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

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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 ser ies of convictions he received for credit card fraud and false pretenses. He argues that his defense attorneys in each case failed to provide hi m with effective assistance of counsel. The State opposes this peti tion because petitioner has not shown that his attorneys’ performances dipp ed below the prevailing professional standards or how any errors they may h ave made materially affected his convictions. Both sides agree that th ere is no dispute as to thematerial facts of this case. Each side, however, h as moved for summary

judgment in their favor as a matter of law. The relevant facts of this case are fairly straigh tforward. 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 f alse pretenses for purchases that he made at a Hannaford Brothers’ gro cery store on May 31. The evidence against plaintiff included several eye witnesses, store videotape, items in petitioner’s possession that co rresponded to the stolen credit card purchases, and finally the stolen credi t card used to make the purchases recovered from the trunk of his car. Pet itioner’s attorney Karen Shingler struck an agreement with the court on peti tioner’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 sec ond time for the purchases that he made at Wal-Mart. As before, pet itioner was charged with false pretenses and credit card fraud but was also charged with several other crimes including larceny, trespassing, and dr iving without a license.

The State had the same amount of evidence with the exception of the stolen credit card but with further eyewitness evidence li nking petitioner to its theft. Petitioner’s attorney for this case was Rob ert Backus who arranged with the court for petitioner to plead no contest i n 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 topetitioner, 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 assi stance 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 mer its of this claim of implied repeal, the question here is whether Attorn ey Backus failed in his professional duty by not raising this potential def ense. In support of his claim, petitioner submits the affidavit of Attorney Arthur Rubin who claims

that he has filed such motions as a defense attorne y in Vermont and considers them to be an important defense.

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

successful he has been with such motions. “When co nfronted with such a

Motion, the State would be forced to either allow t he Court to dismiss the case, or, more likely, to amend the charge to the m isdemeanor . . .” This sentence in the context of Rubin’s affidavit may me an 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. Regar dless 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 af fidavit, 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 ac tions 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 argumen t, while important,

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

was far from a slam-dunk issue. Petitioner’s burde n in this case is to show that Backus’s failure to raise the argument “fell b elow an objective standard of reasonableness informed by prevailing profession al norms” and that Backus’s “deficient performance prejudiced the defe nse.” In re Dunbar

, 162 Vt. 209, 212 (1994) (citing Strickland v. Washi ngton , 466 U.S. 668, 687–88 (1984)). These two prongs mean that petitio ner must prove that Backus’ decision not to argue was wrong at the tim e 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 raisin g the implied repeal argument, but whether failing to raise it was tanta mount to incompetence.

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

At the time, the evidence of petitioner’s guilt wa s fairly strong and any defense aiming for acquittal might be best desc ribed as quixotic. Backus choose to work out a plea agreement with the prosecution and the court that, while not dismissing the specific felon y charge, reduced petitioner’s jail time significantly. This, of cou rse, 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 s hould have filed a motion to drop one charge because of implied repeal , smacks of Mondaymorning-quarterbacking. There was no guarantee tha t Backus’s arguments would have been accepted by the court or that the s tate 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 a nd petitioner. That might have resulted in a higher overall sentence for peti tioner. While this is merely a possible result, the evidence shows that p etitioner’s arguments are no more probable of an outcome. As such, petitione r fails to carry hisburden of demonstrating that his defense was prejud iced by the strategy

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

claim for ineffective assistance of counsel is dism issed.

Petitioner’s other claim is against Attorney Shing ler for failing to inquire or investigate further into possible facts that might be, and indeed were in 2002, brought up later as charges against h im. Specifically, petitioner points to the fact that his two sets of convictions stem from the same investigation of the same stolen credit card s pree that he went on in May 2001. He argues that the evidence used to conv ict him in November 2002 was in the prosecution’s hands in July 2001, a nd thus should have been found by Shingler through an exercise of dilig ence. As previously noted, however, the State had not charged petitione r with any further counts at the time of Shingler’s representation. Furtherm ore, petitioner had not told Shingler about any of the other credit card fr auds, and the Williston police investigations (on which the 2002 charges we re based) had not been concluded or filed with the State. All Shingler co uld have discovered through a review of the record was that there was e vidence that petitioner’s credit card fraud was wider spread than the May 31 incident at Hannaford Brothers’. Should this have triggered a duty to in vestigate 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 peti tioner must overcome to show that Shingler’s performance, “abse nt 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 sentenci ng, Shingler had obtained a very good plea agreement for petitioner. This court is not prepared to rule as a matter of law that Shingler w as further obliged to trace down and remove any possible further prosecutions f or separate frauds. The facts show that apart from the police report av ailable to Shinglersuggesting other crimes, there was no evidence at t he time, apart from

petitioner who presumably knew about his other crim es, to make Shingler aware of future prosecutions. This is simply too a ttenuated to create a duty or to put Shingler’s failure below the standard of reasonable assistance. Furthermore, petitioner provides no evidence to sho w 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 su mmary judgment is denied. The State’s motion for summary judgment is granted. Petition for post-judgment relief is dismissed.

Dated at Burlington, Vermont________________, 2005

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