In re Grega

Annotate this Case

In re Grega (2002-291); 175 Vt. 631; 833 A.2d 872

2003 VT 77

[Filed 29-Aug-2003]

ENTRY ORDER

2003 VT 77

SUPREME COURT DOCKET NO. 2002-291

JANUARY TERM, 2003

In re John Grega } APPEALED FROM:
}
}
} Windham Superior Court
}
}
} DOCKET NO. 150-4-99 Wmcv

Trial Judge: Richard W. Norton

In the above-entitled cause, the Clerk will enter:

¶ 1. Petitioner John Grega appeals from a decision of the Windham
Superior Court denying his petition for post-conviction relief alleging
ineffective assistance of both his trial and appellate counsel. The court
found that petitioner did not meet his burden of proof in demonstrating
that fundamental errors committed by his attorneys rendered his convictions
and/or sentences defective. On appeal, petitioner claims that the superior
court committed several errors in denying his petition. We affirm.

¶ 2. In 1995, petitioner was convicted by a jury of aggravated
murder under 13 V.S.A. § 2311(a)(8), and aggravated sexual assault under 13
V.S.A. § 3253(a)(1). He was originally sentenced on both convictions. On
appeal, this Court upheld petitioner's conviction of aggravated murder and
sentence of life without the possibility of parole, and vacated his
conviction and sentence for aggravated sexual assault on double jeopardy
grounds. See State v. Grega, 168 Vt. 363, 721 A.2d 445 (1998).

¶ 3. In 2002, petitioner filed a petition for post-conviction
relief in the superior court pursuant to 13 V.S.A. § 7131, claiming he was
denied his right to effective assistance of counsel guaranteed under the
Sixth and Fourteenth amendments to the United States Constitution.
Specifically, petitioner claimed that his trial counsel failed: (1) to
provide timely notice of intent to impeach a witness with a prior criminal
conviction as required by V.R.Cr.P. 26©); (2) to preserve for appeal the
issue of immunity for a defense witness; and (3) to challenge his
indictments for aggravated murder and aggravated sexual assault on double
jeopardy grounds. Additionally, petitioner claimed his appellate counsel
failed to claim on appeal that: (1) the court should have granted his
motion for mistrial on due process grounds when a child witness was
declared incompetent to testify after voir dire; and (2) the mandatory
sentence of life without parole for aggravated murder is unconstitutional.

¶ 4. During the PCR hearing, petitioner presented expert testimony
by attorney Brad Stetler. Attorney Stetler testified that the performance
of petitioner's trial and appellate counsel fell below reasonable standards
of professional competence. However, he offered no testimony as to how
counsels' performance prejudiced petitioner. The State presented opposing
expert testimony from attorney David Sleigh, who testified that the only
failure of either counsel that fell below reasonable standards of
professional competence was trial counsel's failure to provide notice under
V.R.Cr.P. 26©). Attorney Sleigh further opined that none of trial or
appellate counsels' alleged failures prejudiced petitioner. Petitioner
asserted several other instances of ineffective assistance of counsel, but
did not provide expert testimony in support of those alleged failures. The
superior court found that petitioner's additional claimed failures were not
the type that could be established without expert testimony, and did not
assess them individually. The court instead considered them as background
against which it evaluated assistance of counsel generally.

¶ 5. Based on the evidence presented, the Windham Superior Court
was "left with the distinct impression" that petitioner's trial counsel
"vastly exceeded" the Vermont standard of professional competence. The
court further found that the alleged failures of petitioner's appellate
counsel constituted valid tactical decisions, and were overshadowed by the
"numerous significant issues" that counsel raised on appeal. The court
determined that even if the alleged failures fell below the professional
norm, there was no reasonable probability that any affected the outcome of
the petitioner's trial or appeal. The court therefore concluded that
petitioner had not met his burden of proof. This appeal followed.

¶ 6. Post-conviction relief is a limited remedy. See 13 V.S.A. §
7131. On a petition for post-conviction relief, the petitioner has the
substantial burden of proving "by a preponderance of the evidence, that
fundamental errors rendered his conviction defective." In re Liberty, 154
Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (mem.). On an appeal from a
post-conviction relief decision, we review the court's findings by a
clearly erroneous standard. State v. Bristol, 159 Vt. 334, 336, 618 A.2d 1290, 1291 (1992). If the findings are supported by any credible evidence,
and the conclusions reasonably follow therefrom, this Court will not
disturb the trial court's judgment. Id.

