2013 VT 35


In re Russo (2011-004)
 
2013 VT 35
 
[Filed 24-May-2013]
 
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.
 
 

2013 VT 35

 

No. 2011-004

 

In re Vito Russo


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Windham Unit,


 


Civil Division


 


 


 


September Term, 2012


 


 


John
  P. Wesley, J.


 

Matthew Valerio, Defender
General, and Seth Lipschutz and Emily B. Tredeau, Prisoners’ Rights
  Office, Montpelier, for Petitioner-Appellant.
 
Tracy Kelly Shriver, Windham County State’s Attorney, and
Ian C. Sullivan, Legal Intern,
  Brattleboro, for Respondent-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.  Petitioner appeals a civil division order
dismissing his post-conviction relief (PCR) petition for lack of jurisdiction. 
Petitioner sought to attack convictions for which his sentences had been
completed, and the court concluded that petitioner was not “in custody under
sentence” as required by 13 V.S.A. § 7131.  Petitioner argued that he
satisfied the custody requirement because although his sentences were completed
they were used by the criminal division to hold him without bail pending trial
on a different charge.  Because petitioner has failed to allege that his
pretrial incarceration was sufficiently linked to the convictions he seeks to
attack, we conclude that petitioner failed to meet the jurisdictional
requirements of the PCR statute, and affirm.[1]  
¶ 2.            
The record reveals the following pertinent facts.  In November
2002, petitioner was arrested following an altercation with a former mortgage
holder.  During the conflict, petitioner allegedly shot at the mortgage
holder during a car chase.  The information charged fourteen different
counts, including felony aggravated assault.  Petitioner was held without
bail pending trial based on a finding that the weight of the evidence satisfied
13 V.S.A. § 7553a.  Ultimately, the State dismissed one count; petitioner
pleaded guilty to several violations of conditions of release, and a jury found
petitioner guilty of aggravated assault, driving while intoxicated second
offense (DUI), unlawful trespass, and driving with a suspended license
(DLS).  
¶ 3.            
In July 2003, the court sentenced petitioner to twelve to fifteen years
for the aggravated assault.  State v. Russo, 2004 VT 103, ¶ 5 n.5,
177 Vt. 394, 864 A.2d 655.  The court added consecutive sentences for the
DUI and DLS convictions, and the violations of conditions of release, which
totaled an effective sentence of three to six years.  
¶ 4.            
Petitioner appealed the aggravated-assault conviction and the sentence
he received for all charges, and this Court affirmed.  Id.
¶ 1.  Petitioner then filed a PCR petition in the civil division
seeking to overturn his aggravated-assault conviction based on the allegation
that he received ineffective assistance of counsel.  The trial court
concluded that petitioner’s counsel deprived him of effective representation
and granted his request for a new trial in January 2008.[2]
¶ 5.            
Meanwhile, in March 2008, on the aggravated-assault charge, the criminal
division again held petitioner without bail pursuant to 13 V.S.A.
§ 7553a.  Petitioner appealed the hold-without-bail order, and,
following a de novo hearing before a single Justice, the order was affirmed in
April 2008.  See 13 V.S.A. § 7556(d) (granting right to second evidentiary
hearing before a single justice when bail is denied under § 7553a);
V.R.A.P. 9(b)(1).  Petitioner did not further appeal that decision. 
13 V.S.A. § 7556(e) (providing for review of denial by a three-justice
panel); V.R.A.P. 9(b)(2).
¶ 6.            
On December 1, 2010, petitioner filed a handwritten PCR petition in the
civil division.  The petition referenced three different criminal dockets.
 Two of the cases, involving charges of unlawful trespass and failure to
appear, were both dismissed with prejudice by the criminal division in
2005.  The final docket listed was the 2002 multi-count case, which also
included the aggravated-assault charge.  Petitioner attacked his DLS
conviction and his guilty pleas to violating conditions of release.  His
petition alleged that he received ineffective assistance of counsel, that his
sentence exceeded the maximum authorized by law, and that there was newly
discovered evidence that required that his sentence be vacated.  
¶ 7.            
While he alleged that he was incarcerated at the time of filing his
petition, he did not claim to still be serving a sentence for the challenged
convictions.  Indeed, based on the facts presented by petitioner, his
sentence for those charges expired in July 2007.  Petitioner alleged
instead that the prior convictions were “used” to hold him without bail pending
trial on the aggravated-assault charge.  
¶ 8.            
The civil division dismissed the PCR petition on December 8,
2010.  The court concluded
that petitioner failed to demonstrate that he was “in custody under sentence,”
as required by 13 V.S.A. § 7131.  The court acknowledged that
petitioner alleged that the challenged convictions were used to hold him
without bail pending retrial for felony aggravated assault, but concluded that
a pretrial hold-without-bail order did not suffice to meet the statutory
