In Re Bailey

2009 VT 122, 992 A.2d 276, 187 Vt. 176, 2009 Vt. LEXIS 150

• Court: Supreme Court of Vermont
• Decided: December 24, 2009
• Docket: 2007-454
• Status: Published

Opinions

Burgess, J.

¶ 1. Attorney Allison Fulcher seeks to withdraw as appointed counsel for petitioner Kenneth Bailey, Sr., in this post-conviction relief (PCR) appeal. As discussed below, we grant her request.

¶ 2. The record indicates the following history. Petitioner pled guilty to domestic assault and sexual assault in May 2004. He filed a pro se PCR petition in September 2005. Counsel from the Prisoners’ Rights Office apparently represented petitioner at some point, but counsel withdrew in October 2005. Petitioner indicated that he wished to represent himself. Following a hearing at which petitioner appeared pro se, the trial court denied the PCR petition, finding it without merit. Petitioner then filed a pro se notice of appeal as well as an application for public defender services.¹ Attorney Fulcher was assigned to represent petitioner on appeal.

¶ 3. In August 2008, Fulcher moved to withdraw, asserting that she could not continue to represent petitioner in light of Vermont Rule of Professional Conduct 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”) and Rule 3.3 (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), as well as 13 V.S.A. § 5233(a)(3) (needy person entitled to counsel in PCR proceeding “where the attorney considers [the legal claims] warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”). Fulcher indicated that petitioner did not oppose her request to withdraw.

¶ 4. In an entry order signed by Justice Dooley, counsel was directed to provide additional information to support her motion. Specifically, she was ordered to submit an affidavit that contained: (1) a specification of petitioner’s claims; (2) law or argument that arguably supported each claim; and (3) a statement that counsel did not consider petitioner’s claims to be warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The order cited Anders v. California, 386 U.S. 738 (1967), and the information requested is similar to a so-called Anders brief. See id. at 743-44 (attorney appointed to represent indigent defendant in direct appeal who seeks to withdraw on grounds that case is frivolous must provide court with brief identifying anything in the record that might arguably support the appeal; indigent is allowed to supplement this brief, and then court will decide if case is wholly frivolous). Counsel then asked the full Court to review the single Justice entry order, which was granted.

¶ 5. Fulcher argues that she should be allowed to withdraw without providing the information identified above. She maintains that the considerations underlying Anders are not present here, and that her withdrawal is ethically preferable to filing an affidavit that outlines the shortcomings of her client’s case. The Office of the Defender General filed an amicus brief, echoing these arguments. It explains that the Legislature expressly limited the right to state-funded legal representation in PCR proceedings to nonfrivolous cases as determined by counsel, 13 V.S.A. § 5233(a)(3), and that the Defender has an in-house system to evaluate whether a PCR is frivolous. By limiting the right to counsel to nonfrivolous cases, the Defender continues, the Legislature chose to conserve public money and ensure representation for petitioners whose cases do have merit. The Defender maintains that the existing review procedure adequately protects petitioners. The adequacy of the Defender’s review process — which involves an initial review of the record and file by two attorneys, and if neither can find a meritorious claim, a review of these materials by a third attorney — is not challenged here.

¶ 6. The Court appointed attorney Michael Rose to file an amicus brief opposing the Defender’s position. He emphasizes that the Court has discretion in ruling on a motion to withdraw, citing Cameron v. Burke, 153 Vt. 565, 573, 572 A.2d 1361, 1365 (1990) (Supreme Court reviews trial court’s ruling on motion to withdraw for abuse of discretion) and V.R.A.P. 45.1(f) (“Leave to withdraw after the appeal has been docketed will be granted only for good cause shown and on such terms as the Court may order.”). He maintains that 13 V.S.A. § 5233(a) does not require that the Court defer to the Defender’s evaluation of the merits of a particular PCR. More importantly, he argues, the statute did not divest the Court of its authority under V.R.A.P. 45.1(f) to grant or deny motions to withdraw. Attorney Rose asserts that the information requested in the one-Justice entry order will allow the Court to properly exercise its discretion, and it will enable the Court to determine if the attorney’s opinion is honestly held and the product of adequate, sound consideration. He also suggests that because this information is provided at the Court’s request, the attorney will not be placed in an ethical bind.

