Chandler v. State , No. 114-3-11 Wmcv (Teachout, J., Oct. 3, 2014)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont t rial court opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Windham Unit Docket No. 114-3-11 Wmcv

CHARLES CHANDLER,

Petitioner

v.

STATE OF VERMONT, Respondent

RESPONDENT’S MOTION FOR SUMMARY JUDGMENT

In this post-conviction relief case, Petitioner Cha rles Chandler seeks to vacate a criminal conviction on the grounds that the lawyer who represented him provided ineffective assistance of counsel. On September 5, 2014, a summary judgment ruling was issued denying Petitioner’s Motion for Summary Judgment. The Court ruled on a portion of Respondent’s Motion and set the case for oral argument on a specific issue in the motion. The hearing took place on October 3, 2 014. Petitioner represented himself, and Respondent was represented by Attorney Tracy Sh river.

The facts are set forth in the Decision of Septemb er 5, 2014.

The issue is whether Petitioner needs expert testi mony to succeed on his claim that his lawyer’s performance prior to and during t rial fell below an objective standard of reasonableness informed by prevailing professional norms, and that such deficient performance prejudiced the Petitioner such that the outcome would have been different without the substandard performance.

In the ruling of September 5, 2014, the Court has a lready determined that expert testimony was not needed to show that the attorney had a bias against Petitioner based on a portion of a telephone voicemail message left by the attorney. However, even assuming that the attorney had bias against Petitioner, a pe titioner must also prove the second prong of the test, i.e., that the result of the trial wou ld have been different. The voicemail bias, even if believed, would not be sufficient to prove that the outcome of the trial would have been different without additional facts showing a s ubstandard performance on the part of the attorney in conducting the defense of Petitione r prior to and at trial.

While bias based on the voicemail is not sufficient by itself to support the claim, such evidence may be pertinent if there is also evi dence of substandard performance, but Petitioner is still obliged to present facts to sho w a substandard performance. The question for oral argument was whether an expert is needed to testify concerning the three grounds on which Petitioner alleged the attor ney’s performance was substandard:2

failure to object to the Information charging Petit ioner with impeding public officers; failure to obtain certain exculpatory evidence from a prior lawyer for Petitioner, and failure to object to jury instructions and closing arguments during trial.

These three allegations all require a criminal defe nse attorney familiar with prevailing professional norms to testify about the standard of care required of a criminal defense attorney under the circumstances of this ca se. The Court cannot determine whether Petitioner’s attorney failed to meet that s tandard without an evidentiary basis for determining what that standard is as it relates to raising an objection to the conte nt of an information, requesting materials from a former att orney, and making objections to the content of a jury instruction and closing argument. Expert testimony is needed in order for Petitioner to meet his burden of proof, both as to what the standard is in relation to the specific allegations in the case, and whether the a ttorney’s actions fell below that

standard and further whether the outcome would have been different without the substandard performance. This is not one of the ra re situations in which ineffective assistance can be presumed without expert testimony

.

Since Petitioner failed to make a timely disclosure of an expert who would provide such testimony, Petitioner is unable to suc ceed on his claim.

ORDER

For the foregoing reasons, Respondent’s Motion for Summary Judgment is granted.

Dated at Newfane this 3 rd day of October, 2014.

Honorable Mary Miles Teachout Superior Court Judge