In re Laura Hernandez
2021 VT 65
| Vt. | 2021Background
- Petitioner Laura Hernandez was charged (2006) with two counts of selling heroin based on two controlled buys by a confidential informant; she was convicted after a 2009 trial and later entered pleas resolving related cases.
- The parties’ discovery stipulation required affirmative defenses (including entrapment) to be noticed within ten days of the close of depositions; Hernandez’s trial counsel (Kolitch) did not timely assert entrapment and first sought an entrapment jury instruction on day one of trial.
- The trial court declined to give an entrapment instruction as untimely and prejudicial to the State; the jury convicted Hernandez; she moved unsuccessfully for a new trial and later waived direct appeal rights as part of a plea in a later proceeding.
- In 2018 Hernandez filed a petition for post-conviction relief (PCR) alleging ineffective assistance of counsel for failing to timely raise entrapment and failing to make constitutional arguments to overcome the late notice.
- The PCR court granted summary judgment to the State; this appeal asks whether undisputed facts show prejudice from counsel’s alleged error under the ineffective-assistance standard.
- The Supreme Court affirmed, holding that even assuming deficient performance, the undisputed record did not show a prima facie entrapment case and thus Hernandez cannot prove prejudice.
Issues
| Issue | Petitioner (Hernandez) — Argument | State — Argument | Held |
|---|---|---|---|
| Whether Hernandez’s PCR ineffective-assistance claim is actionable despite her waiver of direct-appeal rights | Counsel was constitutionally ineffective for failing to timely assert entrapment and for not arguing to allow the instruction despite late notice | PCR claim is either waived or fails on the merits; deliberate-bypass doctrine applies or the claim lacks prejudice | Court did not decide waiver/bypass; resolved on merits — claim fails for lack of prejudice |
| Whether the undisputed record supported a prima facie entrapment defense entitling Hernandez to a jury instruction | Repeated, urgent calls from a close friend in severe pain could constitute persuasion/inducement sufficient to raise entrapment for a jury | Informant’s conduct (friendship, repeated calls) did not amount to the sort of persuasion/inducement creating substantial risk; calls were customary and did not show coercion | No prima facie entrapment; facts insufficient as a matter of law to require an instruction |
| Whether failure to timely request an entrapment instruction prejudiced Hernandez under Strickland standard | If an entrapment instruction would likely have been given, there is a reasonable probability of a different outcome | Because entrapment instruction would not have been warranted, Hernandez cannot show reasonable probability of a different result | Even if counsel’s performance was deficient, Hernandez failed to show prejudice because entrapment was not supported by the undisputed evidence |
Key Cases Cited
- In re Grega, 175 Vt. 631 (Vt. 2003) (sets Vermont ineffective-assistance two-part test)
- State v. George, 157 Vt. 580 (Vt. 1991) (adopts objective entrapment test focusing on government conduct)
- State v. Wilkins, 144 Vt. 22 (Vt. 1983) (explains objective entrapment inquiry and when judge vs. jury decides entrapment)
- State v. Knapp, 147 Vt. 56 (Vt. 1986) (defendant must make prima facie showing of each element to obtain instruction)
- In re LaBounty, 177 Vt. 635 (Vt. 2005) (prejudice standard for PCR ineffective-assistance claims)
- In re Laws, 182 Vt. 66 (Vt. 2007) (PCR is limited remedy and not a substitute for direct appeal; deliberate-bypass doctrine explained)
- State v. Hayes, 170 Vt. 618 (Vt. 2000) (no entrapment instruction where informant merely offered an opportunity)