriate when there are no
genuine issues of material fact, and any party is entitled to judgment as a matter
of law.  V.R.C.P. 56(a).  The nonmoving party is entitled to “the benefit of
all reasonable doubts and inferences.”  Stafford, 2011 VT 11, ¶ 10 (quotation
omitted).  
¶ 20.      
Petitioner first argues that the court applied the wrong legal standard
in evaluating his ineffective-assistance-of-counsel claim because it stated in
one part of its decision that petitioner could not show, by a preponderance of
the evidence, that the court would have imposed a lesser sentence if it had not
considered statements about penetration.  Cf. Strickland, 466 U.S. at
693 (recognizing that to demonstrate prejudice, petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” and “[a]
reasonable probability is a probability sufficient to undermine confidence in
the outcome”).  This appears to have been a mere misstatement, and harmless
error, as the court cited the correct standard numerous times in its
decision.    
¶ 21.      
We thus turn to petitioner’s argument that the court failed to give him
“the benefit of all reasonable doubts and inferences” in reaching its decision
and that he is entitled to an evidentiary hearing on the question of whether he
suffered prejudice from counsel’s alleged unprofessional errors.  According to
petitioner, the sentencing court’s focus on the issue of penetration clearly
supported a reasonable inference that the court relied on this fact in
determining an appropriate sentence.  Petitioner also asserts that the PCR
court resolved disputed issues of fact.  Petitioner points to the sentencing
court’s statement that “[petitioner] is immediately in custody,” which he argues
demonstrated the court’s anger with petitioner that was linked to the judge’s
belief that petitioner had digitally penetrated the victim.  Petitioner argues
that the PCR court improperly dismissed this allegation by finding it unclear
from the record that this is what happened, and finding that there was no indication
that the sentencing court had ordered such action.  
¶ 22.      
Petitioner also points to the PCR court’s rejection of his argument that
the sentencing judge’s appearance and demeanor showed that he was treating the
crime as a sexual assault rather than as lewd and lascivious conduct. 
Petitioner asserts that the court could not reject this inference on summary
judgment.[1] 
If the summary judgment standard is properly applied, petitioner continues, he
should be entitled to a hearing on the question of whether he suffered
prejudice due to counsel’s alleged unprofessional errors.  
¶ 23.      
We find these arguments unpersuasive, and we reject petitioner’s
assertion that these are “reasonable” inferences that can be drawn from the
undisputed facts.  We conclude, as a matter of law, that there is no reasonable
probability that, but for counsel’s alleged unprofessional errors, the result
of the sentencing proceeding would have been different.  As we have explained,
a “reasonable probability is a probability sufficient to undermine confidence
in the outcome.”  In re LaBounty, 2005 VT 6, ¶ 7, 869 A.2d 120, 177 Vt.
635 (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).  In
assessing prejudice for purposes of an ineffective-assistance-of-counsel claim,
“[t]he likelihood of a different result must be substantial, not just
conceivable.”  Harrington v. Richter, 131 S. Ct 770, 792 (2011).  
¶ 24.      
As set forth above, the issue of penetration did not form the basis of
the sentencing recommendation found in the PSI, the State did not rely on
penetration to argue for a stricter sentence than that recommended in the PSI,
and the court did not cite penetration as a basis for the sentence it imposed. 
Essentially, the court adopted the recommendation in the PSI, and expressed
similar reasons for the sentence as those advanced by the probation officer.  The
