In re Lowry
In re Lowry
Opinion of the Court
¶ 1. Petitioner appeals from the superior court’s order granting summary judgment to the State and dismissing his petition for post-conviction relief (PCR). Petitioner asserts that the PCR court disregarded material disputed facts on his claim of ineffective assistance of counsel and prematurely con.1uded that, as a matter of law, counsel’s performance was profession.1ly reasonable and did not prejudice the outcome of petitioner’s trial. We reverse and remand.
¶2. The record, construed in the light most favorable to the nonmoving party, petitioner, reflects the following. See In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. In 2005, petitioner lived with his girlfriend (witness)
¶ 3. Petitioner was assigned counsel; trial was scheduled for February 2007. As a defense strategy, counsel wanted to highlight that other people had access to the child and could have injured her. In particular, counsel contemplated that if witness claimed her Fifth Amendment privilege against self-incrimination when called to testify at trial, the jury might infer that she was involved in the crime and therefore reasonably doubt petitioner’s participation. Counsel’s affidavit acknowledges that the strategy was his idea, stating that it “came to [him]” during a January 2007 meeting with witness and petitioner. Petitioner’s counsel discussed the strategy at the January 2007 meeting with both witness and petitioner.
¶ 5. Referring to witness’s testimony as “potentially . . . the most damaging evidence in the case,” the State emphasized it in its closing argument. Specifically, the State contended that witness’s testimony revealed that petitioner had tried to manipulate the process because he knew he was guilty. The jury found petitioner guilty on one count of aggravated domestic assault, and he was sentenced to imprisonment for five to fifteen years.
¶ 6. Following his conviction, petitioner filed a PCR petition pursuant to 13 V.S.A. § 7131, alleging that his conviction was invalid because his attorney provided ineffective assistance of counsel. Petitioner claimed that counsel performed below an objective standard of reasonableness according to prevailing profession.1 norms and prejudiced his defense by: (1) proposing to witness that she invoke the Fifth Amendment rather than testifying; and (2) failing to cross-examine her or otherwise address at trial her'damaging testimony concerning this proposal. The State moved for summary judgment, contending that trial counsel’s choice of trial strategy was professionally reasonable and did not influence the outcome of the case. In response, petitioner submitted an affidavit from an experienced criminal defense lawyer who corroborated petitioner’s claim, opining that trial counsel’s strategy further incriminated petitioner and speculating that counsel’s inadequate response to witness’s testimony could have been self-
¶ 7. We review a grant of summary judgment de novo, using the same standard as the trial court and conducting a “plenary, nondeferential review of questions of law.” Daniels v. Elks Club of Hartford, 2012 VT 55, ¶ 15, 192 Vt. 114, 58 A.3d 925; In re Barrows, 2007 VT 9, ¶ 5, 181 Vt. 283, 917 A.2d 490. "We will affirm a summary judgment decision when no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law.” Daniels, 2012 VT 55, ¶ 15; see also V.R.C.P. 56(a). On appeal, petitioner argues that the PCR court erred in granting summary judgment to the State because material facts concerning the proposed strategy remain in dispute. Specifically, petitioner contends that he presented a genuine dispute as to whether and to what extent counsel anticipated risks and adequately advised petitioner before proposing the contested strategy. He also argues there is no support in the record for the court’s rationale that counsel “must abide by certain of a defendant’s decisions, even if doing so is not in the defendant’s best interest,” citing to State v. Yoh, 2006 VT 49A, ¶ 31, 180 Vt. 317, 910 A.2d 853. Petitioner asserts that counsel’s strategy, although unexecuted by witness, led inexorably to witness’s damaging trial testimony.
