In re William Kimmick
No. 11-378
Supreme Court of Vermont
June 21, 2013
2013 VT 43 | 72 A.3d 337
Present: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Bent, Supr. J., Specially Assigned
Affirmed.
2013 VT 43
In re William Kimmick
[72 A.3d 337]
No. 11-378
Present: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Bent, Supr. J., Specially Assigned
Opinion Filed June 21, 2013
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Respondent-Appellee.
Matthew S. Stern of Gravel & Shea PC, Burlington, for Amicus Curiae Gravel & Shea PC.
Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Thomas Tarnow (On the Brief), Montpelier, for Amicus Curiae Office of the Defender General.
¶ 1. Reiber, C.J. Petitioner William Kimmick appeals from a judgment of the superior court, civil division, denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel at sentencing. Petitioner contends the trial court erred in: (1) granting his assigned PCR counsel‘s motion to withdraw; and (2) rejecting petitioner‘s claim that his trial attorney committed fundamental errors affecting the sentence. In addition, amicus
¶ 2. Although lengthy, a full statement of the procedural history is helpful to understand the issues; additional material facts will be set forth in the discussion that follows. Petitioner was originally charged with second-degree murder in the killing of his ex-wife, Katherine Kimmick, in January 2004. In November 2004, petitioner entered a negotiated plea of guilty to an amended charge of manslaughter. The plea bargain allowed both parties to argue for any lawful sentence. Following a contested sentencing hearing in April 2005, defendant was sentenced to fourteen to fifteen years to serve. Defendant appealed the sentence, alleging that the trial court erred in permitting unsworn victim-impact testimony, allowing a nonvictim to testify, and imposing a sentence in which the minimum and maximum terms were effectively the same. We affirmed. State v. Kimmick, 2007 VT 45, 181 Vt. 635, 928 A.2d 489 (mem.).
¶ 3. In April 2008, petitioner filed a pro se PCR petition, asserting that his trial attorney had provided ineffective assistance at sentencing in several respects. Petitioner claimed principally that counsel violated his right to allocution under
¶ 4. Shortly after the filing of the petition, the trial court appointed Seth Lipschutz of the Prisoner‘s Rights Office to represent petitioner. In May 2008, attorney Lipschutz wrote to petitioner informing him that the state‘s attorney had consented to a new sentencing hearing but would oppose the imposition of a different sentence. Petitioner rejected the offer. Following a hearing in June 2008, the trial court granted attorney Lipschutz‘s motion to withdraw and appointed attorney Mark Furlan to represent petitioner.
¶ 6. In late April 2010, attorney Furlan filed a motion to withdraw, informing the court that his review of the case had not revealed any colorable claims, and that in accordance with the Defender General‘s policy, the file had been reviewed by a second, experienced PCR attorney, Ms. Pastor, who had reached the same conclusion. The Defender General simultaneously filed a letter with the court stating that his office had reviewed the matter, determined that petitioner‘s claims did not support representation under
¶ 7. Petitioner filed an opposition to the motion, asserting that attorney Furlan had waived the opportunity to withdraw and that the Defender General‘s screening process did not comply with
¶ 8. The trial court granted the motion to withdraw in late July 2010. Petitioner, in response, filed a notice of pro se appearance and motion for appointment of a legal expert. Following a hearing on the motion, another judge issued an order finding that petitioner had stated a legitimate basis for appointment of an expert, and “requested” that attorney Furlan review the motion and file any objection to his reappointment as counsel of record. In a written response objecting to his reappointment, attorney Furlan stated that his withdrawal had followed more than a year of investigation and research into petitioner‘s claims, and the decided judgment of himself and two other attorneys that they lacked merit. The trial court thereafter issued an order, dated October 14, 2010, finding attorney Furlan‘s objections to be “persuasive” and declining to reappoint him as counsel for petitioner. In the same order, the court granted petitioner thirty days in which to file a proposal identifying an expert witness and the estimated cost of his or her services. Petitioner subsequently requested, and the court granted, an extension to January 2011 to locate an expert.
¶ 9. Petitioner did not identify an expert witness to support the claims. Instead, in February 2011, he moved for summary judgment, relying on the deposition testimony of attorney Williams and his own affidavit. The State filed a cross-motion for summary judgment in March 2011, and the court issued a thirty-three-page ruling in October 2011. Following an exhaustive review of the record and analysis of the claims, the court concluded that attorney Williams had provided effective assistance of counsel, and that petitioner was not prejudiced by his strategic choices. Accordingly, the court entered judgment in favor of the State. This appeal followed.