court cited petitioner’s minimization of the damaging effect his actions were
likely to have on the victim, his betrayal of an innocent child, and the
deliberate nature of his actions.  The sentence it imposed was less than that
advocated by the State, and less than what was allowed under the terms of the
plea agreement.  
¶ 25.      
This undisputed evidence stands in stark contrast to the slight facts
identified and relied upon by petitioner.  Of course, as the PCR court
observed, the only person who knows for sure what motivated the court’s
decision is the trial judge himself and he cannot be asked.  In re Wilkinson,
165 Vt. 183, 186-87, 678 A.2d 1257, 1259-60 (1996) (recognizing “firmly
established rule” that judge “may not be asked to testify about his mental
processes in reaching a judicial decision” (quotation omitted)).  Nonetheless,
it is not reasonable to infer, given the evidence in the record, that simply
because the court mentioned penetration in its recitation of the facts, it must
have imposed a harsher sentence based on such finding.  Such an interpretation
is belied by the court’s recitation of the factors that it did consider in
imposing sentence.  The court expressly found petitioner’s actions to be
serious and deserving of punishment, not because petitioner did or did not
insert his finger “a little bit” into his step-granddaughter’s vagina, but
because he deliberately betrayed an innocent child and caused incalculable harm
to the victim.  Petitioner fails to show that, absent evidence of penetration,
there was a substantial likelihood of a different result.
¶ 26.      
We reach a similar conclusion as to the remaining facts cited by
petitioner.  It is not reasonable to infer on this record that the court was so
angry with petitioner based on the fact that he had digitally penetrated the
victim that he ordered petitioner into custody prior to the conclusion of the
hearing.  It is not clear from the transcript of the sentencing hearing that
anyone attempted to remove petitioner from the courtroom, or that the court
ordered such action.  The reasonable construction of the record is that the
sentencing court simply ordered petitioner to begin his sentence forthwith. 
This is reflected in defense counsel’s statement that he understood the court
to have ruled that the sentence would begin immediately, and further evidenced
by the court’s denial of counsel’s request to allow petitioner thirty days
before commencing his sentence.  There is no rational connection to be drawn
between the “immediate” execution of sentence and any evidence about
penetration.  Reaching this conclusion does not require us to resolve disputed
questions of fact.  The record simply does not support petitioner’s claim.  
¶ 27.      
Finally, the fact that the judge was upset while pronouncing the
sentence does not lead to a reasonable inference that he must have been upset
due to the fact that petitioner inserted his finger in the victim’s vagina, and
further that, because he was so upset, he imposed a harsher sentence than he
otherwise would have done.  Petitioner offers mere speculation upon speculation. 
See Richards v. Nowicki, 172 Vt. 142, 150, 772 A.2d 510, 517 (2001)
(recognizing that opponent of summary judgment cannot rely upon conjecture or
speculation).  Any connection between the judge’s demeanor, evidence of
penetration, and the sentence imposed is far too weak to demonstrate the
requisite prejudice.  Accepting defense counsel’s description of the judge as
accurate, the reasonable inference is that the judge was upset for the reasons
identified in his sentencing decision—petitioner’s betrayal of an innocent
child and petitioner’s refusal to accept that the victim would suffer any
consequences from his actions.  Petitioner fails to establish a reasonable
probability that he would have received a lesser sentence but for counsel’s
unprofessional errors, and summary judgment was properly granted to the State. 

Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice
 

 
¶ 28.      
DOOLEY, J., dissenting.   This is a summary judgment proceeding,
but the PCR court did not treat it as such.  In particular, in deciding the
prejudice question as a matter of law, the court ignored perhaps the most
fundamental principle of the summary judgment standard: that the trial
court must view the facts most favorably to the nonmoving party and afford that
party—in this case petitioner—the benefit of all reasonable doubts and
inferences.  Here, the PCR court did exactly the opposite by viewing the facts
favorably to the State and resolving all inferences and reasonable doubts in
its favor.  If the court had applied the correct standard, it would have been
compelled to deny the State’s motion for the following reason.  Based on the
record before us, a reasonable judge, viewing the evidence and all inferences
favorably to petitioner, could conclude that petitioner met his burden of
showing a reasonable likelihood that his sentence would have been different had
his attorney not engaged in what we must presume to be ineffective assistance
of counsel.[2] 
For this reason, the case should be remanded for an evidentiary hearing.  Accordingly,
I respectfully dissent.
¶ 29.      
The PCR court did not state the summary judgment standard in rendering
its decision, but that standard is well established.  Summary judgment is
authorized under Vermont Rule of Civil Procedure 56(a) when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”[3] 
From the inception of the rule, courts, including this Court, have uniformly
recognized that “the party opposing the summary judgment motion is to be given
the benefit of all reasonable doubts and inferences in determining whether a
genuine issue exists.”  Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d
1338, 1389 (1981) (citing 10 C. Wright & A. Miller, Federal Practice and
Procedure § 2727, at 526-28 (1973)), overruled on other grounds by Soucy v.
Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983); see United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the
inferences to be drawn from the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion.”).  We have recently
reiterated this principle in the context of a post-conviction-relief (PCR) case
involving a claim of ineffective assistance of counsel.  See In re Lowry,
2013 VT 85, ¶¶ 9-10, ___ Vt. ___, 84 A.3d 816 (reversing grant of summary
judgment because PCR court accepted unsupported inference that petitioner
directed allegedly ineffective trial strategy); see also O’Brien v. Synnott,
2013 VT 33, ¶ 14, 193 Vt. 546, 72 A.3d 331 (reversing grant of summary judgment
on battery claim because it was dependent upon inferences unfavorable to
nonmoving party).
¶ 30.      
As explained in a leading treatise:
The way in which [the summary judgment]
test is applied at the appellate level is designed to give the party who
defended [against] the motion the benefit of any doubt as to the propriety of
granting summary judgment. . . .  The message [from the U.S. Supreme Court] is
clear; the party who defended against the motion for summary judgment will have
the advantage of the court’s reading the record in the light most favorable to
him, will have his allegations taken as true, and will receive the benefit of
the doubt when his assertions conflict with those of the movant.
10A C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure § 2716, at 274-77 (1998). “In sum, summary
judgment will be granted only in clear cases.”  Id. § 2725, at 428-29;
cf. Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48, 582 A.2d 123, 125
(1990) (reversing summary judgment because, although basic facts were clear and
undisputed, dispute did “not depend alone upon the specified facts found but
also upon the reasonable inferences to be drawn from them” (quotation omitted)).
¶ 31.      
Thus, if the evidence presented on a motion for summary judgment “is
subject to conflicting interpretations, or reasonable people might differ as to
its significance, summary judgment is improper.”  10A Wright, Miller, &
Kane, supra, § 2725, at 433-37 (citing federal and state cases); see Crawford
v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 277
n.2 (2009) (rejecting argument that plaintiff’s undisputed responses to sexual
advances suggested consent to those advances on ground that all reasonable
inferences had to be viewed favorably to plaintiff at summary judgment stage). 
“Even where there is no dispute as to demonstrable historical facts, summary
judgment cannot be granted if differing inferences can be drawn from those
undisputed historical facts sufficient to create a material dispute of fact.”  Macy
v. Trans World Airlines, Inc., 381 F. Supp. 142, 145 (D. Md. 1974); see
also Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296
(11th Cir. 1983) (“Summary judgment may be inappropriate even where the parties
agree on the basic facts, but disagree about the factual inferences that should
be drawn from these facts.”); Chenette v. Trs. of Iowa Coll., Grinnell, Iowa,
431 F.2d 49, 53 (8th Cir. 1970) (“Evaluative judgment between two rationally
