In re Kirby, 58 A.3d 230

Kirby was charged in 2006 with five counts of possessing child pornography; five separate video files led to five counts.
He pled guilty to three counts in exchange for dismissal of two; sentenced to three concurrent terms of four to fifteen years.
In 2008 Kirby, pro se, filed a post-conviction relief petition later amended with counsel (2009); two claims were raised.
Claim I: ineffective assistance for not researching/informing multiplicity defense to reduce five counts to one; Claim II: counsel failed to advise before plea, making pleas not knowingly/voluntarily entered.
The State opposed; the trial court granted summary judgment for the State; on appeal the issue became whether counsel’s conduct and advice rendered the pleas involuntary.
The Vermont Supreme Court reviewed de novo whether there were genuine issues of material fact and whether counsel’s decisions were reasonable under Strickland and unsettled law in 2007.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was counsel’s decision not to pursue a multiplicity defense reasonable?	Kirby argues counsel should have pursued multiplicity; misunderstanding affected his plea.	Hibbits testified she believed five counts were viable and the defense unlikely.	Yes, reasonable; no basis for relief on this issue.
Did Kirby’s pleas become involuntary due to misinformation from counsel?	Kirby relied on counsel’s misstatement that multiplicity was meritless.	Counsel’s advice was reasonable and based on unsettled law; no misinstruction.	No; pleas were knowingly and voluntarily entered.

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for evaluating ineffective assistance of counsel; deference to trial strategy)
In re Dunbar, 162 Vt. 209 (Vt. 1994) (court treats tactical decisions with deference; not every strategy failure is deficient performance)
In re Mecier, 143 Vt. 23 (Vt. 1983) (unsettled law defense not per se deficient)
In re McGrail, 130 Vt. 492 (Vt. 1972) (valid consideration of ignorance or misunderstanding in plea)
In re Stevens, 144 Vt. 250 (Vt. 1984) (objective evidence required for misunderstanding in plea)
In re Moulton, 158 Vt. 580 (Vt. 1992) (misunderstandings based on counsel’s statements may entitle relief if objective)