jurisdictional requirement.  The court also noted that the civil division
had no jurisdiction to evaluate the criminal division’s pretrial
conditions-of-release decision.  Having found no jurisdiction to grant
relief, the court did not address petitioner’s request for counsel.  See
13 V.S.A. § 7133 (“Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the court
shall . . . grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with respect
thereto.”).
¶ 9.            
On December 15, 2010, petitioner filed a
motion to reconsider, which primarily included requests for a hearing,
appointment of counsel, and an opportunity to amend the petition.  The
court denied petitioner’s motion for reconsideration in a December 23, 2010
entry order.  Petitioner appeals.
¶ 10.        
On appeal from dismissal for
failure to state a claim, “we employ
the same standard as the trial court: ‘A motion [to dismiss] for failure to state
a claim may not be granted unless it is beyond doubt that there exist no facts
or circumstances that would entitle the plaintiff to relief.’ ”  Mahoney
v. Tara, LLC, 2011 VT 3, ¶ 7, 189 Vt. 557, 15 A.3d 122 (mem.) (quoting Kaplan
v. Morgan Stanley & Co., 2009 VT 78, ¶ 7, 186 Vt. 605, 987 A.2d 258
(mem.)).  In assessing the claims, “[w]e regard as true the complaint’s well-pleaded factual
allegations.”  Wentworth v. Crawford & Co., 174 Vt. 118,
121, 807 A.2d 351, 353 (2002). 
¶ 11.        
Relief pursuant to Vermont’s PCR statute is available to “[a] prisoner
who is in custody under sentence of a court and claims the right to be released
upon the ground that the sentence was imposed in violation of [law].”  13
V.S.A. § 7131.  This appeal turns
on resolution of the jurisdictional question of whether petitioner was “in
custody under sentence of a court” at the time he filed his petition. 
Because it raises a question regarding the scope of the court’s subject matter
jurisdiction, our review is de novo.  See Rheaume v. Pallito, 2011
VT 72, ¶ 2, 190 Vt. 245, 30 A.3d 1263.
¶ 12.        
Our cases have interpreted the “in custody” requirement of 13 V.S.A.
§ 7131 to encompass more than incarceration on the charge being attacked.
 A person remains in custody for purposes of the PCR statute “if [the]
person suffers a significant restraint on personal liberty as a direct result
of the challenged Vermont conviction.”  In re Stewart, 140 Vt. 351,
359-60, 438 A.2d 1106, 1109 (1981).  Nonetheless, the PCR statute does not
provide relief for any type of collateral consequence that a person may
suffer as a result of a prior conviction.  We have cautioned that “[e]very
collateral consequence associated with a conviction will not trigger
jurisdiction,” and noted that “[a] conviction may deny some privileges so
trivial that the ‘in custody’ requirement is not satisfied.”  Id.
at 360, 438 A.2d at 1109. 
¶ 13.        
Accepting as true the allegations in petitioner’s complaint, the
relevant facts are as follows.  Petitioner was incarcerated at the time he
filed his PCR due to a pretrial denial of bail on a charge he does not attack
in this PCR.  The sentences for the only convictions that petitioner seeks
to attack have been fully served.[3]
 The earlier convictions were “used” in some manner in the court’s
decision to hold petitioner without bail.  
¶ 14.        
Certainly, petitioner’s incarceration amounts to a significant restraint
on his liberty.  The relevant question is whether this restraint is “a
direct result of the challenged Vermont conviction.”  Stewart, 140
Vt. at 359-60, 438 A.2d at 1109.  Other courts have described the
necessary nexus as follows: there is jurisdiction to entertain a PCR petition
if the petitioner is in custody pursuant to the conviction he attacks or “if
there is a positive, demonstrable relationship between the prior conviction and
the petitioner’s present incarceration.”  Sinclair v. Blackburn,
599 F.2d 673, 676 (5th Cir. 1979) (per curiam).  Here, we conclude that
petitioner has failed to demonstrate that his current incarceration is
sufficiently related to the convictions he seeks to attack.  See Ristau
v. Kirk, 671 F. Supp. 955, 958 (E.D.N.Y. 1987) (dismissing PCR petition
where there was insufficient connection between current custody and challenged
conviction).
¶ 15.        
Petitioner was detained pursuant to a pretrial denial of release on
bail.  The relevant statute allows a person to be held without bail when
charged with a felony involving an act of violence “when the evidence of guilt
is great and the court finds, based upon clear and convincing evidence, that
the person’s release poses a substantial threat of physical violence to any
person and that no condition or combination of conditions of release will
reasonably prevent the physical violence.” 13 V.S.A. § 7553a.  Thus, in
reaching a decision to hold petitioner without bail, the court was required to
consider several different factors which were varied, and, for the most part,
unconnected to petitioner’s prior convictions.  
¶ 16.        
Indeed, the denial-of-bail order demonstrates that the convictions
petitioner attacks played a minimal, if any, role in the court’s decision to
hold petitioner without bail.[4] 
First, the court noted that the parties agreed petitioner was charged with a
felony that involved an act of violence.  Next, the court concluded that