possible conclusions from facts cannot be engaged in on summary judgment.”);
cf. Empire Elecs. Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962)
(“Where only one inference could reasonably be drawn from the undisputed
evidentiary facts, then summary judgment would be proper.”).
¶ 32.      
Moreover, the trial court “has no discretion to enlarge its power to
grant summary judgment beyond the limits prescribed by the rule.”  10A Wright,
Miller, & Kane, supra, § 2728, at 517.  “[S]ummary judgment cannot
be granted merely because the court believes that the movant will prevail if
the action is tried on the merits.”  Id. § 2728, at 518-23.  The court’s
duty at the summary judgment state is to determine whether a genuine dispute
remains for trial—where the court can weigh the evidence.  Id. § 2728,
at 524; see Vt. Envtl. Bd. v. Chickering, 155 Vt. 308, 319, 583 A.2d
607, 613-14 (1990) (“Summary judgment is not a substitute for a determination
on the merits, so long as evidence has been presented which creates an issue of
material fact, no matter what view the court may take of the relative weight of
that evidence.”).  Once the court determines that there is a triable issue,
“the inquiry is at an end and summary judgment must be denied.”  10A Wright,
Miller, & Kane, supra, § 2728, at 524.
¶ 33.      
Plainly, the PCR court did not adhere to this standard here.  To the
contrary, the court weighed all reasonable doubts and inferences in favor of
the State in granting the State’s motion for summary judgment on the issue of
whether the facts supported a finding of prejudice.  The majority appears to
accept the above standard but states that “it is not reasonable to infer, given
the evidence in the record, that simply because the [sentencing] court
mentioned penetration in its recitation of the facts, it must have imposed a harsher
sentence based on such finding.”  Ante, ¶ 25.[4] 
This is a gross understatement of what occurred at the sentencing hearing on
the question of penetration.
¶ 34.      
After the completion of preliminary matters and the prosecutor’s
statement, penetration was the first and only subject raised by the sentencing
court.  The court noted several references to penetration in the PSI report and
asked the prosecutor if they were accurate.  The prosecutor responded, after
noting that the child “wouldn’t be able to testify whether [defendant] went
inside or not,” that “the affidavit was replete and the interview was replete
with that.  It was initially charged as a sexual assault.”  The court responded
as follows:
Well, I understood that.  And—and the
plea, obviously, has limited the potential incarceration. . . .  Title 13 says
that the sentencing court is to consider the nature and circumstances of the
crime.  And the statements that are made by the adults who talked to the child
later, are—are part of this record.
The prosecutor then added that
“the use of the lubricant was pretty clear as to what the intent was,” to which
the court replied: “Oh, all right.  Well, you know, this is your point to argue
and I’ll—I’ll certainly consider that.”  The court then asked defense counsel
to proceed with his statement.
¶ 35.      
In sum, the only subject on which the court questioned the prosecutor
was penetration.  When the prosecutor assured the court that there was plenty
of evidence to support a finding of penetration, as indicated in the PSI
report, the court noted that although the plea agreement limited the potential
incarceration, it was authorized to consider “the nature and circumstances of
the crime.”  Then, after confirming that the evidence on penetration was part
of the record through affidavits and statements of adults who spoke to the
child, the court indicated that it would consider it.
¶ 36.      
This was far more than a mere mention of penetration in a recitation of
facts, but there’s more.  After defense counsel gave his statement and the
court recused itself to deliberate, it returned to the courtroom and
immediately stated that after “reviewing the presentence investigation and the
defendant’s comments, the Court concludes that the description of the offense
given by the child is reliable,”—including that “[h]is finger, as the child
described it, was a little bit inside, but wasn’t in that far.”  The court then
went on to pronounce the sentence, noting the seriousness of the offense, the
betrayal of the child, defendant’s failure to recognize the harm done, and
other factors.  The court’s apparent reliance on factors other than penetration
does not demonstrate, however, that it did not rely upon the fact of
penetration to enhance the sentence.  See, e.g., Welch v. Lane, 738 F.2d
863, 867 (7th Cir. 1984) (holding that sentencing court’s reliance on other
allowable factors did not cure its reliance on inaccurate information); People
v. Barnes, 875 N.Y.S.2d 545, 547 (App. Div. 2009) (stating that defendant
need not establish that court enhanced sentence based “solely” on improper
information, but rather only that court took improper information into account
in making its determination).
¶ 37.      
Without question, based on this record, a PCR judge could reasonably
