PCR challenge in Vermont

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo

2025Specifically, to bring a PCR case, an individual must be “[a] prisoner who is in custody under sentence of a court.” 13 V.S.A. § 7131; see also In re LaMountain, 170 Vt. 642, 642 , 752 A.2d 24, 25 (2000) (mem.) (“Post-conviction relief is available only to petitioners who are ‘in custody under sentence of a court’ ” (quoting 13 V.S.A. § 7131)).

2025Specifically, to bring a PCR case, an individual must be “[a] prisoner who is in custody under sentence of a court.” 13 V.S.A. § 7131; see also In re LaMountain, 170 Vt. 642, 642 , 752 A.2d 24, 25 (2000) (mem.) (“Post-conviction relief is available only to petitioners who are ‘in custody under sentence of a court’ ” (quoting 13 V.S.A. § 7131)).

2014In this case, the prejudice prong of proving ineffective assistance of counsel required petitioner to show a reasonable probability that he would have accepted the plea bargain offer if it had been conveyed to him, United States v. Brown, 623 F.3d 104, 112 (2d Cir. 1 The State cross-appeals the superior court’s decision to reopen petitioner’s PCR claim concerning his trial attorney’s alleged failure to convey a plea offer to him after initially granting summary judgment to the State.

2013See In re Morse, 138 Vt. 327, 330 , 415 A.2d 232, 233 (1980) (failing to appoint counsel before making any rulings on a PCR motion can be reversible error).

2013See In re Morse, 138 Vt. 327, 330 , 415 A.2d 232, 233 (1980) (failing to appoint counsel before making any rulings on a PCR motion can be reversible error).

2009See Gould, 2004 VT 46, ¶ 20 , 177 Vt. *281 7, 852 A.2d 632 (criticizing attorney's statement at PCR hearing that there was "not even colorful grounds, not even a scintilla of evidence" to support client's position, and indicating that such statements converted attorney into client's "de facto adversary," unable to meet client's expectations of zealous representation). ¶ 13.

2009See Gould, 2004 VT 46, ¶ 20 (criticizing attorney’s statement at PCR hearing that there was “not even colorful grounds, not even a scintilla of evidence” to support client’s position, and indicating that such statements converted attorney into client’s “de facto adversary,” unable to meet client’s expectations of zealous representation). ¶ 13.

2008In either case, "[t]he expired conviction may then be attacked as having improperly enhanced or resulted in the present sentence." Vaughn, 83 F.3d at 79 (holding that petitioner "may attack his [predicate] conviction in the context of his challenge to the sentence he is presently serving"); cf. Boskind, 174 Vt. at 196 , 807 A.2d at 368 (Dooley, J., dissenting) (observing that allowing challenge directly in enhancement proceeding would not only deny use of prior conviction in enhancement, but that "[a] successful PCR challenge [would] entirely overturn the judgment").

2008In either case, “[t]he expired conviction may then be attacked as having improperly enhanced or resulted in the present sentence.” Vaughn, 83 F.3d at 79 (holding that petitioner “may attack his [predicate] conviction in the context of his challenge to the sentence he is presently serving”); cf. Boskind, 174 Vt. at 196 , 807 A.2d at 368 (Dooley, J., dissenting) (observing that allowing challenge directly in enhancement proceeding would not only deny use of prior conviction in enhancement, but that “[a] successful PCR challenge [would] entirely overturn the judgment”).

2008The court in Vaughn indicated that it was following Clark v. Pennsylvania, 892 F.2d 1142, 1145 (3d Cir.1989), wherein the court held that the "reviewability of [expired] convictions nonetheless remains before us . . . because of their collateral enhancement consequences on the [later] sentence." Thus, notwithstanding the majority's argument to the contrary, the Third Circuit cases do not directly address the question of what becomes of an invalid predicate conviction used to enhance a later sentence. ¶ 32.

2008The court in Vaughn indicated that it was following Clark v. Pennsylvania, 892 F.2d 1142, 1145 (3d Cir. 1989), wherein the court held that the “reviewability of [expired] convictions nonetheless remains before us . . . because of their collateral enhancement consequences on the [later] sentence.” Thus, notwithstanding the majority’s argument to the contrary, the Third Circuit cases do not directly address the question of what becomes of an invalid predicate conviction used to enhance a later sentence. ¶ 32.

2008In either case, “[t]he expired conviction may then be attacked as having improperly enhanced or resulted in the present sentence.” Vaughn, 83 F.3d at 79 (holding that petitioner “may attack his [predicate] conviction in the context of his challenge to the sentence he is presently serving”); cf. Boskind, 174 Vt. at 196 , 807 A.2d at 368 (Dooley, J., dissenting) (observing that allowing challenge directly in enhancement proceeding would not only deny use of prior conviction in enhancement, but that “[a] successful PCR challenge [would] entirely overturn the judgment”).

2008In either case, “[t]he expired conviction may then be attacked as having improperly enhanced or resulted in the present sentence.” Vaughn, 83 F.3d at 79 (holding that petitioner “may attack his [predicate] conviction in the context of his challenge to the sentence he is presently serving”); cf. Boskind, 174 Vt. at 196 , 807 A.2d at 368 (Dooley, J., dissenting) (observing that allowing challenge directly in enhancement proceeding would not only deny use of prior conviction in enhancement, but that “[a] successful PCR challenge [would] entirely overturn the judgment”).

2000See Plante, 164 Vt. at 356 , 668 A.2d at 678 (“The evidence brought to bear against defendant was overwhelming.”).

2000See Plante, 164 Vt. at 356 , 668 A.2d at 678 (“The evidence brought to bear against defendant was overwhelming.”).

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo

1997See In re Hall, 143 Vt. 590, 595 , 469 A.2d 756, 758 (1983) (burden of proving that procedural shortcoming hampered or frustrated exercise of accused’s rights rests squarely on petitioner in PCR cases); In re Bentley, 144 Vt. 404, 410 , 477 A.2d 980, 983 (1984) (to show prejudice, petitioner must demonstrate that he was unaware of nature of charges and consequences of plea, and that his lack of understanding caused him to plead no contest); see also In re Cohen, 161 Vt. 432, 434 , 640 A.2d 34, 36 (1994) (in PCR hearing, ultimate focus is on fundamental fairness of proceedings); State v. Bristo