In re Carpenter, 197 A.3d 865

Background

In Jan 2011 petitioner was served with an ex parte, emergency relief-from-abuse (RFA) order that included a no-contact provision; a hearing was scheduled for Jan 13 and the temporary order would expire that day. Petitioner called the protected person on Jan 11 and was later charged with felony violation of an abuse-prevention order (VAPO) as part of a plea that produced a five-to-fourteen-year sentence under the Habitual Offender Act.
Petitioner filed a first post-conviction relief (PCR) petition while his direct appeal was pending; the court denied relief in Nov 2014 and petitioner did not appeal that denial.
Petitioner filed a second PCR petition raising a claim that the no-contact provision in the ex parte emergency RFA was facially unauthorized by statute at the time, and that trial counsel was ineffective for failing to challenge the indictment/underlying order.
This Court previously held the second PCR was not successive because it raised a new argument about the invalidity of the ex parte no-contact term, and remanded for the PCR court to consider any abuse-of-the-writ defense and to appoint counsel.
On remand the State moved to dismiss for abuse of the writ; the PCR court dismissed for abuse of the writ after concluding petitioner could not show prejudice because the collateral bar rule precludes collateral attack on the temporary RFA in a prosecution for violating it.
Petitioner appealed, arguing (1) the court erred in appointing counsel who had previously screened his claims as meritless, and (2) the collateral bar rule did not preclude his challenge to the facially invalid no-contact provision.

Issues

Issue	Plaintiff's Argument (Carpenter)	Defendant's Argument (State)	Held
Whether appointment of counsel who previously screened the claims was reversible error	Appointment undermined trust and counsel was conflicted because he had earlier found claims meritless	Any error was harmless because counsel did raise the cause issue and petitioner suffered no prejudice	Not reversible; court assumed cause shown and found no prejudice, so appointment did not change outcome
Whether collateral bar rule bars collateral attack on facially invalid ex parte RFA no-contact provision in prosecution for violating it	The no-contact provision was facially invalid and petitioner lacked an adequate, effective pre-enforcement remedy, so he should be able to raise it in defense	Collateral bar rule applies; petitioner had an adequate and effective remedy (scheduled hearing, emergency motion, or wait until expiration) so he cannot collaterally attack the order	Collateral bar rule applies; petitioner had adequate avenues to challenge the term and thus failed to show prejudice from counsel's omission; dismissal affirmed

Key Cases Cited

Walker v. City of Birmingham, 388 U.S. 307 (U.S. 1967) (collateral-bar principle and exception where adequate pre-enforcement review may be available)
In re Duckman, 179 Vt. 467 (Vt. 2006) (applies collateral bar rule to bar collateral challenges in contempt/enforcement proceedings; recognizes exception for inadequate review)
State v. Mott, 166 Vt. 188 (Vt. 1997) (permitting collateral challenge to an RFA where defendant lacked notice/opportunity to be heard)
State v. Putnam, 137 Vt. 410 (Vt. 1979) (limited collateral attack allowed on license suspensions for jurisdictional/notice defects)
In re Towne, 182 A.3d 1149 (Vt. 2018) (explains abuse-of-the-writ framework: State pleads abuse, petitioner must show cause and actual prejudice)