In re Miles Otis Dow, Jr., 220 A.3d 1261

Dow was convicted of aggravated assault and filed a post-conviction relief (PCR) petition in March 2017.
The Defender General’s Office reviewed the initial PCR petition and declined representation under 13 V.S.A. § 5233(a)(3) as meritless.
Dow then filed an amended PCR petition pro se that raised new, specific ineffective-assistance-of-counsel claims (failure to preserve a mistrial issue on appeal; failure to investigate and present mitigation/expert evidence at sentencing).
The PCR court denied Dow’s motion to reassign counsel, treated him pro se, and later granted the State’s motion for summary judgment, relying in part on the absence of expert proof for the ineffective-assistance claims.
The Vermont Supreme Court reversed and remanded: the court held the PCR court failed to explain or record why it denied a second merits review by the Defender General for the newly raised claims and directed the PCR court to determine whether the amended petition warrants Defender General re-review and, if meritorious, assignment of counsel.

Issue	Dow's Argument	State's Argument	Held
Whether the PCR court complied with the Public Defender Act by allowing Dow to proceed pro se on an amended petition that raised new claims without referring the amendment for Defender General re-review	The amended petition presented substantively new ineffective-assistance claims that were never reviewed by the Defender General; the court erred by denying reassignment and proceeding pro se	The initial Defender General review of the original petition was sufficient; Dow is not entitled to a second merits review as of right	Reversed and remanded. Court must evaluate whether the amended claims may have substance/merit; if so, refer to the Defender General for re-review and assignment of counsel as required by §5233(a)(3)
Whether summary judgment was properly entered because Dow presented no expert evidence for his ineffective-assistance claims	Dow sought more time to secure experts and identified potential expert contacts; summary judgment was premature without resolving whether counsel review and appointment might alter proceedings	The absence of expert testimony made the ineffective-assistance claims unsupported and justified summary judgment	Summary judgment vacated for procedural reasons. Court did not decide the substantive necessity of an expert; remand required so the court can address the procedural defect and, if applicable, permit re-litigation with counsel or allow Dow to proceed pro se with opportunity to secure experts

In re Bailey, 187 Vt. 176 (2009) (explains Defender General’s authority to screen PCR claims and the trial court’s duty to reappoint or refer for reevaluation when an amended petition may have substance)
In re Hemingway, 196 Vt. 384 (2014) (summary judgment standard in PCR proceedings)
In re Burke, 212 A.3d 189 (2019) (reviews abuse-of-discretion standard for procedural PCR determinations)
State v. Dow, 202 Vt. 616 (2016) (underlying criminal conviction and factual background)