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

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-375

                                          MAY TERM, 2015

 Charles Chandler                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 State of Vermont                                      }    DOCKET NO. 114-3-11 Wmcv

                                                            Trial Judge: Mary Miles Teachout

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

        Petitioner appeals orders of the superior court, civil division, denying his motion for
summary judgment and granting the State’s motion for summary judgment with respect to his
petition for post-conviction relief (PCR). We affirm.

         Following a confrontation with several firefighters who entered his property in response
to a reported brush fire, petitioner was charged in 2006 with impeding a public officer, in
violation of 13 V.S.A. § 3001. A jury convicted petitioner of the offense after a three-day jury
trial in November 2009. Petitioner received a sentence of twenty-nine-to-thirty days to serve. In
January 2011, this Court affirmed defendant’s conviction. State v. Chandler, No. 10-135,
2011 WL 4974829 (Vt. Jan. 27, 2011) (unpub. mem.), https://www.vermontjudiciary.org/LC/
unpublishedeo.aspx.

         In March 2011, petitioner filed a PCR petition and sought extraordinary relief, alleging
ineffective assistance of counsel at trial. He alleged that his trial counsel, Matthew Branchaud:
(1) left a voicemail message on petitioner’s telephone shortly before the trial demonstrating his
bias toward petitioner; (2) failed to object to the State’s clearly defective information; (3) failed
to obtain from his predecessor counsel exculpatory evidence that would have bolstered
petitioner’s defense had the evidence been admitted at trial; (4) failed to object to a jury
instruction that substituted “public officers” for “civil officers”; and (5) failed to object to the
prosecutor’s statement during closing argument that petitioner had lied at trial. The superior
court dismissed the petition for lack of jurisdiction, but in February 2013 this Court reversed that
ruling and remanded the matter for further consideration. In re Chandler, 2013 VT 10, 193 Vt.
246.

        In April 2013, petitioner filed a motion for summary judgment. The State responded by
arguing that material facts were in dispute and that petitioner could not prove his trial counsel’s
ineffective assistance without expert testimony. That same month, the superior court issued a
scheduling order that, among other things, required petitioner to disclose by May 15, 2013 all
expert witnesses he expected to call. In June 2013, the State filed a motion for summary
judgment, asserting that petitioner had failed to disclose an expert witness to support his claims
of ineffective assistance of counsel. On September 5, 2014, the superior court denied
petitioner’s motion for summary judgment, concluding that were disputed issues of material fact.
Regarding the State’s motion for summary judgment, the court concluded that expert testimony
was not needed for a jury to determine whether petitioner’s trial counsel was biased against
petitioner, but that, irrespective of any finding of bias, petitioner still had to prove that his trial
counsel’s performance fell below an objective standard of professional norms and that, but for
the deficient performance, there is a reasonable probability that the outcome of the trial would
have been different. Accordingly, the court scheduled oral argument to give the parties an
opportunity to address whether expert testimony was required to support petitioner’s claims of
ineffective assistance of counsel.

        Following a hearing at which the parties presented oral argument, the superior court
issued a decision granting the State summary judgment. The court examined all of petitioner’s
specific allegations of ineffective assistance of counsel and determined that each of them
required an expert criminal defense attorney familiar with prevailing professional norms to
testify about the standard of care required of an attorney under the circumstances of this case.
The court further concluded that expert testimony was needed not only to address whether the
actions of petitioner’s trial counsel fell below an objective standard of professional norms but
also whether, assuming a deficient performance, the outcome of the trial would have been
different with competent representation.

         On appeal, petitioner contends that the ineffectiveness of his trial counsel was so obvious
that it could be understood by lay persons without the benefit of expert testimony. In so arguing,
he relies primarily on his attorney’s pretrial voicemail suggesting an intent to lose the case
because petitioner was not paying his bill for legal services and his attorney’s conduct at trial,
particularly his closing argument, which he claims made it apparent to everyone in the courtroom
that the attorney was deliberately trying to lose the case.*

       The law in this area is well-settled. A petitioner claiming ineffective assistance of
counsel must demonstrate by a preponderance of the evidence that: “(1) his counsel’s
performance fell below an objective standard of performance informed by prevailing
professional norms; and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the proceedings would have resulted in a different outcome.” In re Grega,
2003 VT 77, ¶ 7, 175 Vt. 631. We are “not permitted to judge from hindsight whether tactical
decisions are ultimately successful in determining claims of attorney competence; rather, we
must look to whether such decisions were within the range of competence demanded of attorneys
in a criminal case at that time.” In re Mecier, 143 Vt. 23, 32 (1983). “Only in rare
circumstances will ineffective assistance of counsel be presumed without expert testimony.”
Grega, 2003 VT 77, ¶ 16. Expert testimony is required except in instances “[w]here a
professional’s lack of care is so apparent that only common knowledge and experience are
needed to comprehend it.” Estate of Fleming v. Nicholson, 168 Vt. 495, 497-98 (1998).


