Wednesday, August 10, 2011

Stir Crazy

In re Ronald Combs, 2011 VT 75 (mem.)

Today’s case comes from the narrow category known as post conviction review.  Commonly referred to as a PCR petition or just PCR, the process is the state equivalent of Habeas Corpus.  It is the second level of scrutiny that defendants in the criminal justice system are entitled to receive to protect their rights and to ensure the process is working properly.  PCR cases are procedural reviews that look not necessarily to ensure that the innocent stay out, the guilty stay in, but that the system retains some safeguards to accurately tell one from the other. 

If you were arrested, you would be arraigned.  The charges would be read, and you would enter a plea.  Presuming your plea is not guilty then your case would develop and go to trial.  During this time, you can file motions to dismiss charges, suppress evidence, and object to any mistakes in procedure or law that the trial court makes.  At the end of trial if you are convicted, you are sentenced.  Then you can appeal to the SCOV challenging the basis of your conviction, your sentencing, and any other mistake that the court made during the trial process.  If you fail, you go to prison, but your rights continue. 

At this point, you have the right to file a PCR petition asking the trial court to revisit the procedure and representation you received at trial and if it was ineffective and if that ineffectiveness likely caused your conviction . . . well, Charlie, welcome to the Chocolate Factory.

It should go without saying that the success ratio on PCRs is low.  Hundreds are filed each year and only a few ever get beyond the initial motions for summary judgment.

Today’s Petitioner, in that light, is one of the lucky ones.  Petitioner was accused of first degree murder in 1990, but he spent four years involuntarily committed in the Vermont State Hospital because he was determined to be incompetent to stand trial.  Ever optimistic, the State monitored his progress in the hospital and made a determination in 1994 that he had recovered enough to stand trial. 

At pre-trial hearings, though, the prosecution was unsure whether Defendant had fully recovered and disclosed on the record that their office was reviewing the ethics of prosecuting the mentally ill.  Defendant’s counsel did not pick up on this hint and did not seek a settlement with prosecution.  Instead, defense counsel stated that his client did not intend to plead insanity or any other mental capacity defense.  The trial court accepted these statements.  Trial followed, and in 1995, Defendant was convicted of first degree murder.

For his PCR petition, Petitioner cites to these fact to establish two instances where his counsel’s mistakes denied him effective counsel during his trial.  The first was counsel’s decision not to enter an insanity plea or defense for Petitioner.  The trial court and later the SCOV reject this argument.  The record shows that defense counsel made his decision based upon the wishes of Petitioner.  For better or for worse, Petitioner did not want to plead his mental state.  Therefore, he cannot raise the issue latter in the case because he owns the choice.

The result is different for the second claim concerning defense counsel’s failure to pursue a settlement with the prosecution.  Petitioner argues that the evidence meets the two part test for determining ineffective assistance of counsel.  First, the failure is a violation of the reasonable and objective standard for defense attorney conduct.  Defense counsel should have known that his client’s mental state made prosecution difficult and could leverage a lower sentence for his client.  Second, but for this failure, Petitioner could have obtained a much lower stipulated sentence.  In other words, the failure made a significant difference in Petitioner’s case.  

The problem for the SCOV is that the trial court made no specific findings on this issue, and without a clear direction from the trial court, the SCOV is unable to rule on this issue.  So we get a remand to the trial court to flush out this issue and determine whether defense counsel failed to seek a stipulated settlement, whether this failure was a breach of standards, and whether this failure led to Petitioner suffering a much higher conviction. 

The SCOV offers no clear direction on this point, but does seem to indicate that the evidence strongly suggests that Petitioner has met the first part of the test by showing his counsel’s incompetence.  The real test, then, will be to show whether this mistake made a difference.  On that point, Petitioner will have some difficulty proving but for counsel’s failure to seek a settlement, he would be in a substantially different situation.  The reality is that no prosecutor would have agreed to a conviction that put Petitioner on the street.  But that remains to be determined by the trial court on remand.

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