Saturday, September 13, 2014

A Little Late to the Party

In re Babson, 2014 VT 105

By Andrew Delaney

The SCOV seems angry in this opinion—almost like the words are bright, flaming, candy-apple-red angry. Hell, it makes me feel like I’ve done something naughty just reading it.

Petitioner filed a second post-conviction relief (PCR) petition, in an attempt to reinstate his appeal from his first PCR on the ground that his court-appointed counsel failed to file a notice of appeal. “The trial court dismissed petitioner’s request, concluding petitioner had no constitutional right to counsel in his PCR.” In a limited manner, the State supports petitioner’s request. It’s sort of left-handed support—I’m left-handed so I can say that—but it’s support nonetheless.

The SCOV opines: “Because this case presents an egregious example of injustice, we reverse the dismissal and remand the case to the superior court with directions that petitioner’s initial PCR be reinstated with a renewed opportunity for petitioner to file a notice of appeal.”

Petitioner’s state-appointed counsel filed an untimely notice of appeal from the trial court’s denial of petitioner’s first PCR petition. The SCOV notes that “by failing to timely file a notice of appeal counsel performed well below any recognized standard of care.” This, the SCOV has held was “per se ineffective counsel” in an earlier case.

So what’s the remedy? Petitioner argues that his first PCR should be reinstated because his statutory right to PCR counsel includes a minimal level of competence that wasn’t met in this case. The SCOV kind of brushes this argument aside, but not in a dismissive way: The SCOV concludes “that the facts are so glaring as to warrant reinstatement of petitioner’s right of appeal from his first PCR pursuant to this Court’s authority to issue ‘orders that may be necessary to the furtherance of justice.’”

The SCOV reasons that other states have used similar remedies under similar facts. Noting that even the State supports restoring petitioner’s appeal rights from the first judgment, the SCOV obliges. The SCOV reasons that it does not do so lightly, but the remedy is warranted by the facts. The SCOV notes that is touching “only the main points” that justify its decision.

The first point the SCOV makes is about delay. Petitioner filed his original pro se PCR petition in December 2007. The decision was issued in February 2011. Petitioner’s second petition was filed in July 2011 and resolved quickly in the superior court. But then “because of inaction by appointed counsel,” it languished at the SCOV.

The second point is that assigned counsel sent the notice of appeal to the wrong address—an old post office box no longer used by the court—and this wasn’t the first time he had sent something to the wrong address. He had previously sent a post-judgment memorandum to that address, which caused it to be late, and the court pointed that out in its decision.

The third point is that the SCOV sees the Defender General as not helping petitioner regain his appeal right, even though, the SCOV opines, it was that office’s assigned counsel’s error that caused him to lose it in the first place. According to the SCOV, in petitioner’s second PCR proceeding, an attorney from the Defender General’s appeared and filed a memorandum arguing that counsel shouldn’t be appointed because the case was frivolous. Though a motion to reopen the appeal in the first PCR petition was promised, it never materialized in the record.

The SCOV then opines, “Petitioner’s assistance in this Court was only marginally better.” The SCOV reasons that “little of the law relevant to this decision from Vermont or other jurisdictions was uncovered, and there was extraordinary delay in filing a brief”

This is bigger than not filing a timely notice of appeal. “The failure here is not simply of the assigned PCR counsel to timely file a notice of appeal but of the whole system thereafter to protect petitioner’s rights.”

Finally, the SCOV notes that nothing in the record indicates that petitioner had reason to know whether his notice of appeal was timely filed or—even if he had known—that he would’ve been able to correct the problem.

So the SCOV sends it back with orders to reinstate petitioner’s original PCR position and grant him 30 days to appeal.

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