Chandler v. State, No. 114-3-11 Wmcv (Teachout, J., September 5, 2014)

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                                              STATE OF VERMONT

SUPERIOR COURT                                                                          CIVIL DIVISION
Windham Unit                                                                            Docket No. 114-3-11 Wmcv

CHARLES CHANDLER,
Petitioner

v.

STATE OF VERMONT,
Respondent


                 PETITIONER’S MOTION FOR SUMMARY JUDGMENT
                                     and
                 RESPONDENT’S MOTION FOR SUMMARY JUDGMENT

        In this post-conviction relief case, Petitioner Charles Chandler seeks to vacate a
criminal conviction on the grounds that the lawyer who represented him provided
ineffective assistance of counsel. The matter is now before the court on Petitioner’s
Motion for Summary Judgment, filed April 15, 2013, and the State of Vermont’s Motion
for Summary Judgment, filed June 5, 2013.

                                                           FACTS

         On March 30, 2006, Petitioner was burning brush on his property in Newfane,
Vermont. When firefighters from the NewBrook Fire Department arrived to investigate
the fire, Petitioner refused to allow them onto his property. Petitioner was subsequently
charged with impeding public officers in violation of 13 V.S.A. § 3001.

        Petitioner eventually went to trial on this charge with Matthew Branchaud as his
counsel. At trial, Petitioner argued that the fire on his property was for barbecuing, he
was not required to have a permit to barbecue, and, therefore, the firefighters had no
authority to enter his property. On November 20, 2009, a jury convicted Petitioner of
violating 13 V.S.A. § 3001.

         On January 10, 2010, Petitioner filed a petition requesting Post-Conviction Relief
or, in the alternative, Extraordinary Relief. This petition was ultimately denied. On
March 30, 2010, Petitioner was sentenced to 29-30 days to serve in jail. The Vermont
Supreme Court stayed the sentence pending appeal on April 12, 2010, but Petitioner’s
conviction was affirmed on January 27, 2011. On March 9, 2011, Petitioner was ordered
to report to the Southern Vermont Correctional Center to complete his sentence.
       On March 14, 2011, Petitioner filed the petition in this case. His claim is that his
counsel was ineffective because: he was biased against Petitioner, he failed to obtain
exculpatory evidence, and, during trial, he failed to object appropriately.

        The Superior Court dismissed the petition for lack of jurisdiction because
Petitioner had completed serving his sentence, but the Vermont Supreme Court reversed
the ruling and remanded the case, finding that the Court did have jurisdiction because
Petitioner was in custody at the time he filed the petition.

        On April 15, 2013, Petitioner moved for summary judgment on the merits of the
case, seeking to have his November 20, 2009 conviction vacated based on ineffective
assistance of counsel. The State responded on April 19, 2013, countering that significant
disputes regarding material facts still existed and claiming that Petitioner could not prove
that his counsel was ineffective without expert testimony.

        On June 5, 2013, the State filed its own motion for summary judgment, asserting
that Petitioner had failed to make timely disclosure of an expert witness to support his
claim with expert opinion testimony, and that without an expert, he could not succeed on
his ineffective assistance of counsel claim. Petitioner objected on June 12, 2013,
claiming that Respondent’s motion was unsupported by the evidence and prior
proceedings in this matter.

                                       ANALYSIS

        To prevail on a motion for summary judgment, a movant must demonstrate “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” V.R.C.P. 56(a). In ruling on a motion for summary judgment, the
court will take “all allegations made by the nonmoving party as true.” Richart v.
Jackson, 171 Vt. 94, 97 (2000). Here, both parties have moved for summary judgment,
and each motion will be addressed separately. See DeBartolo v. Underwriters at Lloyd’s
of London, 2007 VT 31, ¶ 8, 181 Vt. 609 (“If both parties seek summary judgment, each
must be given the benefit of all reasonable doubts and inferences when the opposing
party’s motion is being evaluated.”).

Petitioner’s Motion for Summary Judgment

        Petitioner asserts that his counsel, Mr. Branchaud, was ineffective because of bias
against Petitioner and repeated performance failures before and during trial. The test for
determining whether counsel was ineffective has two prongs. “The first prong… is an
inquiry into the reasonable competence [of the lawyer] as measured by the prevailing
standards in the conduct of the Respondent’s case” and “[t]he second prong… evaluates
whether, if counsel’s performance did fall below the objective standard, such failure
created a reasonable probability that effective counsel would have produced a different
outcome.” In re Russo, 2010 VT 16, ¶ 16, 187 Vt. 367 (internal quotations omitted).