infer that the sentencing court relied at least in part on the accuracy of the
assertions of penetration to impose a harsher sentence on petitioner.  Indeed,
that is exactly what defense counsel believed occurred.  As soon as the court
finished pronouncing its sentence, defense counsel objected to the court
sentencing defendant based on the State’s claim that it could prove
penetration.  Defense counsel noted that the allegations of penetration were
never attested or probed and that the prosecutor had candidly admitted that the
child would not be able to substantiate penetration.  Rather than stating that
the issue of penetration was not a significant consideration in its sentencing
decision, the court responded, wrongly, that the prosecutor had only stated
that it did not want to put the child through a trial.  Again, a judge could
reasonably infer that, after confirming the accuracy of the penetration
statements in the PSI report, the sentencing court concluded that those
statements could be relied upon in enhancing petitioner’s sentence.  
¶ 38.      
Indeed, courts have found a reasonable likelihood of a different outcome
on comparable, or even lesser, grounds.  See State v. Cox, 147 Vt. 421,
426, 519 A.2d 1144, 1147 (1986) (concluding that sentencing court referenced,
and thus relied upon, incriminating statements made by defendant after he had
requested counsel); see also Lane, 738 F.2d at 866-67 (finding reliance
where sentencing judge gave “specific consideration to the questionable
information”); United States v. Stein, 544 F.2d 96, 102 (2d Cir. 1976)
(stating that trial judge’s express reference “to these matters upon imposition
of sentence indicates she probably considered them to be material” or
“otherwise there would not have been any point in her mentioning them”); People
v. Samuels, 915 N.Y.S.2d 758, 759 (App. Div. 2011) (finding that sentencing
court probably considered improper materials because it expressly mentioned
them); State v. Anderson, 588 N.W.2d 75, 77-78 (Wis. Ct. App. 1998) (stating
that sentencing court’s general comments at sentencing hearing concerning
allegations of prior violations cited in PSI report indicated that court relied
upon allegations of sexual assault that had been recanted); cf. State v.
Koons, 2011 VT 22, ¶ 14, 189 Vt. 285, 20 A.3d 662 (holding that court’s
statement at sentencing that victim was not first young girl defendant had had
sex with palpably demonstrated its reliance upon sexual assault charge of which
defendant had been acquitted); In re Carter, 2004 VT 21, ¶¶ 39-43,
176 Vt. 322, 848 A.2d 281 (concluding as matter of law that sentencing court
relied upon defendant’s uncounseled statement to his probation officer denying
crime for which he was convicted, where denial of crime was central to PSI
recommendation, court explicitly stated that it relied upon PSI report, prosecutor
argued for same sentence as one ultimately imposed based on same statements,
and PCR court reasonably interpreted sentencing court’s statements).
¶ 39.      
Here, the PCR court concluded as a matter of law that petitioner could
not show a reasonable probability that he would have received a lesser sentence
but for his counsel’s failure to object to allegations of penetration because:
(1) “[t]he bulk of the argument from the parties and the [sentencing] court’s
explanation of the basis for its sentence contained no mention of penetration”;
(2) “the [sentencing] court’s stated reason for th[e] description [of the crime
as horrible] was that the crime was a betrayal of an innocent child” and that
petitioner had failed to acknowledge the harm he had caused; (3) the sentencing
court’s “stated reasons for [imposing a harsh sentence] had nothing to do with
penetration”; (4) the eight-to-fifteen-year sentence imposed was less than the ten-to-fifteen-year
sentence requested by the prosecution (but notably the same as the sentence
recommended in the PSI containing the allegedly improper allegations); and (5)
the explanation given by the court as “the basis for its sentence would support
the sentence even without consideration of the statements in the PSI relating
to penetration.”
¶ 40.      
Given the record as described above, the PCR court had to accord all
reasonable doubts and inferences to the State to arrive at these conclusions. 
The court essentially ignored the penetration discussion and concluded that the
other factors cited by the sentencing court were the primary factors that the sentencing
court relied upon.  As noted, the fact that the sentencing court may have
relied upon other factors in making its decision does not demonstrate that it
did not rely in part on the act of penetration.  Viewing the record favorably
to petitioner and according him all reasonable doubts and inferences, a judge
could reasonably conclude that the sentencing court enhanced petitioner’s
sentence based, at least in part, on its assumption that petitioner had
committed aggravated sexual assault by penetrating the child victim. 
Accordingly, in my view, summary judgment was inappropriate, and the matter should
be remanded for an evidentiary hearing on petitioner’s PCR petition.  

