In Re: Bobby Jo Desrochers, No. S1494-03 Cnc (Nor ton, J., July 22, 2005)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. S1494-03 CnC

IN RE BOBBY JO DESROCHERS

ENTRY
Petitioner Bobby Jo Desrochers has petitioned for post-conviction relief, arguing
that he was denied effective assistance of counsel when he pleaded guilty to one count of burglary on October 26, 1998. Specifically, Desroch ers argues that his trial counsel did not pursue a V.R.Cr.P. 12(d) motion to dismiss, whi ch would have shown that the State had presented no facts to demonstrate that Desroche rs had entered any building or structure knowing that he was not “licensed or priv ileged to do so” under 13 V.S.A. § 1201(a). The State has filed a summary judgment mot ion, claiming that Desrochers will not be able to meet his burden of proof to show tha t counsel’s failure to pursue the V.R.Cr.P. 12(d) motion prejudiced Desrochers.

Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . any party is entitled to ju dgment as a matter of law.” V.R.C.P. 56(c)(3). The following facts are undisputed.

In July 1989, Desrochers was charged with one coun t of burglary, in violation of 13 V.S.A. § 1201. The information for the charge st ated that Desrochers had “entered a building, to wit: the Perkins Landing Store at the University Mall, knowing he was not licensed or privileged to do so, with the intent to commit petit larceny.” According to the affidavit of probable cause, an individual subseque ntly identified as Desrochers was observed squatting down beside the steel security g ate for the Perkins Landing Store,reaching through the gate, and removing a sweatshir t from the store. At the time of the

incident, Perkins Landing was closed and locked, an d the Mall was also closed.

Desrochers was privileged to be in the Mall as an employee of Don/Vac Inc., which had a contract to do framing, sheet rocking, and insulation work at the Mall. Don/Vac performed its work after business hours, so its employees were permitted to be
in the Mall even after it closed. Neither the State nor Desrochers, however, provide any specific information regarding the extent of this p rivilege to be in the Mall. Desrochers merely states in an affidavit that Don/Vac’s contra ct included “all framing, sheet rocking and insulating in the new portion of the University Mall.” He does not define what the “new portion” entailed.

Following Desrochers’s arrest and plea of not guil ty, his counsel filed a motion to dismiss pursuant to V.R.Cr.P. 12(d), contending tha t the State could not prove “that Desrochers entered a building.” This motion is date d September 22, 1989. The State submitted a copy of it, but it is not referenced in the docket information regarding this
case and it is not clear what became of the motion.

In any event, on October 26, 1989, the court held a change of plea hearing where Desrochers pleaded guilty. In the V.R.Cr.P. 11 coll oquy, the court asked whether Desrochers had reviewed the police affidavit contai ning the factual basis for the State’s burglary charge. Desrochers replied that he had, th at he was satisfied with his lawyer’s advice, and that he had no further questions for th e court or for his lawyer. The court then found a factual basis for Desrochers’s plea and ent ered a judgment of guilty. Pursuant to the plea agreement, the court sentenced Desrochers to 0 to 120 days to serve concurrently with a separate 90-day sentence.

As an initial matter, the State does not contest w hether Desrochers has standing to pursue a post-conviction relief claim. Pursuant to 13 V.S.A. § 7131, a prisoner must be “in custody under sentence” to petition for post-co nviction relief. Obviously, Desrochers has long since completed his 0 to 120 day sentence in this matter. Though the facts are not clear from the record, Desrochers is apparently still in custody under sentence in federal prison, and his sentence is substantially e nhanced because of numerous state crimes, including this one. Under Vermont law, “‘a significant restraint on personal liberty as a direct result of the challenged Vermon t conviction’ is sufficient to satisfy the post-conviction relief statute.” In re LaMountain , 170 Vt. 642, 643 (mem.) (quoting In re3

Stewart , 140 Vt. 351, 359–60 (1981)). The effect that Desr ochers’s burglary conviction has had on his extended custody in federal prison i s sufficiently direct such that Desrochers is in custody under sentence under the m eaning of § 7131. Therefore, Desrochers has standing to pursue this petition.

In order to determine what effect, if any, the pur suit of a V.R.Cr.P. 12(d) motion would have had in Desrochers’s case, the court turn s first to the burglary statute. The statute provides: “A person is guilty of burglary i f he enters any building or structure knowing that he is not licensed or privileged to do so , with the intent to commit a felony, petit larceny, simple assault or unlawful mischief. This provision shall not apply to a licensed or privileged entry . . . .” 13 V.S.A. § 1 201(a) (emphasis added). The statute proceeds to define “building or structure.”