¶ 10. Petitioner claims a procedural infirmity in the trial court‘s decision to grant PCR counsel‘s motion to withdraw. Petitioner argues that attorney Furlan waived the right to withdraw by representing petitioner for over two years, and that the review process for determining the right to representation under
¶ 11. We considered the procedure for withdrawing from representation in a PCR proceeding in In re Bailey, holding that “[t]here is no constitutional or statutory right to insist that counsel elaborate on their motions to withdraw, and [that] it would undermine the intent of
¶ 12. Whatever merit may inform the argument, we need not resolve it here, as the record—summarized above—clearly shows that the court‘s decision to grant counsel‘s motion to withdraw was not arbitrary or uninformed, and fully satisfied whatever minimal due process protections against unreasoned action a petitioner in these circumstances might enjoy. Counsel regularly apprised the court of his efforts and litigation strategies on behalf of petitioner, explained that he could not locate an expert to support the claims of ineffective assistance, and indicated that he would depose trial counsel as an alternative means of attempting to establish a basis for the claims. Following the deposition, counsel further informed the court that he could find no colorable claims that met the criteria for representation under
¶ 13. Ordered by the court to take a second look at the matter, to review the amended pro se petition, and to consult with petitioner, counsel thereafter filed a letter with the court outlining his further actions. Counsel stated that he had spoken “at some
¶ 14. In light of this record, we have no difficulty concluding that the court‘s decision to grant counsel‘s motion to withdraw was neither arbitrary nor uninformed, and was fully consistent with any minimal due process protections against arbitrary action that might apply in this context.
¶ 15. We also find nothing inconsistent, as petitioner claims, between the court‘s ruling and its finding that petitioner had made a sufficient showing for the payment of an expert witness. As we have explained, the standard for the payment of “necessary services” under
¶ 16. Turning to the merits of petitioner‘s claims, they focus—as noted—on his contention that trial counsel rendered ineffective assistance at sentencing by threatening to withdraw if petitioner or other witnesses testified about the victim‘s alcohol abuse and violent propensities. It is well settled that a defendant who challenges the adequacy of counsel‘s assistance must show by a preponderance of the evidence, first, that counsel‘s performance fell below the standard of a reasonably competent attorney, and
¶ 17. Assessed in light of this standard, we discern no error. Although the trial court found that petitioner had satisfied neither of the requirements for a showing of ineffective assistance, it is sufficient for our purposes to conclude that the record amply supports its finding that none of counsel‘s alleged deficiencies prejudiced petitioner. Substantial information concerning the victim‘s history of alcohol abuse and violence was presented to the sentencing court. The PSI contained defendant‘s statement that the victim was drunk on the night of the offense and attacked him with knife; a summary of a letter from petitioner‘s mother explaining that the victim was an alcoholic and that petitioner was “the battered partner in their relationship“; an addendum containing eyewitness descriptions of the victim on the night of the offense, stating that she had been cut off from having any more drinks at a local bar, became belligerent, and left without paying; statements by the victim‘s mother and sister acknowledging that the victim drank more than she should; and a description by the victim‘s boyfriend of a similar incident in which she came home drunk and threatened him with a knife.
¶ 18. Also submitted to the sentencing court was a psychiatric evaluation of petitioner in which he described many prior incidents of alcohol-induced violence by his former wife. The report‘s author, a board certified psychiatrist, concluded that petitioner‘s account of the crime was “generally consistent with available information“; that the victim “was a severe alcoholic prone to explosive and violent episodes that are well documented by numerous individuals including members of her own family“; that the victim had “attacked [petitioner] on a number of occasions“; and that petitioner‘s actions were a “response, for the first time, to [the victim‘s] countless explosive attacks and provocations.”
¶ 19. At the sentencing hearing itself, the victim‘s mother testified that the victim had engaged in behaviors that had
¶ 20. It is thus abundantly clear that the sentencing court was presented with substantial evidence of the victim‘s history of alcohol-induced violence, and that any additional testimony on the subject by petitioner or others would have been cumulative and of little additional effect. See Rose v. McNeil, 634 F.3d 1224, 1243 (11th Cir. 2011) (“Obviously, a petitioner cannot satisfy the prejudice prong of the Strickland test with evidence that is merely cumulative of evidence already presented.“); People v. Hayes, 961 N.E.2d 311, 322 (Ill. App. Ct. 2011) (holding that trial counsel‘s failure to introduce evidence of victim‘s violent character which was “merely cumulative of that already presented” could not have been prejudicial). Indeed, in its findings the sentencing court here expressly recognized that petitioner had committed the offense while the victim was drunk and armed with a knife, and that theirs had been a particularly “volatile relationship,” as evidenced by the statements in the PSI. The court flatly rejected the notion, however, that these circumstances militated in favor of a lighter sentence, castigating petitioner for appearing “to place the blame on” the victim in some of his statements, and characterizing the offense as “a family tragedy of which you [petitioner] are the primary author.” The record thus firmly supports the court‘s finding that trial counsel‘s unwillingness to focus on the victim at sentencing not only failed to prejudice petitioner, but likely redounded to his benefit.