the evidence was sufficient to sustain a guilty verdict.  Finally, based
on petitioner’s behavior towards and obsession with the alleged victim of the
aggravated assault and defendant’s prior criminal record, the court concluded
by clear and convincing evidence that there was no set of conditions that would
be sufficient to protect the public and the former mortgage holder.  The
court generally referenced defendant’s criminal history as a factor and cited
specific charges including prior burglary and theft offenses, but the court did
not mention the charges defendant now seeks to attack.  Even accepting petitioner’s
allegation that these charges were “used” by the court, their connection to the
court’s overall decision was so remote that it does not suffice to demonstrate
that petitioner’s incarceration was a result of the convictions he seeks to
attack.  Unlike our enhanced-sentence cases where the prior conviction
directly resulted in an enhanced sentence, here there is no direct link between
the present restraint on petitioner’s liberty and the prior conviction. 
Cf. Stewart, 140 Vt. at 359, 438 A.2d at
1109.  
¶ 17.        
Our conclusion is similar to that reached in Sinclair v. Blackburn,
599 F.2d 673.  In Sinclair, while the defendant was serving a
sentence, he sought to challenge a prior unrelated conviction.  He alleged
that the prior conviction prevented him from obtaining certain privileges in
prison and from obtaining possible consideration by the Board of Pardons. 
Id. at 675.  The appeals court concluded that the defendant had
failed to demonstrate that he was in custody for purposes of a PCR because
there was not a sufficient relationship between his prior conviction and
present confinement.  Although the Board of Pardons had sent the defendant
a letter denying him clemency, it cited his past criminal record as only one of
several factors.  The court thus concluded that any nexus between the
defendant’s confinement and his prior conviction was “speculative and
remote.”  Id. at 676 (quotation omitted).  Likewise, in this
case, the connection between petitioner’s pretrial incarceration and his prior
convictions for violations of conditions of release and DLS are just as
remote.  
¶ 18.        
On appeal, petitioner argues for the first time that even though his
sentence on the attacked convictions had expired he remained in custody under
sentence because he was incarcerated in connection with the aggravated-assault
charge, which appeared in the same criminal docket as the attacked convictions.[5]  Petitioner did not raise this basis
for jurisdiction below.  See In re Grega, 2003
VT 77, ¶ 17, 175 Vt. 631, 833 A.2d 872 (mem.) (explaining Court will not
address issues that party failed to raise below).  In any event, we conclude that there is no
“continuing” jurisdiction as to all charges on the same docket just because one
of the counts remains unresolved.  The sentences for the convictions
petitioner seeks to attack have been fully served and petitioner has not
alleged that he is currently serving a sentence extended by those convictions
or concurrent to those sentences.  See Oliphant v. Comm’r of Corr.,
877 A.2d 761, 768 (Conn. 2005) (explaining that petitioner may meet custody
requirement if he is serving consecutive sentences and seeks to challenge
future sentence that has not yet begun or if success on completed sentence
could advance release date).  Indeed, petitioner’s incarceration at the
time he filed his petition was not the result of a sentence at all, but of a
pretrial bail order.  And, as explained, the hold-without-bail order was
not a direct result of the challenged convictions.  Therefore, there was
no jurisdiction over the PCR petition and dismissal was appropriate.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 19.        
ROBINSON, J., dissenting.   I don’t doubt that
petitioner faces a steep uphill battle in showing the necessary causal
relationship between the convictions he challenges and his hold-without-bail
status, but I believe the court’s dismissal of his case on the pleadings, and
prior to referral to counsel, was premature.  For that reason, I
respectfully dissent.
¶ 20.        
I agree with the majority that the central question in this case will be
whether defendant can demonstrate that his detention without bail pending
retrial on the aggravated assault charge was “a direct result of the challenged
Vermont conviction[s].”  In re Stewart, 140 Vt. 351, 359-60, 438
A.2d 1106, 1109 (1981).  Ante, ¶ 14.
¶ 21.        
And I agree that establishing the necessary causal connection in a case
like this is especially challenging.  This is not a case in which a
petitioner was automatically subject to a sentence enhancement or the loss of
an important legal right on the basis of a statute, rule, or other legal
authority; here, the necessary cause-effect relationship between the challenged
convictions and the restraint of liberty supporting the post-conviction relief
petition is a matter of evidence and judgment.  
¶ 22.        
Moreover, petitioner will likely be limited to the established record in
trying to prove the impact of his challenged convictions on his pretrial
detention.  He cannot, after all, depose the trial court judge who
conducted the bail hearing, or the judge who conducted the de novo bail review