As used in this section, the words “building,” “str ucture,” and “premises” shall, in addition to their common meani ngs, include and mean any portion of a building, structu re or premises which differs from one or more other porti ons of such building, structure or premises with respect t o license or privilege to enter . . . .

Id . § 1201(b).

Thus, Desrochers could not have been guilty under the statute if Perkins Landing did not differ from other portions of the Mall with respect to Desrochers’s privilege. The police affidavit, though, presented no facts regard ing whether Desrochers knew he was not privileged to enter either the Mall or Perkins Landing. His V.R.Cr.P. 12(d) motion to dismiss would have been successful depending on wha t evidence the State could have produced in response to demonstrate that Perkins La nding did differ from the Mall and therefore was a “building” or “structure” under the meaning of the burglary statute.

Desrochers has the burden of proof on this issue. See In re Mecier , 143 Vt. 23, 26 (1983) (holding that petitioner in post-conviction relief claim has “burden of establishing the infirmity of his conviction”). The State presen ts few facts to support a holding that Perkins Landing differed from the Mall in general. It merely asserts that Desrochers is
not be able to meet his burden and therefore the co urt must grant summary judgment in the State’s favor. See Poplaski v. Lamphere , 152 Vt. 251, 254–55 (1989) (“Summary judgment is mandated . . . where, after an adequate time for discovery, a party ‘fails to make a showing sufficient to establish the existenc e of an element’ essential to his case4

and on which he has the burden of proof at trial.” (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986))).

The State’s undisputed facts suggest that it is hi ghly unlikely that Desrochers had a privilege to enter Perkins Landing. For instance, the court doubts that Desrochers would have had to squat down and reach through a steel ga te to access Perkins Landing if he were privileged to enter Perkins Landing in the fir st place. If he had such a privilege, either his employer or Mall personnel probably woul d have simply left Perkins Landing open or provided him a means by which to remove the steel gate and enter the store. 1

In response to the State’s motion, Desrochers does not specifically state that he was privileged to enter Perkins Landing. He simply asserts that he was privileged to enter the Mall by virtue of his employer’s contract to wo rk in the “new portion” of the Mall. It is nearly impossible to determine from these facts alone whether the “new portion” included stores like Perkins Landing, but, as the V ermont Supreme Court has long held, “the party opposing summary judgment is entitled to the benefit of all reasonable doubts
and inferences.” Carr v. Peerless Ins. Co. , 168 Vt. 465, 476 (1998). The court therefore holds that Desrochers has presented a factual dispu te as to whether he had a privilege to be in Perkins Landing. The court cannot make a find ing on this fact absent a full hearing on the merits. Summary judgment is therefore inappr opriate.

If it should turn out that Desrochers was privileg ed to be in Perkins Landing, then Desrochers would have likely been successful with h is V.R.Cr.P. 12(d) motion because
the State would not have had evidence to demonstrat e a prima facie case that Desrochers entered a building or structure under the meaning o f the burglary statute. Desrochers’s
defense counsel would thus have been ineffective wi th advise Desrochers that there was a factual basis for the court to accept a guilty plea when there was no such factual basis, and there is a strong likelihood that Desrochers wo uld not have pleaded guilty if he had

1 Desrochers asserts in his statement of material fa cts that he actually “reached through the gate of the Perkins Landing Store with a metal object and removed the sweatshirt through the metal gate.” He provides no evidentiary support for this fact pursuant to V.R.C.P. 56(e), but in any event, this fact seems to support the State’s a rgument that Desrochers was not privileged to enter Perkins Landing. A person with a privilege to enter a certain area would not likely go to the trouble of using implements to reach into that area

.5

received proper advice concerning the State’s factu al basis. See, e.g., Hill v. Lockhart

, 474 U.S. 52, 58–59 (1985) (holding that petitioner may satisfy prejudice prong of twopart Strickland standard following guilty plea if petitioner shows “there is a reasonable probability that, but for counsel’s errors, he woul d not have pleaded guilty and would have insisted on going to trial”); State v. McDermo tt , 677 N.W.2d 156, 161 (Neb. 2004) (“[I]n a postconviction action brought by a defenda nt convicted because of a guilty plea, a court will consider an allegation that the plea w as the result of ineffective assistance of counsel.”); Peiffer v. State , 88 S.W.3d 439, 445 (Mo. 2002) (“If a conviction r esults from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowl edge with which the plea was made.”).
The court cannot determine whether Desrochers’s cou nsel was ineffective, however, without first resolving the factual dispute concern ing Desrochers’s privilege.

ORDER

For the foregoing reasons, the State’s summary jud gment motion is DENIED.

Dated at Burlington, Vermont, July 22, 2005.

___________/s/_____________ Judge