¶ 21. Petitioner‘s remaining claims are equally without merit. For the reasons discussed above, we discern no support for a finding of prejudice resulting from counsel‘s failure or refusal to contest statements by the victim‘s family members in the PSI about her propensity for violence, or the lack thereof. Petitioner‘s reliance on Stevens is also misplaced. There, we held that trial counsel‘s failure to inform the petitioner of certain important evidence before the sentencing court had deprived him of a meaningful opportunity to address the evidence in his statement in allocution. 144 Vt. at 260, 478 A.2d at 217-18. Here, there was no showing that petitioner was similarly misinformed, and equally
Affirmed.
¶ 22. Dooley, J., concurring. I concur in the Court‘s decision, essentially for the reasons stated. I write to put this case in context with others. Amicus makes two arguments that I have favored in the past—that the procedure for withdrawal of representation employed by the Defender General denies due process of law and that the act of counsel in accepting representation constitutes a waiver of the right to rely on
¶ 23. First, this is an example of a case where the withdrawing attorney explained the grounds for withdrawal, a practice the Defender General has argued in the past must never be done in order to protect the client. As the majority explained in ante, ¶¶ 12-13, counsel explained his progress at each step of his representation, consulted with petitioner and even considered a supplemental argument made by petitioner and responded in writing. I agree that petitioner has a weak case for further due process protections. If appointed counsel and the Defender General had made equivalent disclosures in other cases we have reviewed, I would be more confident that the Defender General‘s process could be fairly applied. In my judgment, the main point to draw from this case is that appointed counsel can disclose the steps in this representation, and in forming counsel‘s opinion on merit, without injuring the client. I recommend that these steps be employed in future cases.
¶ 24. Second, I agree that the grounds for applying waiver to this case are also weak. We need only compare the events here to
¶ 25. Although I concur in the rejection of the due process and waiver arguments of amicus, there are aspects of this case that show a process that remains broken. Justice Burgess argues in his concurrence that petitioner should have no right to representation after he rejected the prosecution‘s offer of resentencing. I draw the opposite conclusion from that event—petitioner‘s claim apparently had enough merit to cause the prosecutor to make a settlement offer that gave petitioner what he wanted. That fact, plus the lengthy analysis and decision of the superior court, gives pause as to whether appointed counsel is applying the standard of frivolity of Rule 3.1 of the Vermont Rules of Professional Conduct.
¶ 26. More important, the delays in the representation decision for PCRs remains unacceptable for any justice system. The challenge here was to what occurred at sentencing after a guilty plea. I cannot accept that it takes two years to determine whether petitioner will have counsel to assert the PCR claims arising out of sentencing. As I did in my concurrence in Crannell, I urge that we impose a much shorter period for counsel review and hold a waiver has occurred if review has not been completed in that time period.
¶ 27. Burgess, J., concurring. I concur in affirming the denial of this PCR petition. I also concur in upholding the trial court‘s approval of PCR counsel‘s motion to withdraw and the Defender General‘s refusal to assign substitute counsel, but arrive at the latter two points more directly. The effectiveness of petitioner‘s counsel at sentencing required no examination by the trial court, and the assignment and lack of assignment of subsequent attorneys to assist in the PCR need not have consumed any more hard-pressed criminal justice system resources, once petitioner refused relief. Alleging less than competent lawyering at his sentencing, petitioner filed a PCR complaint in April 2008 demanding resentencing. Within two months, petitioner‘s then newly
¶ 28. Petitioner‘s rejection of this offer—for all of the relief available to him—rendered continued litigation of his claim frivolous and wasteful, if not moot. See In re Unnamed Defendant, 2011 VT 25, ¶ 2, 189 Vt. 585, 15 A.3d 1039 (mem.) (noting that case becomes moot when, absent actual controversy, court “can no longer grant effective relief” (quotation omitted)). No lawyer is obligated to advocate a frivolous cause. See
¶ 29. Under these circumstances it was no denial of any right to leave petitioner to represent himself, and the withdrawal of counsel and denial of replacement counsel can be affirmed accordingly.
¶ 30. I am authorized to state that Judge Bent joins this concurrence.