hearing, to determine the significance of the prior convictions in either
judge’s decisionmaking.  Judges cannot be compelled to testify about the
mental processes used to formulate judgments.  See United States v. Morgan, 313 U.S. 409, 422 (1941)
(deposition of judge regarding process by which judge reached order “would be
destructive of judicial responsibility”).
¶ 23.        
Finally, a judge’s decision to hold an accused without bail is generally
based on multiple factors, such that establishing the impact of a particular
factor may require inappropriate speculation.  See, e.g., Sinclair v.
Blackburn, 599 F.2d 673, 676 (5th Cir. 1979).  Ante,
¶¶ 15, 17.
¶ 24.        
I nonetheless would hold that dismissal of petitioner’s complaint at the
very threshold of litigation was premature.  I reach this conclusion for
several reasons.  First, our general practice is to “regard as true the complaint’s well-pleaded factual
allegations when reviewing an order on a motion under V.R.C.P.
12(b)(6).”  Wentworth v. Crawford & Co., 174 Vt. 118, 121, 807
A.2d 351, 353 (2002).  In this case, petitioner specifically alleged that
the violation of probation charges that are the subject of his complaint for
post-conviction relief “have been used to hold [him] w/out bail.”  We have
recognized that “when the complaint relies upon a document[, that] document merges
into the pleadings and the court may properly consider it under a Rule 12(b)(6)
motion to dismiss.”  Kaplan v. Morgan Stanley & Co., 2009 VT
78, ¶ 10 n.4, 186 Vt. 605, 987 A.2d 258 (mem.) (quotation and alteration
omitted).  In reliance on this principle, the majority referenced “the
hold-without-bail order.”  Ante, ¶ 16 n.3.  It is not
clear which order the majority relies on—the initial order or the order upon de
novo appeal.  In either event, the transcripts and written decisions from
bail review hearings were not expressly mentioned in nor attached to
petitioner’s PCR complaint.  Although I understand the majority’s chain of
reasoning—petitioner’s causation claim has to be supported by the trial court’s
ruling on bail, and that ruling is a matter of record—I believe the review of
the record undertaken by the majority in the context of this motion to dismiss
stretches the principle we affirmed in Kaplan to a new frontier.
¶ 25.        
Second, the standard applied by the majority affirms that it is
reviewing petitioner’s complaint as if the court were reviewing a motion for
summary judgment.  Rather than considering whether petitioner’s allegations
support a claim, the majority concludes that petitioner “has failed to demonstrate
that his current incarceration is sufficiently related to the convictions he
seeks to attack.”  Ante, ¶ 14.  The record available for
review—consisting of transcripts of two bail hearings and a written decision
from a bail review hearing—may well include all of the evidence on the dispositive
issue of causation that could properly be considered on a motion for summary
judgment.  However, I do not feel confident that we can know that. 
The trial court’s decision focused on a different issue, and petitioner has not
been given the opportunity to present evidence in the context of a motion for
summary judgment.
¶ 26.        
Third, for the purpose of this appeal, the State has conceded that the
challenged convictions were a factor in the trial court’s bail
determination.  Although the Court is not bound by a party’s concession,
at this juncture in the litigation it seems odd to disregard a concession in
favor of our own read of the evidence—or what we believe to be the evidence.
¶ 27.        
Fourth, to the extent we do consider the transcripts of prior bail
review hearings—an approach that apparently differs from the trial
court’s—those transcripts provide some support for petitioner’s claim, albeit
weak.  After petitioner’s aggravated-assault conviction was vacated, the
trial court held a bail review hearing to consider whether petitioner should be
held without bail pending retrial on that charge.  The trial court treated
the hearing as one for review of bail on the ground that petitioner previously
had been held without bail in 2002 following the aggravated-assault and other
charges but before his convictions.  
¶ 28.        
The trial court concluded that evidence of guilt was great, and turned
its attention to the question of whether petitioner’s release pending hearing
would pose “a substantial threat of physical violence to any person” that
reasonably could be prevented through conditions of release.  13 V.S.A.
§ 7553a.  The court noted petitioner’s ongoing obsession with the way
that his property was taken from him by the mortgage-holder.  Then the
court explained:
I
am concerned about the failure to abide by the court’s conditions in the past.
This incident occurred while there was a specific condition not to have contact
nor harass Mr. Mackay and a trespass order had been issued against Mr. Russo
for preventing this same thing and this really serious charge, event, incident
happened while both of those or all of those orders were in place. There was
also an order not to use alcohol and one of the convictions here was a DWI, so
clearly when it comes to Mr. Mackay there’s difficulty with abiding by court
orders that are meant to protect him.  
 
