Try It Again

A bit of a reversal.

Try It Again

In re: Dow, 2019 VT 72

By: Elizabeth Kruska

This one needs another look.

Miles Dow was convicted of various charges after a trial and was sentenced. While under sentence he filed a petition for post-conviction relief, alleging various grounds. Then his petition took some interesting turns, and long story short, SCOV reversed an appeal, making it more possible that his case will get another look.

It is very common for people under sentence to file post-conviction petitions pro se, or on their own. However, people filing post-conviction relief petitions have the right to counsel, and there’s a procedure for that to happen. A pro se-filed petition gets sent to the Defender General’s Office for review by an attorney. If that attorney sees there is merit to the petition, he or she will go forward and represent the petitioner.

However, if the attorney doesn’t feel there is merit to the petition, he or she then sends it to other attorneys to review for a second opinion. If the other attorney (ultimately, multiple attorneys) look at it and find there’s no merit, they decline the case. The petitioner can still proceed pro se or could hire an attorney. 

So, Mr. Dow filed his initial petition. It went through the review process, and ultimately the Defender General’s Office determined there was insufficient merit to the petition and declined representation. Mr. Dow continued in the case on his own. Here’s the important part: he amended his petition, adding some additional claims. Here’s the other important part: the court continued forward on the petition without having it re-reviewed by the Defender General’s Office to determine if the amended petition now had merit. If it did, that would trigger representation for him.

The State filed a motion for summary judgment on the amended petition. Mr. Dow’s response was basically to ask for more time in the case so he could hire an expert. The court granted the State’s motion. This is what Mr. Dow appealed, and which was reversed.

SCOV says here that because the amended petition was substantially different than the initial petition that it should have been sent back to the Defender General’s Office for another review to determine whether the case had merit. Because if it did, that would trigger assignment of counsel for Mr. Dow. That’s important, because although parties certainly can engage in the court system pro se, it is very helpful to have a lawyer for litigation. Having counsel on board also can help in identifying and hiring experts (which you generally need in an ineffective assistance of counsel claim), appearing in court, and negotiating settlements (which happens more than you might think). 

The problem here was that the PCR court didn’t indicate why it was that Mr. Dow’s amended petition didn’t warrant a second look by the Defender General’s Office. It could very well have been that the attorneys there would look at it and make the same conclusion as before. Or they may have better understood the argument he was making and determined that there was merit to the claim. But without the opportunity to even see it, they were unable to make that determination. 

So, SCOV reverses the grant of summary judgment, sends the case back to the procedural spot where Mr. Dow filed the amended petition, and ordered the PCR court to have the Defender General’s Office review the amended petition consistent with the requirements in the Public Defender Act.