¶ 8. The issue for this Court is whether a dispute of material fact exists and whether the facts, when viewed in the light most favorable to petitioner, demonstrate that counsel’s conduct was reasonable and any errors did not prejudice the outcome at trial. Ineffective assistance of counsel exists if: (1) counsel’s performance “fell below an objective standard of reasonableness,” informed by the “prevailing professional norms” for competency; and (2) there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In re Combs, 2011 VT 75, ¶ 9, 190 Vt. 559, 27 A.3d 318
¶ 9. The PCR court, citing to State v. Yoh, correctly stated that a defense attorney must permit the defendant to make certain strategic decisions even if such decisions are not in the defendant’s best interest. 2006 VT 49A, ¶ 31; see also In re Trombly, 160 Vt. 215, 218, 627 A.2d 855, 857 (1993) (“[M]any trial tactics are ultimately defense counsel’s call, but [others] generally are within the defendant’s decisional control.”). A defendant should only make tactical decisions, however, after he or she has fully consulted with counsel. See, e.g., Trombly, 160 Vt. at 219, 627 A.2d at 857 (listing decisions to be made by the accused after full consultation with defense counsel). Here, the affidavit of trial counsel affirmatively states that the idea was one he proposed for the first time, without prior consultation with petitioner, at the client meeting attended by witness. Furthermore, the undisputed facts do not indicate that it was petitioner’s decision to move forward with this strategy. The court’s unsupported inference that petitioner directed the strategy was in error.
¶ 10. “[C]ourts are not empowered to try issues of fact on a [summary judgment] motion. They examine the affidavits or other evidence simply to determine whether a triable issue exists rather than for the purpose of resolving the issue.” Berlin Dev. Assocs. v. Dep't of Soc. Welfare, 142 Vt. 107, 111, 453 A.2d 397, 399 (1982) (quotation omitted). Furthermore, the “function of a summary judgment is to avoid a useless trial, but a trial is not only not useless but absolutely necessary where there is a genuine issue as to any material fact.” Sykas v. Kearns, 135 Vt. 610, 612, 383 A.2d 621, 623 (1978) (citations omitted). Petitioner’s argument is that
¶ 11. That petitioner failed to specifically allege on the record before the trial court that he was not properly informed of the risks of pursuing this strategy does not affect our holding. The State’s summary judgment motion made no argument based on an assertion that counsel had satisfied his obligation to inform petitioner of the potential serious risks inherent in the strategy. Even the trial court noted the “seriousness” of the proposed strategy when it opined that a defense attorney must abide by a defendant’s decisions “even where a trial strategy is ‘doomed to fail.’ ” Yoh, 2006 VT 49A, ¶¶ 31-32. As petitioner’s expert witness noted, “while there was some discrepancy as to who initially raised the issue with [witness], there seemed to be an agreement that the idea started with [counsel]. Outside of a television script, this strategy was doomed to failure.” The issue was before the court, notwithstanding petitioner’s failure to specifically articulate it in his pleading.
¶ 12. That the strategy as proposed was never implemented by defense at trial is irrelevant under the circumstances, since witness’s arguably damaging trial testimony stemmed directly from the proposal itself. See In re Mecier, 143 Vt. 23, 31, 460 A.2d 472, 477 (1983) (“[A]sserted errors raised by other counsel in post-conviction proceedings must be evaluated in the light of the full picture of the defense, and not extracted from context.”) (quotation omitted).
¶ 13. Finally, the PCR court’s decision on summary judgment that no prejudice could have resulted from proposing the contested strategy is not persuasive. The court dismissed the witness’s trial testimony, finding it “simply too ambiguous and lacking in detail to establish that effective counsel would have produced a
¶ 14. The conflicting record is inadequate to determine on summary judgment whether counsel reasonably anticipated the consequences of suggesting the risky defense strategy, including sufficiently informing petitioner about its risks; and, if he did not, whether petitioner’s defense was prejudiced thereby. We therefore reverse the PCR court’s granting of summary judgment to the State on petitioner’s ineffective assistance of counsel claim and remand for an evidentiary hearing.
Reversed and remanded for further proceedings consistent with the views expressed in this opinion.
Petitioner married his girlfriend after their daughter’s hospitalization, and they subsequently divorced. For consistency, we refer to her as “witness.”
Although parties agree counsel first suggested this strategy, witness provided varying accounts as to whether the idea originated with petitioner or counsel. Witness first told police that, before she met with petitioner’s counsel, petitioner
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