¶ 7. While the Court generally enjoys procedural discretion in considering motions to withdraw under Rule 45.1, we find no basis to require counsel to file an Anders brief to support a request for withdrawal in this case. Such a requirement would defeat the cost-saving purpose of the amendment to 13 V.S.A. § 5233(a)(3), and it would expand the statutory right to counsel to eases that this Court, rather than the appointed attorney, considers appropriate. Cf. Maloney v. Bower, 498 N.E.2d 1102, 1104 (Ill. 1986) (chief judge of circuit court did not have authority to issue general order directing judges to appoint public defenders to represent indigents in civil contempt proceedings, thereby enlarging duties of office of public defender beyond what legislature had provided). Moreover, review of the withdrawal in the context of this case would literally elevate form over substance. The “appointment” of counsel was accomplished by a ministerial referral to the Defender General’s Office. Counsel could not determine whether she would represent appellant under § 5233(a)(3) until after an examination of the issues prompted by the pro forma referral.

¶ 8. The Public Defender Act (PDA) explicitly governs the “extent of [legal] services” due to indigent PCR litigants, and it expressly conditions a petitioner’s entitlement to representation on counsel’s assessment of the merit of the legal action. 13 V.S.A. § 5233(a)(3). The statute provides in pertinent part that, after appeal, a “needy person” is entitled:

To be represented in any other postconviction proceeding which may have more than a minimal effect on the length or condition of detention where the attorney considers the claims, defenses, and other legal contentions to be warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

Id. § 5233(a)(3) (emphasis added).

¶ 9. An Anders-type explanation justifying counsel’s withdrawal is not required in the PCR context. The withdrawal prerequisites called for in Anders are designed to vindicate a defendant’s constitutional right to counsel, 386 U.S. at 744, and, as the United States Supreme Court has recognized, a petitioner has no constitutional right to counsel in civil PCR proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (rejecting notion that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions). Absent an underlying constitutional right to counsel in state post-conviction proceedings, there is “no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.” Id. at 557. “Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.” Id. at 555; see also People v. Breaman, 939 P.2d 1348, 1351 n.2 (Colo. 1997) (en banc) (citing Finley and concluding that appointed attorney who seeks to withdraw from representing defendant in post-conviction proceeding may inform court that he or she believes defendant’s claims are without merit and request permission to withdraw without filing Anders brief).

¶ 10. Rather than being grounded in the constitution, petitioner’s right to counsel is created, defined, and limited by statute. See In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act sets forth statutory right to counsel in PCR proceedings even though providing such assistance is not constitutionally compelled). Before 2004, the PDA guaranteed an indigent litigant the right to representation in any post-conviction proceeding “that . . . the needy person considers appropriate.” 13 V.S.A. § 5233(a)(3) (1998) (enacted 1971, No. 161 (Adj. Sess.), § 6). In light of this language, we held that the state was obligated to provide PCR counsel upon the litigant’s request, regardless of the merit of the claims raised in the PCR or the fact that representation was not constitutionally compelled. Gould, 2004 VT 46, ¶ 13.

¶ 11. In 2004, likely in response to Gould, the Legislature amended the statute to eliminate the language above. Rather than have the petitioner determine when counsel would be provided, the Legislature instead gave counsel the exclusive authority to accept or decline each case. See 2003, No. 157 (Adj. Sess.), § 10 (specifying that entitlement to representation in PCR proceedings attaches “where the attorney considers the . . . contentions to be warranted by existing law or by a nonfrivolous argument”). It is thus clear from the plain language of the statute that counsel must decide when state-funded legal representation is warranted in a post-conviction proceeding. See Ice Ctr. of Wash. W., Inc. v. Town of Waterbury, 2008 VT 37, ¶ 7, 183 Vt. 616, 950 A.2d 464 (mem.) (where language of statute is plain and unambiguous, Court will enforce it according to its terms). This construct reasonably serves a petitioner’s statutory interest in assistance of counsel in civil proceedings, while requiring no second-guessing by courts, nor imposing any obligation, or need, for an attorney to declare and expose the relative weaknesses in a petitioner’s legal position.

