107 A.3d 339
Vt.2014Background
- Petitioner filed a pro se post-conviction relief (PCR) petition in Dec. 2007; trial court denied relief in Feb. 2011.
- Court-appointed PCR counsel mailed a timely notice of appeal to the wrong (inactive) PO box, so the notice arrived late and the appeal was dismissed.
- Petitioner filed a second PCR (July 2011) seeking reinstatement of his appeal on the ground counsel failed to file a timely notice of appeal.
- The superior court dismissed the second PCR on the ground there is no constitutional right to counsel in PCR; the State on appeal supported reinstatement of the appeal right (limited to the procedural loss).
- Record showed counsel’s errors were inexcusable (including prior late filing to same wrong address and failure to file a Rule 60(b) motion), and petitioner, incarcerated out of state, could not realistically cure the default in time.
- Supreme Court exercised its 4 V.S.A. § 2(b) authority to order reinstatement of petitioner’s first PCR and granted petitioner 30 days to file a notice of appeal from the reinstated docket.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner has a remedy for appointed counsel’s untimely notice of appeal | Counsel’s failure breached minimal competent-representation duty; rehearing/ reinstatement of appeal is required | State contends relief only if loss of appeal is solely counsel’s fault and suggests remand for factual findings | Court reinstated the first PCR and granted 30 days to appeal under its §2(b) authority because counsel’s conduct plainly caused the loss |
| Whether remand for factual determination (who caused delay) is required | No remand needed because record shows counsel mailed timely-signed notice to wrong address and petitioner timely asked for appeal | State asked for remand to determine petitioner’s personal responsibility | Court declined remand; found facts in record show the untimely filing was counsel’s fault |
| Whether petitioner could have known and cured the late filing (i.e., personal negligence) | Petitioner was incarcerated out of state and had no realistic opportunity to learn of dismissal and file extension motion within the short remaining time | State argued petitioner might share fault | Court found petitioner could not have known in time and could not have filed a timely motion to extend; petitioner bore no fault |
| Proper remedy for extreme procedural injustice from counsel’s failures | Request for individualized, out‑of‑time appeal to further justice | State limited support to restoration of appeal right only | Court used equitable authority (4 V.S.A. § 2(b)) to reinstate appeal; reversed and remanded with directions to reinstate docket and permit 30 days to appeal |
Key Cases Cited
- In re Savo, 139 Vt. 527, 431 A.2d 482 (Vt. 1981) (negligent failure to perfect appeal can constitute per se ineffective assistance)
- In re A.D.T., 174 Vt. 369, 817 A.2d 20 (Vt. 2002) (court used §2(b) authority to reach untimely appeal in interest of justice)
- In re J.C., 169 Vt. 139, 730 A.2d 588 (Vt. 1999) (transferring cause to avoid injustice from expired appeal period)
- Whitney v. State, 976 S.W.2d 391 (Ark. 1998) (granting belated appeal where counsel accepted responsibility for untimely filing)
- Lozada v. Warden, 613 A.2d 818 (Conn. 1992) (statutory right to appointed counsel implies right to competent counsel)
- Brown v. State, 101 P.3d 1201 (Kan. 2004) (permitting belated appeal where appointed counsel failed to notify defendant of critical proceedings)