An Unreasonable Petition

By Nicole Killoran

In re Kirby, 2012 VT 72.

Today’s case is a post-conviction review decision.  As regular readers may remember, post-conviction review occurs after a criminal is convicted and sentenced and has exhausted all of his or her appeals.  Post-Conviction Review (or PCR as those-in-the-know call it) is an appeal to the superior court seeking relief from an error in the underlying process.  At a PCR hearing, the Petitioner (who is usually incarcerated) will argue that he or she received ineffective assistance of counsel, did not knowingly waive his or her rights, or possesses new evidence showing innocence.  What a Petitioner cannot do is re-try the original criminal case.

The old saw is that a defendant is entitled to a fair trial, not a perfect one.  PCR is the way we test the fairness portion of that proposition.  Ask John Grega if it works.

Of Course Grega is the rare exception.  Most PCR petitioners are DOA or prove themselves to be soon thereafter.  Still, the process protects the innocent by giving them a chance to submit their process to review and scrutiny after the dust of the trial has settled. 

In that light, let us go through Petitioner’s case.  In 2006, Petitioner was charged with five counts of possessing child pornography on his computer, one for each of the five videos found.  On the advice of his defense attorney, Petitioner worked out an agreement with the prosecution: he pled guilty to three of the five counts in exchange for dismissal of the other two.  He was subsequently sentenced to three back-to-back prison terms of four to fifteen years.

Two years later, Petitioner filed a post-conviction relief motion claiming ineffective assistance of counsel.  Petitioner argued that defense counsel failed to inform him that he could raise a claim challenging the five counts of child pornography as violating the constitutional prohibition against multiple prosecutions for the same offense.  In other words, Petitioner believed he was a victim of Double Jeopardy.  Petitioner thought he could possibly have had his five counts reduced to one charge under this approach, but that his attorney’s omission precluded this, and as a result his guilty plea was not knowing and voluntary.

Petitioner moved for summary judgment on this claim and included an affidavit from a criminal defense expert supporting his position.  The expert conceded in the affidavit that this area of law was in flux, but claimed that Petitioner’s five charges did in fact violate Double Jeopardy.

The State opposed Petitioner’s motion, and filed its own cross-motion for summary judgment.  Petitioner’s counsel at trial submitted an affidavit along with the State’s opposition stating that she had researched the Double Jeopardy challenge, informed Petitioner of its availability, and had recommended against it because her research showed he wasn’t likely to succeed. 

Petitioner did not present any evidence contradicting these facts despite his initial claim.  The trial court granted the State’s motion, and Petitioner appealed.

On appeal to the SCOV, Petitioner changed his approach just a bit, having failed to deny that defense counsel had actually informed him of the multiplicity challenge option, discussed it with him, and advised against it.  Petitioner instead dropped his ineffective assistance of counsel argument.  He claimed that his attorney had wrongly informed him that it was not a viable defense, that he entered his guilty pleas based on this misinformation, and that his plea was therefore involuntary. 

Unfortunately for Petitioner, the SCOV disagrees.

In order to determine whether Petitioner’s guilty plea was involuntary, the SCOV first addresses Petitioner’s abandoned ineffective assistance of counsel claim because it must first determine whether his defense attorney was reasonable in advising Petitioner that a Double Jeopardy challenge would likely fail.

In support of his claims, Petitioner argued to the SCOV that the language of the criminal statute, which forbids possession of “any” child pornography, is ambiguous.  Thus, under the rule of lenity (giving the Petitioner the benefit of the doubt), Petitioner’s five charges would have been reduced to one had his attorney raised the issue.

But, the SCOV notes, its job is not to determine in hindsight whether Petitioner would have succeeded below on a claim he never raised; rather, its job is to determine whether Petitioner’s attorney committed a fundamental error by not raising this challenge.  No Monday morning quarterbacking allowed.

Instead, the SCOV explores the decisions of other state courts back in 2007 and concludes that the majority of states at the time had denied similar claims.  In at least two of these cases, the court considered a statute with similar language to Vermont’s (forbidding “any” possession), and found that separate charges for individual pieces of child pornography in the defendant’s possession did not raise a Double Jeopardy issue.

Thus, the SCOV concludes, when defense counsel researched the issue in 2007, she reasonably concluded that this argument would be a dud if Petitioner raised it.  Petitioner had five separate files on his computer, which formed the evidentiary basis for five individual counts of possession of child pornography.  The SCOV pays great deference to the tactical decisions of defense attorneys and concludes that in this case the attorney did not commit a fundamental error in her representation.

With this determination, the rest of the SCOV’s analysis is quick and easy.  In order to succeed on an involuntary plea claim in this situation, Petitioner would have to show he accepted the plea agreement relying on misinformation provided by his attorney.  The other side of that coin dictates that Petitioner will fail if his misunderstanding was subjective and his attorney’s advice is otherwise solid.  Given its previous determination regarding reasonableness, the SCOV concludes that defense counsel’s advice was objectively sound, that Petitioner accepted her advice, and that he voluntarily pled guilty on three counts.  Petitioner’s request for post-conviction relief is denied.

Sometimes a last ditch argument to avoid a criminal sentence works, sometimes it doesn’t.  Today’s Petitioner falls under the latter category, and much to his chagrin he is denied his Get-Out-of-Jail-Free card.  Hopefully he can at least rest easier in his prison cell knowing that his guilty plea was in fact voluntary.