On
appeal, the State presented evidence of petitioner’s convictions for violating
various conditions, and the court specifically identified his criminal
record—presumably including the convictions at issue here—as a factor
supporting its hold-without-bail order. 
¶ 29.        
I do not mean to suggest that on the basis of the above evidence
petitioner could establish the requisite causal connection between the
convictions he is challenging and his confinement without bail, or even that
his claims could survive summary judgment.  The trial court did not
purport to rely on petitioner’s VOP and other convictions in holding
him, but, rather, relied in part on the underlying alleged conduct that gave
rise to those convictions.  On appeal and de novo hearing, the court
pointed generally to petitioner’s criminal record, but did not single out the
charges at issue in this case—which comprised part only of the overall criminal
record.  Again, petitioner faces long odds.  But this is a motion to
dismiss, and petitioner has not had the opportunity to present other evidence
to provide context for understanding the court’s ruling.
¶ 30.        
Finally, I note that the trial court did not refer petitioner’s case for
consideration of appointment of counsel before dismissing the case despite
petitioner’s request for appointed counsel and his filing of the requisite
application for appointment of counsel.  Petitioner’s right to counsel in
connection with the charges that form the basis for the PCR complaint extends
to “any . . . postconviction proceeding which may have more than
a minimal effect on the length or conditions of detention where the attorney considers
the claims, defenses, and other legal contentions to be warranted by existing
law or by a nonfrivolous argument for the extension, modification, or reversal
of existing law or the establishment of new law.”  13 V.S.A.
§ 5233(a)(3).  In this case, the trial court never referred the case
to the Defender General for a determination of whether counsel believed his
claims to be frivolous.  See In re Morse, 138 Vt. 327, 330, 415 A.2d 232, 233 (1980) (failing to appoint
counsel before making any rulings on a PCR motion can be reversible
error).  Before closing the door to the possibility of post-conviction
relief for petitioner, I believe we ought to allow for the possibility that
petitioner may qualify for counsel and that counsel may present evidence or may
identify and brief the issues more persuasively.
¶ 31.        
For these reasons, I respectfully dissent.  I am authorized to
state that Justice Dooley joins this dissent.

