In Re: Anthony Kinonian, No. S0658-03 CnC (Norton, J., May 26, 2005) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. S0658-03 CnC 

IN RE ANTHONY KINOIAN 

ENTRY 

 Petitioner seeks post-conviction relief from a series of convictions he 

received for credit card fraud and false pretenses. He argues that his 

defense attorneys in each case failed to provide him with effective 

assistance of counsel. The State opposes this petition because petitioner 

has not shown that his attorneys’ performances dipped below the prevailing 

professional standards or how any errors they may have made materially 

affected his convictions. Both sides agree that there is no dispute as to the 
material facts of this case. Each side, however, has moved for summary 

judgment in their favor as a matter of law. 

 The relevant facts of this case are fairly straightforward. In May of 

2001, petitioner purchased goods from at least two locations, Wal-Mart and 

Hannaford Brothers’, with stolen credit cards. At his first arraignment, 

petitioner was charged with credit card fraud and false pretenses for 

purchases that he made at a Hannaford Brothers’ grocery store on May 31. 

The evidence against plaintiff included several eyewitnesses, store 

videotape, items in petitioner’s possession that corresponded to the stolen 

credit card purchases, and finally the stolen credit card used to make the 

purchases recovered from the trunk of his car. Petitioner’s attorney Karen 

Shingler struck an agreement with the court on petitioner’s behalf for him 

to plead guilty to the misdemeanor count of credit card fraud while the state 

dropped the felony false pretense charge. At that time, the State had not 

filed charges against petitioner for his purchases at Wal-Mart, and the 

Shingler agreement did not address the contingency that he might be. 

 About a year later, petitioner was arraigned a second time for the 

purchases that he made at Wal-Mart. As before, petitioner was charged 

with false pretenses and credit card fraud but was also charged with several 

other crimes including larceny, trespassing, and driving without a license. 

The State had the same amount of evidence with the exception of the stolen 

credit card but with further eyewitness evidence linking petitioner to its 

theft. Petitioner’s attorney for this case was Robert Backus who arranged 

with the court for petitioner to plead no contest in return for a favorably 

structured sentence. Unlike before, the State did not agree to drop the 

felony false pretense charges. 

 Petitioner’s challenge to his second conviction is that Attorney 

Backus failed to challenge the State’s dual charge of credit card fraud (13 

V.S.A. § 2002) and false pretenses (9 V.S.A. § 4043). According to 
petitioner, the two statues overlap and § 2002, the more specific and newer 

statute, impliedly overrules § 4043, to the extent of credit card fraud. Thus, 

petitioner argues, Backus provided ineffective assistance to petitioner when 

he did not challenge the State’s charge and attempt to remove the repealed 

felony count of § 4043. Without going into the merits of this claim of 

implied repeal, the question here is whether Attorney Backus failed in his 

professional duty by not raising this potential defense. In support of his 

claim, petitioner submits the affidavit of Attorney Arthur Rubin who claims 

that he has filed such motions as a defense attorney in Vermont and 

considers them to be an important defense. 

 It is worth noting that Attorney Rubin is less than clear as to how 

successful he has been with such motions. “When confronted with such a 

Motion, the State would be forced to either allow the Court to dismiss the 

case, or, more likely, to amend the charge to the misdemeanor . . .” This 

sentence in the context of Rubin’s affidavit may mean that every time he 

has raised this issue the State has conceded or it may mean what he expects 

the state to have done in petitioner’s case. Regardless of how this is 

interpreted, the import is essentially that making the implied repeal 

argument is a strong strategy.?? Rubin’s affidavit stops short, however, of 

saying that § 2002 actually has overruled § 4043 or that making such an 

argument would have guaranteed dismissal. Indeed, petitioner does not cite 

to any cases either from the Vermont Supreme Court or from the trial 

courts upholding this interpretation and noting the repeal. 