¶ 7. While petitioner's brief states a multiplicity of alleged
errors, his claim on appeal is essentially one of ineffective assistance of
counsel. Under both the United States and Vermont Constitutions, a
petitioner has the right to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687-688 (1984); In re Miller, 168
Vt. 583, 584, 718 A.2d 419, 420 (1998) (mem.). The appropriate standard
for reviewing claims involving ineffective assistance of counsel is whether
a lawyer exercised "that degree of care, skill, diligence and knowledge
commonly possessed and exercised by reasonable, careful and prudent lawyers
in the practice of law in this jurisdiction." Russo v. Griffin, 147 Vt.
20, 24, 510 A.2d 436, 438 (1986) (quoting Cook, Flanagan & Berst v.
Clausing, 438 P.2d 865, 867 (Wash. 1968)). To demonstrate ineffective
assistance of counsel, a petitioner must show by a preponderance of the
evidence that: (1) his counsel's performance fell below an objective
standard of performance informed by prevailing professional norms; and (2)
there is a reasonable probability that, but for counsel's unprofessional
errors, the proceedings would have resulted in a different outcome. In re
Plante, 171 Vt. 310, 313, 762 A.2d 873, 876 (2000); State v. Bristol, 159
Vt. at 337, 618 A.2d at 1291-92; see also Strickland, 466 U.S. at 687-94.
Unless petitioner is able to satisfy both prongs of the test, "it cannot be
said that the conviction or . . . sentence resulted from a breakdown in the
adversary process that renders the result unreliable." Strickland, 466 U.S. at 687. In making this showing, petitioner cannot rely on the
distorting effects of hindsight, and must surpass the strong presumption
that counsel's performance fell within the wide range of reasonable
professional assistance. Plante, 171 Vt. at 313, 762 A.2d at 876; In re
Pernicka, 147 Vt. 180, 183, 513 A.2d 616, 618 (1986); see also Strickland,
466 U.S. at 689.

¶ 8. Petitioner challenges the court's determination that his
counsels' alleged failures, on which he presented expert testimony, did not
fall below a reasonable level of professional competence. First,
petitioner asserts that the superior court erred in failing to find that
petitioner's trial counsel provided ineffective assistance of counsel when
counsel did not preserve the issue of immunity for a defense witness and
subsequently did not place the defense witness on the stand because there
was no grant of immunity. Petitioner argues that the defense witness had
evidence that was clearly exculpatory and crucial to his case. The State's
expert testified that the trial counsel's decisions regarding this defense
witness could not be deemed unprofessional errors, while petitioner's
expert noted that these decisions fell below the professional standards.
The superior court thoroughly weighed the evidence, considered both
arguments before it, and found petitioner's basic premise faulty. See In
re Stevens, 144 Vt. 250, 254-55, 478 A.2d 212, 214-15 (1984) (higher court
will yield to the judgment of the trial court where there is conflicting
evidence at a post-conviction petition hearing). The court highlighted the
concession of petitioner's expert, noting "it was not clear to him what
[the defense witness] might have said." At the PCR hearing, the superior
court considered the testimony of the potential witness's attorney,
together with the evidence, and determined:

[N]either [the attorney's] testimony there nor [the attorney's]
statements to the trial court at the time immunity was being
discussed indicate to this court that [this witness's] testimony
would have been exculpatory-much less clearly exculpatory and
crucial to the defense. Nor is there anything to suggest that the
State was deliberately attempting to distort the fact-finding
process in declining to offer [this witness] immunity. In short,
no one knew then what [she] would have said if called, and no one
knows now. Petitioner acknowledges this uncertainty, but suggests
that the uncertainty is a reason to grant relief. Because the
burden of proof to show error and prejudice is on him, however,
this uncertainty is instead fatal to his argument.

After evaluating the evidence before it, the court found petitioner unable
to prove that counsel's actions fell below reasonable standards of
professional competence. We agree, and see no clear error in the court's
evaluation.