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        In his original petition Mr. Chandler identified several facts to support his
ineffective assistance of counsel claim, including:
        1) Counsel’s voicemail left on Petitioner’s answering machine, suggesting that
            the attorney was biased against Petitioner,
        2) Counsel’s failure to object to the Information charging Petitioner with
            impeding public officers,
        3) Counsel’s failure to obtain certain exculpatory evidence from a prior lawyer
            for Petitioner, and
        4) Counsel’s failure to object to jury instructions and closing arguments during
            trial.1

        On a motion for summary judgment, Petitioner “has the burden of proving… that
no disputed issues of material fact exist.” Fitzgerald v. Congleton, 155 Vt. 283, 294
(1990) (emphasis added). He cannot obtain summary judgment merely by making
allegations because it is the nonmoving party’s, in this case Respondent’s, allegations that
are taken as true. See Savage v. Walker, 2009 VT 8, ¶ 5, 185 Vt. 603. In this case,
Respondent has challenged Petitioner’s characterization of his counsel’s performance,
thus creating a disputed issue of material fact that precludes summary judgment for
Petitioner. O’Brien v. Synnott, 2013 VT 33, ¶ 9, 72 A.3d 331. Accordingly, Petitioner’s
motion for summary judgment must be denied.

Respondent’s Motion for Summary Judgment

        The State claims that Petitioner cannot maintain his ineffective assistance of
counsel claim because he has failed to disclose an expert whose testimony would be
necessary for Petitioner to succeed on this claim. This calls for a review of the four
factual bases on which Petitioner grounds his claim.

        Generally, in a post-conviction relief proceeding, a petitioner can only prove that
his attorney’s performance was ineffective because it “fell below the standard of
effectiveness of reasonably competent counsel” through an expert witness. In re K.F.,
2013 VT 39, ¶ 34, 72 A.3d 908. However, “in rare situations… ineffective assistance of
counsel [can] be presumed without expert testimony.” In re Grega, 2003 VT 77, ¶ 16,
175 Vt. 631. For example, where a party’s attorney is asleep during trial, a lay factfinder
could determine such behavior amounted to ineffective assistance of counsel without
hearing from an expert. See Tippins v. Walker, 77 F.3d 682, 689-90 (2d Cir. 1996).

       Mr. Chandler’s assertion that his counsel was biased against him as shown by the
voicemail does not require expert testimony. See Coll v. Johnson, 161 Vt. 163, 165
(1993) (“Expert testimony is not generally required where the alleged violation of the
standard of care is so apparent that it may be understood by a lay trier of fact without the

1
 The facts identified in Petitioner’s initial March 14, 2011 Petition are the only allegations relevant in this
matter. Additional facts regarding Petitioner’s counsel’s ineffectiveness that were first raised in
Petitioner’s Motion for Summary Judgment cannot be considered because they were not identified in the
petition as bases for the claim and as a result, the State had no notice of them.


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aid of an expert.”). Here, Petitioner has alleged that his counsel was biased against him
based on various statements made by Petitioner’s counsel in a voicemail message. A
layperson can understand whether Petitioner’s counsel was biased against Petitioner
without expert testimony. Nothing about determining bias based on the statements of
Petitioner’s counsel requires “scientific, technical, or other specialized knowledge.”
V.R.E. 702.

        However, bias alone is insufficient to show ineffective assistance of counsel. An
attorney need not like a client. It is possible that a petitioner can show that bias against a
client was related to a substandard performance as counsel, but to prove an ineffective
assistance of counsel claim, a petitioner still must prove the two elements described
above. Specifically, a petitioner “must demonstrate first that counsel’s performance fell
below an objective standard of reasonableness informed by prevailing professional norms
and second, that counsel’s deficient performance prejudiced the defense.” In re
LaBounty, 2005 VT 6, ¶ 7 (mem.) (quotation omitted). Prejudice exists where “counsel’s
errors were so serious as to deprive the defendant of a fair trial. . . . In other words, the
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.” Id. (quotations, alternation and citation omitted).

        The question therefore is whether Petitioner needs expert testimony to succeed on
his claim that his lawyer was ineffective based on the conduct described in paragraphs 2,
3, and 4 above. Petitioner did not designate any experts by the deadline of May 15, 2013
as required by the Revised Scheduling Order of April 9, 2013. Accordingly, he cannot
use expert testimony to support his claim. Therefore the question is whether his claim
can survive without expert testimony.

       The Court will schedule oral argument to give each party the opportunity to
present their arguments on this narrow issue.

                                          ORDER

       Petitioner’s Motion for Summary Judgment is hereby denied.

        Respondent’s Motion for Summary Judgment will be scheduled for oral argument
on the issue described above. Each side will have a total of 20 minutes at the oral
argument.


       Dated this 5th day of September, 2014.



                                               Honorable Mary Miles Teachout
                                               Superior Court Judge

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