 

1

 Rubin goes further than this conclusion in his affidavit, but the court 

looks to such affidavits only for the evidence that they raise and not the 

conclusions. Pierce v. Riggs, 149 Vt. 136, 137–38 (1987). Rubin’s affidavit 

creates some evidence that Backus and Shingler’s actions may have, in one way, 

violated the first Strickland prong but they are not decisive on this point even for 

the purposes of summary judgment. 
 The distinction is that the implied repeal argument, while important, 

is still just a trial strategy that Backus may or could have considered but 

was far from a slam-dunk issue. Petitioner’s burden in this case is to show 

that Backus’s failure to raise the argument “fell below an objective standard 

of reasonableness informed by prevailing professional norms” and that 

Backus’s “deficient performance prejudiced the defense.” In re Dunbar, 

162 Vt. 209, 212 (1994) (citing Strickland v. Washington, 466 U.S. 668, 

687–88 (1984)). These two prongs mean that petitioner must prove that 

Backus’ decision not to argue was wrong at the time and not in the light of 

hindsight. In re Dunbar, 162 Vt. at 212. The ultimate question is not 

whether Backus would have been successful in raising the implied repeal 

argument, but whether failing to raise it was tantamount to incompetence. 

Id. (court looks to a range of competence within a given situation). 

 At the time, the evidence of petitioner’s guilt was fairly strong and 

any defense aiming for acquittal might be best described as quixotic. 

Backus choose to work out a plea agreement with the prosecution and the 

court that, while not dismissing the specific felony charge, reduced 

petitioner’s jail time significantly. This, of course, was for a case where 

petitioner was facing several different charges and the potential for a heavy 

sentence on top of his prior ten-year sentence. In light of these 

circumstances, petitioner’s argument, that Backus should have filed a 

motion to drop one charge because of implied repeal, smacks of Mondaymorning-quarterbacking. There was no guarantee that Backus’s arguments 

would have been accepted by the court or that the state would have backed 

down from the charge. Even if they did, the State might have been less 

inclined as a result to strike a deal with Backus and petitioner. That might 

have resulted in a higher overall sentence for petitioner. While this is 

merely a possible result, the evidence shows that petitioner’s arguments are 

no more probable of an outcome. As such, petitioner fails to carry his 
burden of demonstrating that his defense was prejudiced by the strategy 

Backus adopted. In re Dunbar, 162 Vt. at 212. Therefore, petitioner’s 

claim for ineffective assistance of counsel is dismissed. 

 Petitioner’s other claim is against Attorney Shingler for failing to 

inquire or investigate further into possible facts that might be, and indeed 

were in 2002, brought up later as charges against him. Specifically, 

petitioner points to the fact that his two sets of convictions stem from the 

same investigation of the same stolen credit card spree that he went on in 

May 2001. He argues that the evidence used to convict him in November 

2002 was in the prosecution’s hands in July 2001, and thus should have 

been found by Shingler through an exercise of diligence. As previously 

noted, however, the State had not charged petitioner with any further counts 

at the time of Shingler’s representation. Furthermore, petitioner had not 

told Shingler about any of the other credit card frauds, and the Williston 

police investigations (on which the 2002 charges were based) had not been 

concluded or filed with the State. All Shingler could have discovered 

through a review of the record was that there was evidence that petitioner’s 

credit card fraud was wider spread than the May 31 incident at Hannaford 

Brothers’. Should this have triggered a duty to investigate further and 

forced the state to either include them in the plea agreement or counsel her 

client against accepting the agreement? 

 As before, there is a strong presumption that petitioner must 

overcome to show that Shingler’s performance, “absent the distorting 

effects of hindsight, fell within the wide range of reasonable assistance.” In 

re Plante, 171 Vt. 310, 313 (2000). At the time of sentencing, Shingler had 

obtained a very good plea agreement for petitioner. This court is not 

prepared to rule as a matter of law that Shingler was further obliged to trace 

down and remove any possible further prosecutions for separate frauds. 

The facts show that apart from the police report available to Shingler 
suggesting other crimes, there was no evidence at the time, apart from 

petitioner who presumably knew about his other crimes, to make Shingler 

aware of future prosecutions. This is simply too attenuated to create a duty 

or to put Shingler’s failure below the standard of reasonable assistance. 

Furthermore, petitioner provides no evidence to show that he would not 

have taken his plea agreement even if Shingler had warned him that he 

might still be exposed to future prosecution. Such a failure is fatal to 

petitioner’s case. In re Fisher, 156 Vt. 448, 461 (1991). Therefore, 

petitioner’s second claim of ineffective assistance of counsel must also be 

dismissed. 

 Based on the foregoing, petitioner’s motion for summary judgment 

is denied. The State’s motion for summary judgment is granted. Petition 

for post-judgment relief is dismissed. 

 Dated at Burlington, Vermont________________, 2005.