 


 


 


 


 


 


 


 


Associate Justice

 







[1] 
The State contends that petitioner’s PCR petition is moot because petitioner
has completed the sentences for the convictions he is attacking and is no
longer incarcerated on a hold-without-bail order.  Indeed, the criminal
docket entries indicate that in June 2011 the criminal division approved a plea
agreement in which the State dismissed the felony aggravated-assault
charge.  Petitioner was then released from custody under conditions.
 We need not address whether petitioner’s case has become moot as we conclude
that the court properly dismissed the petition for failure to state a claim.
 


[2] 
Following the State’s appeal, this Court affirmed in February 2010.  In
re Russo, 2010 VT 16, ¶ 1, 187 Vt. 367, 991 A.2d 1073.


[3] 
Petitioner’s complaint also cited two criminal dockets in which the charges
were dismissed with prejudice by the court in 2005.  Because no conviction
or sentence resulted in those cases, we do not consider them as open for attack
in a PCR proceeding, which is limited to attacks on an invalid
“sentence.”  See 13 V.S.A. § 7131 (providing for collateral attack to
“vacate, set aside or correct the sentence” of a prisoner “who is in custody
under sentence of a court and claims the right to be released upon the ground
that the sentence was imposed in violation of the constitution or laws of the
United States, or of the state of Vermont”).  


[4] 
In assessing whether to dismiss for failure to state a claim, we have
acknowledged that a court may take judicial notice of court decisions or
documents referenced in the complaint without converting the motion into one
for summary judgment.  See Kaplan, 2009 VT 78, ¶ 10 n.4 (noting
that court is not limited to allegations in complaint in ruling on motion to dismiss but may consider a
document referenced in the complaint); see also 5B C. Wright & A. Miller,
Federal Practice & Procedure § 1357, at 376 (2004) (explaining that
“court is not limited to the four corners of the complaint,” and noting that
cases “have allowed consideration of matters incorporated by reference or
integral to the claim, items subject to judicial notice, matters of public
record, orders, items appearing in the record of the case, and exhibits
attached to the complaint whose authenticity is unquestioned”).  Here, the
complaint referenced the hold-without-bail order and we can properly take
judicial notice of the contents of that order.  Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (explaining that in
evaluating motion to dismiss courts must consider complaint and “documents
incorporated into the complaint by reference, and matters of which a court may
take judicial notice”).


[5] 
Although petitioner did not have counsel in the trial court, he is represented
on appeal.



