ENTRY ORDER

SUPREME COURT DOCKET NO. 2012-029

OCTOBER TERM, 2012

In re Ryan Brink } APPEALED FROM: } } } Superior Court, Franklin Unit, } Civil Division } } DOCKET NO. S 227-08 Fsc

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

Petitioner appeals the denial of his petition for p ost-conviction relief (PCR). He claims that he was denied counsel without a proper review by the Defender General. We remand for

such review.

Petitioner was convicted of aggravated sexual assau lt and enabling alcohol consumption by a minor in May 2006. His conviction was affirme d on appeal. In May 2008, petitioner filed a pro se PCR asserting various claims including ineff ective assistance of counsel. The Defender General concluded that petitioner’s case was not me ritorious and declined to represent him. See 13 V.S.A. § 5233(a)(3). In September 2009, petitio ner pro se filed an amended complaint, asserting additional claims, including police misco nduct and newly discovered evidence. He had apparently obtained a recording of a police intervi ew with the complainant, and he claimed that it demonstrated the alleged crime was committed during a period of time when petitioner was incarcerated. On December 16, 2010, the court orde red the Defender General to conduct a new review of the petition in light of the amended comp laint and the recorded interview petitioner had obtained. Thereafter, an attorney from the pri soner’s rights office wrote a letter, stating he had reviewed the “petition and transcript,” and con cluded that the claim would not be successful. Therefore, he withdrew from the case.

The PCR went forward, and petitioner appeared pro s e. Following a hearing, the court

denied the PCR.

On appeal, petitioner argues that the court erred i n failing to appoint petitioner an attorney where the PCR merit-review process was not properly conducted. According to petitioner, no one from the prisoner’s rights offic e reviewed the interview recordings. They looked only at the trial transcripts. Petitioner r equests that the matter be remanded to the trial court for a proper review of whether his case has m erit.

The State’s Attorney has submitted an appellee’s br ief stating that it has no objection to having the matter remanded for further review by th e Defender General to determine if there is2

merit to the case and appointment of counsel if the case is nonfrivolous. Appearing as an amicus curiae, the Defender General joins appellee’s brief

.

Given the lack of objection by the State’s Attorney and the Defender General, the appeal is dismissed without prejudice, and the matter is r emanded. On remand, the trial court shall refer

the matter to the Defender General for a review of petitioner’s claims. This review shall include the entire record, including the recordings of the complainant’s interviews. If the Defender

General determines that the matter is frivolous and no representation is warranted, he shall report that to the court. The trial court’s denial of pet itioner’s PCR on the merits shall then stand and petitioner’s right to appeal that decision is prese rved. If the Defender General does not so report, he shall appoint counsel, and the denial shall be s tricken and the merits of the PCR considered

anew.

Dismissed and remanded.

BY THE COURT:

Paul L. Reiber, Chief Justice

John A. Dooley, Associate Justice

Marilyn S. Skoglund, Associate Justice

Brian L. Burgess, Associate Justice

Beth Robinson, Associate Justice