 


 


 


 


 


 


 


 


Associate Justice

 


[1]
 In considering petitioner’s arguments, we reject the State’s assertion that
certain affidavits filed by petitioner in connection with his motion for
summary judgment should not be considered.  The PCR court specifically allowed
petitioner to file these materials and considered them in reaching its
decision.  It “closed the evidence” on the State’s motion for summary judgment,
but allowed petitioner to file a cross-motion for summary judgment with
supporting materials.  The court indicated that it only wanted to rule on the
summary judgment issue one time and wanted to have all of the parties’
arguments and evidence before it.  While one of petitioner’s affidavits
contained only legal conclusions, the second affidavit contained allegations by
petitioner’s trial attorney about the sentencing court’s demeanor and his
assertion that petitioner was remanded into custody prior to the conclusion of
the hearing.  This information was properly before the PCR court and we have considered
it here.  
 


[2] 
Petitioner argued that his trial attorney provided ineffective counsel by not
objecting to facts in the presentence investigation (PSI) report concerning
penetration.  The State responded that, even assuming ineffective assistance
based on the failure of petitioner’s counsel to challenge statements concerning
penetration in the PSI report, petitioner could not, as a matter of law, prove
prejudice.  The PCR court determined that petitioner had made out a prima facie
case on the ineffectiveness element, stating that, viewed in a light most
favorable to petitioner, “there is sufficient evidence of ineffective
assistance to require a fact-based decision after a hearing.”  Therefore, we
must assume ineffective assistance on appeal.
 
The majority notes petitioner’s admission during
police questioning that he digitally penetrated the victim, a fact that could
conceivably undercut a claim of ineffectiveness on the point raised by
petitioner.  It is only fair to point out the context of petitioner’s
admission.  As reported in the psychosexual evaluation of petitioner, he
repeatedly denied penetration before stating, after the interrogating officer
told him that he had “one more shot” to admit penetration so that he could get
help and avoid throwing away thirty-two years of building his business: “I
don’t believe that I did, but if she says I did, that’s as simple as that.”  Moreover,
at the sentencing hearing, the prosecutor stated that the child “wouldn’t be
able to testify whether he went inside or not.”
 


[3] 
Vermont’s version of Rule 56 has always been “nearly identical to Federal Rule
56.”  Reporter’s Notes, V.R.C.P. 56.  Recently, the rule was amended and
“replaced by a rule based almost entirely on the December 2010 amendments of
Federal Rule 56.”  Reporter’s Notes, 2012 Amendment.  The recent amendment
established “uniformity with the current federal rule,” but made no
“significant changes in the standard for granting summary judgment.”  Id. 
It did, however, substitute the phrase “dispute of material fact” for “issue of
material fact” to better reflect “ ‘the focus of a summary judgment decision.’
”  Id. (quoting Federal Advisory Committee’s Note on 2010 Amendment,
which can be found in 12A C. Wright, A. Miller, et al., Federal Practice and
Procedure, Federal Rules of Civil Procedure, Appendices, App. C., Rule 56, at
492 (2013)).


[4] 
According to the majority, petitioner failed to show that, absent evidence of
penetration, there was a “substantial likelihood” of a different result.  Ante,
¶ 25.  While the U.S. Supreme Court stated in a recent case that the likelihood
of a different result must be “substantial” and “not just conceivable,” Harrington
v. Richter, 131 S. Ct. 770, 792 (2011), the Court reiterated in that same
case the uniformly accepted standard: whether it is “reasonably likely” that
the result would have been different.  Id.  The court expressly noted
that the “reasonably likely” standard does not require a showing that counsel’s
actions “more likely than not altered the outcome,” even though the difference
between the two standards is slight.  Id. (quotations omitted).  In
other words, the majority’s use of the term “substantial likelihood” should not
suggest a standard more rigorous than preponderance of the evidence.  Indeed,
it is a less rigorous standard than preponderance of the evidence.  I agree
with petitioner that the superior court in this case misstated the correct
standard at one point in its decision when it concluded that “petitioner cannot
show, by a preponderance of the evidence, that the [sentencing] court would
have imposed a lesser sentence if it had not considered those [penetration]
statements.”