       *
          Petitioner also argues that the superior court erred by ignoring additional facts stated in
his motion for summary judgment. In denying petitioner’s motion for summary judgment, the
court stated that the only relevant allegations were those raised in petitioner’s March 2011
complaint, insofar as the State did not have notice of any additional allegations raised for the first
time in petitioner’s motion for summary judgment. Petitioner suggests that the court erred in so
ruling, but does not indicate what additional allegations he made or explain how any such
allegations did not involve disputed issues of material fact. Accordingly, this argument is
unavailing.
                                                  2
         In arguing that he did not need expert testimony to support his PCR petition, petitioner
cites first and foremost his allegation that his trial attorney left a voicemail shortly before the trial
demonstrating bias toward him. Apparently, the attorney was angry about not having received
compensation from Chandler for his services. In his complaint, petitioner indicates that the
attorney stated, “f----ing money b---- . . . f---ing Charlie Chandler . . . . [and] going to go to jail.”
As noted, the trial court ruled that no expert testimony was needed for a jury to determine that
these statements demonstrated bias against petitioner, but that, to prevail on his PCR petition,
petitioner still had to demonstrate that his trial counsel’s performance at trial was below the
standard of prevailing norms and that there is a reasonable probability that, but for his counsel’s
deficient performance, the outcome of his trial would have been different. We agree with this
analysis. To be sure, the alleged pretrial comments by trial counsel are outrageous. But unless
petitioner is able to satisfy both prongs of the ineffective-assistance-of-counsel test, “ ‘it cannot
be said that the conviction or . . . sentence resulted from a breakdown in the adversary process
that renders the result unreliable.’ ” Grega, 2003 VT 77, ¶ 7 (quoting Strickland v. Washington,
466 U.S. 668, 687 (1984)). In his anger over not being paid, the attorney may have taunted
petitioner about him going to jail, but that does not demonstrate, per se, that his trial performance
was deficient, or, if so, that the outcome of the trial would probably have been different had his
performance not been deficient.

        Apart from his trial counsel’s pretrial voicemail, petitioner focuses on remarks made by
the prosecutor and trial judge during closing arguments to support his claim that his trial
counsel’s ineffectiveness was so apparent that expert testimony was not required for him to
prevail. He notes that at one point the prosecutor called his attorney’s arguments ridiculous, and
that the trial judge admonished the attorney that his defense was inappropriate. According to
petitioner, his attorney’s defense was simply that the law was wrong.

        The record does not support these contentions. As indicated in our decision affirming
petitioner’s conviction, the principal defense presented at petitioner’s three-day trial was that
petitioner had a legal right to prevent the firefighters from entering his property because he did
not need a permit for the fire due to the nature of the fire and the presence of snow on the
ground. Chandler, No. 10-135, 2011 WL 4974829, at *2 (Vt. Jan. 27, 2011) (unpub. mem.). His
trial counsel began closing argument by noting that sometimes laws become obsolete and that the
law that petitioner was accused of breaking had never been challenged. In response to the
prosecutor’s objection, the trial judge reminded petitioner’s attorney that the jurors would be told
that they must apply the law as instructed and not weigh its wisdom. Eventually, petitioner’s
attorney made his point that there was a conflict between the statute allowing persons to have
brush fires without a permit when snow was on the ground and the statute giving firefighters
general authority to come onto private property to extinguish fires they deemed to be a threat.
Petitioner’s counsel suggested that this conflict in the law could have led petitioner to reasonably
believe that he had a right to exclude the firefighters from his property. In response, the
prosecutor stated that it was “utterly ridiculous” to suggest that firefighters cannot come onto
private property to put out a fire because no permit was needed to start the fire. Notwithstanding
petitioner’s argument to the contrary, the prosecutor’s stated belief that the defense’s theory of
the case was ridiculous does not demonstrate that the defense was in fact ridiculous or that trial
counsel’s representation was deficient under the circumstances. More importantly for purposes
of this appeal, the prosecutor’s statement cannot substitute for an expert opinion that the defense
presented to the jury amounted to ineffective representation.

      Apart from citing his attorney’s pretrial voicemail and the prosecutor’s and trial judge’s
remarks during closing argument, petitioner’s claims of ineffective assistance of counsel at trial
                                                   3
are the following. First, petitioner argues that his trial counsel failed to object to the State’s
information on grounds that it did not include the mental elements of the charged crime. In our
decision affirming petitioner’s conviction, we found no reason to reverse his conviction based on
this claim because petitioner understood the charge, was able to present an intelligent and
complete defense to the charge, and in fact acknowledged that he strongly challenged at trial the
notion that the firefighters had a right to be on his property to extinguish the fire. Id. Second,
petitioner contends that his trial counsel failed to obtain from prior counsel and present at the
trial the affidavit of a firefighter and photographs indicating that there was snow on the ground at
the time of his alleged offense. Presumably, this evidence would have supported petitioner’s
defense that he thought he had a right to exclude the firefighters because the law allows him to
burn brush without a permit when snow is on the ground. As we indicated in our decision
affirming petitioner’s conviction, “firefighters are authorized to enter property to investigate and
extinguish fires that threaten public safety, irrespective of whether a landowner is required under
the circumstances to obtain a permit to burn brush.” Id. Third, petitioner asserts that his trial
counsel failed to object to the trial court using in its jury instruction the term “public officers”
rather than the term “civil officers” that was used in the State’s information. We pointed out in
our decision affirming petitioner’s conviction that the trial court defined the term “public officer”
to include the categories designated in 13 V.S.A. § 3001, the statute that defendant was charged
with violating. Id. at *3. Fourth, petitioner argues that his trial counsel failed to object to the
prosecutor’s statement during closing argument suggesting that petitioner lied while testifying at
trial.

         Petitioner does not explain how any of these actions or inactions on the part of his trial
counsel fell below the standards for competent counsel under the prevailing norms and the
circumstances of this particular case. Nor does he even attempt to explain how the outcome of
his trial probably would have been different if trial counsel had done what petitioner claims he
should have done. Most importantly for purposes of this appeal, petitioner fails to explain why
expert testimony was not necessary for the court to answer these questions. Accordingly, we
discern no basis to overturn the superior court’s decision granting the State’s motion for
summary judgment and denying petitioner’s motion for summary judgment with respect to
petitioner’s PCR opinion.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice




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