¶ 9. Petitioner also finds fault with the superior court's
determination that he was not prejudiced by his trial counsel's failure to
provide notice pursuant to V.R.Cr.P. 26©), a failure the court determined
to fall below the reasonable standards of professional competence. At the
heart of petitioner's defense strategy was the theory that a particular
witness, Brian Comi, committed the murder for which petitioner was charged.
Petitioner intended to use Comi's prior conviction of forgery for
impeachment purposes, but petitioner's trial counsel failed to provide
adequate notice pursuant to V.R.Cr.P. 26©). At the PCR hearing,
petitioner's expert and the State's expert agreed that this was an error
that fell below reasonable standards of professional competence. Yet even
a professionally unreasonable error by counsel does not guarantee success
on a claim alleging ineffective assistance of counsel. In re Ringler, 158
Vt. 118, 121, 605 A.2d 522, 523 (1992) (proper standard is to determine
whether there was a reasonable probability that, but for counsel's
unprofessional error, the result of the proceeding would have been
different); In re Pernicka, 147 Vt. at183, 513 A.2d at 618 (petitioner
must prove by a preponderance of the evidence that counsel's fundamental
errors prejudiced his case). Petitioner must demonstrate prejudice.
Plante, 171 Vt. at 313, 762 A.2d at 876.

¶ 10. Using the expert testimony and evidence from trial, the
superior court thoroughly considered whether trial counsel's failure to
provide notice of intent to impeach prejudiced petitioner at trial. The
court concluded that there was no "reasonable probability that there would
have been a different outcome if the forgery convictions were used to
impeach Comi, because Comi's general credibility was thoroughly impeached
in other ways." The court noted that:

The jury heard Comi testify that he had joked about killing a
woman, and that the death of this woman was no big deal to him.
It is therefore apparent to the court that the jury must have
realized that Comi was not a generally honorable or credible
person, but nevertheless believed he did not kill Christine Grega.

This conclusion is supported by the evidence and is therefore not clearly
erroneous. As such, we will not disturb the superior court's findings that
the trial counsel's failure to provide notice did not prejudice petitioner.

¶ 11. Petitioner also contends the court erred in failing to find
that his appellate counsel's performance fell below the reasonable
standards of professional competence by not appealing the district court's
decisions surrounding the timeliness and effectiveness of voir dire.
During voir dire, there was a possibility that petitioner's son, a young
child, might testify at trial. Petitioner's counsel used several
peremptory challenges to strike jurors based on their views of a potential
child witness. After voir dire was complete, the child was found
incompetent to testify. Petitioner's subsequent motion for a mistrial on
these grounds was denied. Counsel did not appeal. Petitioner now contends
that the court erred in failing to find his appellate counsel's performance
fell below reasonable standards of professional competence in its failure
to appeal the denial of this motion. Petitioner asserts he was unfairly
prejudiced by the denial of this motion because: (1) the jurors inferred
the child witness had incriminating testimony against petitioner and; (2)
petitioner's counsel was forced to unnecessarily use peremptory strikes.
We disagree.

¶ 12. The superior court heard expert testimony on this issue,
thoroughly considered the evidence, and concluded that petitioner's claim
did not satisfy the two-prong test. See Plante, 171 Vt. at 313, 762 A.2d
at 876. The court noted that "[l]ike the State's expert, the court does
not consider this argument so strong and obvious that failure to raise it
caused appellate counsel's performance to fall outside the broad range of
professional reasonableness." The court noted that the substance of the
child's testimony was never disclosed to the potential jurors, and that the
jurors were specifically instructed to base their decision solely on the
evidence presented. The court concluded that there was no reasonable
probability that raising the issue on appeal would have resulted in a
difference in petitioner's conviction or sentence. We see no clear error
here, and affirm the superior court's findings.

¶ 13. Additionally, in his petition for post-conviction relief,
petitioner asserted that his appellate counsel made an unreasonable
professional error in failing to argue that petitioner's mandatory sentence
of life without parole for aggravated murder was unconstitutional on
grounds of proportionality and separation of powers. The expert testimony
on each side disagreed as to whether counsel made an unprofessional error
in failing to raise this issue on appeal. The court agreed with the
testimony of the state's expert, and concluded that petitioner's counsel
did not make an unprofessional error because the chances of success on this
issue were not strong. This conclusion was not clearly erroneous.