¶ 12. It follows that when counsel avers to this Court that the “claims, defenses, and other legal contentions” presented in a PCR are not “warranted by existing law or nonfrivolous argument,” counsel may withdraw, and the state’s obligation to petitioner is fulfilled, under the statute. Counsel’s representation to the court that he or she cannot ethically advocate her client’s position, particularly when confirmed by the Defender's review, satisfies the statute. This approach implements 13 V.S.A. § 5233(a)(3), and avoids having the attorney “sandbag” the client’s case. See Gould, 2004 VT 46, ¶ 20 (criticizing attorney’s statement at PCR hearing that there was “not even colorful grounds, not even a scintilla of evidence” to support client’s position, and indicating that such statements converted attorney into client’s “de facto adversary,” unable to meet client’s expectations of zealous representation).

¶ 13. We presume that an attorney acts diligently in assessing a petitioner’s claims, and that, as an officer of the court, he or she is not misrepresenting the situation. See V.R.Pr.C. 3.3(a)(1); see also id. cmt., Rule 3.3(a)(1) (explaining that assertion purporting to be based on lawyer’s own knowledge, as in affidavit by lawyer or in a statement in open court, may properly be made only when lawyer knows the assertion is true or believes it to be true on the basis of reasonably diligent inquiry). We also take judicial notice of the fact that the Defender is not reluctant to press unpopular or arguably marginal claims to judgment. Courts rely daily on implicit attorney representations that their pleadings and advocacy are, without explanation, minimally supportable at law, and we are informed of no reason why the rare, but ethically bound, representation to the contrary should not be equally accepted in the limited circumstances of withdrawal from PCR proceedings. See, e.g., V.R.C.P. 11(b)(2) (by presenting pleading to court, attorney certifies that to the best of his or her knowledge, information, and belief, formed after inquiry reasonable under circumstances, “the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”).

¶ 14. This is not to suggest that lawyers are infallible. In the relatively few instances where the Defender withdraws, however, petitioners can continue with their litigation, albeit pro se, and may still prevail in the remedy sought if, in the court’s view, the claim is ultimately established. Moreover, if it appears to the trial court during pretrial proceedings that there may be substance and merit to a petition, the court may reappoint counsel to reevaluate the case accordingly.

¶ 15. There is no constitutional or statutory right to insist that counsel elaborate on their motions to withdraw, and it would undermine the intent of 13 V.S.A. § 5233(a)(3) to require counsel to do so. The time and resources spent in documenting and litigating the frivolousness of the underlying claim would likely compromise whatever remained of the lawyer-client relationship, while forcing the appointed counsel to walk an ethical tightrope. The same time and effort would likely consume some or all of the scarce resources available to the Defender sought to be saved by that office in denying representation, and sought to be saved by the Legislature in authorizing the Defender to deny service for lack of merit.

¶ 16. We thus hold that Attorney Fulcher is not required to file an Anders-\jke, affidavit before being allowed to withdraw. Her representation that she cannot continue to represent petitioner under the ethical rules and in light of 13 V.S.A. § 5233(a)(3) is sufficient, and her motion to withdraw is granted. No new counsel will be appointed at this time. Petitioner can proceed pro se and, as stated in a prior entry order, he must file his brief and printed case within thirty days of the date of this order.

¶ 17. Neither dissenting opinion is persuasive. Both treat this case as if petitioner had a constitutional right to counsel in PCR proceedings, rather than a limited statutory right. Both ignore the plain terms of 13 V.S.A. § 5233(a), and rely almost exclusively on constitutional right-to-counsel cases. As discussed above, the policy rationales underlying those cases are not applicable here as the right at issue is a limited statutory right, not a constitutional one. Out-of-state cases involving different statutory language are equally unpersuasive. Cf. post, ¶¶ 61, 63. The dissents also address issues beyond the scope of the withdrawal request presented here. We are asked to decide if Attorney Fulcher must file an Anders brief before she is allowed to withdraw — we are not asked to decide if Attorney Fulcher waived her right to withdraw, nor are we asked to evaluate the validity of the Defender’s screening process.² Cf. post, ¶¶ 30, 43-45.

f 18. Further, both dissents are erroneously premised on the formality of counsel being “assigned” by this Court. This Court’s “assignment” of counsel is based solely on whether a petitioner has demonstrated that he or she is a “financially needy” person. As previously discussed, a “needy person,” by statute, has the right to be represented by an attorney in a PCR proceeding only in eases that the attorney decides are nonfrivolous. Pursuant to an administrative order, the Court notifies the public defender “[i]n all cases where the right of a needy person to be represented by counsel exists, and is not waived,” and the Court appoints counsel if “the public defender is unable, due to a conflict of interest or otherwise, to represent the person in question,” among other circumstances. A.O. 4, § 3. Taken literally, no assignment should occur until the needy person has established his or her statutory right to counsel. Presumably, such assignment would follow the Defender’s review process and a determination by counsel that the case is not frivolous.