¶ 14. In determining the reasonableness of assistance of counsel,
"[t]his Court is not permitted to judge from hindsight whether tactical
decisions are ultimately successful in determining claims of attorney
competence; rather, we must look to whether such decisions are within the
range of competence demanded of attorneys in a criminal case at that time."
In re Mecier, 143 Vt. 23, 32, 460 A.2d 472, 477 (1983). This is what the
superior court did. In each of the four aforementioned issues, the court
heard expert testimony as to the effectiveness of counsel, and rendered its
decision after careful consideration of all of the evidence. Therefore,
each of petitioner's claims fail.

¶ 15. Finally, petitioner claims that, despite his failure to
present expert testimony, the superior court erred in failing to
specifically address appellate counsel's decisions not to appeal: (1) the
exclusion of petitioner's family from the courtroom, denying him a right to
a public trial; (2) the trial court's decision to omit a lesser-included
offense instruction; and (3) the State's failure to disclose the scope and
contents of prison interviews with defense witnesses. The superior court
considered each of these claims as "background against which [the court]
evaluates assistance of counsel generally" because they were unsupported by
expert testimony. Petitioner suggests that prejudice can be presumed and
the superior court should have addressed these issues in turn,
notwithstanding his failure to present expert testimony. Again, petitioner
is incorrect.

¶ 16. Only in rare situations will ineffective assistance of
counsel be presumed without expert testimony. See, e.g., Tippins v.
Walker, 77 F.3d 682, 689-90 (2d Cir. 1996) (unconscious or sleeping counsel
is considered equivalent to no counsel at all). "Where a professional's
lack of care is so apparent that only common knowledge and experience are
needed to comprehend it, expert testimony is not required . . . ." Estate
of Fleming v. Nicholson, 168 Vt. 495, 497-98, 724 A.2d 1026, 1028 (1998);
see also United States v. Cook, 45 F.3d 388, 395 (10th Cir. 1995)
(appellate counsel's performance in failing to appeal "a dead-bang winner"
may be found deficient and prejudicial to defendant). The superior court
thoroughly weighed the evidence before it. The court chose not to consider
each of these issues separately, concluding that counsel's omissions of
these issues on appeal did not rise to the level of blatant ineffective
assistance of counsel, as raising them would not have definitively resulted
in reversal. See Cook, 45 F.3d at 394 ("The Sixth Amendment does not
require an attorney to raise every nonfrivolous issue on appeal."); Bond v.
United States, 1 F.3d 631, 635 n. 2 (7th Cir. 1993) ("[C]ounsel's strategy
decisions-including the decision not to pursue a plethora of issues on
appeal-ordinarily do not violate the Sixth Amendment's guarantee of
effective assistance.") We agree with the court's assessment.
Accordingly, petitioner's claims fail on appeal.

¶ 17. Petitioner presently asserts that the court should find 13
V.S.A. § 2311©) unconstitutional because it violates his due process right
to a vested earned reduction in term off his sentence pursuant to 28 V.S.A.
§ 811. Petitioner claims that a sentence of life without the possibility
of parole directly conflicts with Vermont's reduction of term for good
behavior. To assess the validity of this claim, we must consider the
history of petitioner's particular argument. Prior to sentencing,
petitioner filed a motion challenging the constitutionality of 13 V.S.A. §
2311©), his motion was denied, and he failed to appeal the court's ruling.
Petitioner subsequently filed a V.R.Cr.P. 35 motion, challenging the
constitutionality of 13 V.S.A. § 2311©) on the same grounds he had raised
in the previous motion. This Court concluded that petitioner was barred
from raising the issue a second time. State v. Grega, 170 Vt. 573, 575,
750 A.2d 978, 980 (1999) (mem.). We have no jurisdiction to address this
issue, as petitioner raised solely the issue of ineffective assistance of
counsel with regard to the constitutionality of 13 V.S.A. § 2311©), and
failed to raise below the specific issue petitioner now asserts.

Affirmed.

BY THE COURT:

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

_______________________________________
Frederic W. Allen, Chief Justice (Ret.)
Specially Assigned

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