¶ 19. Relying on this administrative order, however, Justice Johnson advocates an approach that would create a Catch-22 for attorneys. Post, ¶ 52. Attorneys would not be allowed to withdraw once they are in the case, but, under her interpretation of A.O. 4, they cannot do anything to prevent being assigned. The result would be that counsel is always provided in PCR appeals, regardless of the merit of the case, rendering the amendment to § 5233 a nullity. See State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981) (in construing statute, Court must presume that Legislature did not enact meaningless legislation, and must not construe statute so as to render it a nullity).

¶ 20. The concern that we are abdicating some obligation owed to PCR litigants is unfounded. It is not for this Court to “approve” the attorney’s decision whether to represent his or her client, and there is no “rubber-stamping” involved. Cf. post, ¶¶ 24, 41. The attorney does not need this Court’s permission to determine whether to represent his or her client, and the statute does not require us to review the substance of counsel’s decision. A ruling on the motion to withdraw does not require us to inquire as to the merits of the case at all. It simply recognizes that the Legislature has left it to the attorney to decide which PCR cases to pursue, not this Court. This Court will conduct an independent review of the merits of the case when it is heard.³

¶ 21. This approach serves the purpose of the newly-amended statute and conserves scarce Defender resources. As one court has noted in addressing a similar issue:

It is not inappropriate to observe that in many places of the State offices of the public defender are now overburdened and struggle to fulfill their statutory obligations to provide representation for the indigent. This condition . . . explains in part the unwillingness of those given the important responsibilities of public defenders to assume obligations beyond what the Public Defender Act imposes.

Maloney, 498 N.E.2d at 1104-05.

¶22. This Court abdicates no responsibility because no such responsibility is assigned. As we have previously recognized, the Defender “has the primary responsibility for providing needy persons with legal services” under the PDA, and “[n]o other official or agency of the state may supervise the defender general or assign him duties in addition to those prescribed” under the relevant statutes. 13 V.S.A. § 5253(a); Russell v. Armitage, 166 Vt. 392, 403, 697 A.2d 630, 637 (1997) (citing this provision and concluding that plain language of PDA does not authorize courts to assign civil contempt proceedings to Defender even where trial court considers ordering incarceration, but recognizing court’s inherent power to assign counsel to represent persons constitutionally entitled thereto). We agree with the Maloney court’s observation that “[cjourts, when acting under the Public Defender Act, can make appointments only as the Act provides. ... If there are to be new responsibilities for the public defender’s office it will be for the legislature to define them.” 498 N.E.2d at 1104.

¶ 23. The language of the statute at issue in this case is clear, as is the legislative intent underlying this provision. There is no obligation or any inherent need to impose the additional burdens on counsel advanced by the dissenting opinions.

Attorney Fulcher’s motion to withdraw is granted. No new counsel will be appointed. Appellant shall file his brief and printed case within thirty days of the date of this order.

1 Petitioner’s application for public defender services was made on a standardized form and filed with the Franklin Superior Court in December 2007. This application requires a party to detail his or her assets and expenses so as to allow the court clerk and trial judge to determine if he or she is a “financially needy person.” See generally 13 V.S.A. § 5236. In this case, a line was checked on the form indicating that because “applicant is financially needy and has been charged with a serious offense, an attorney is assigned to represent the applicant as soon as any co-payment is paid to the court clerk.” Petitioner’s application was then filed in this Court, and in January 2008, the Supreme Court docket clerk sent a copy of this form to the Defender General’s Office. See 13 V.S.A. § 5235 (“If a . . . court determines that a person is entitled to be represented by an attorney at public expense, the . . . court . . . shall promptly notify the appropriate public defender.”); id. § 5272. In February 2008, attorney Fulcher filed a docketing statement and transcript order form with this Court. Transcripts were completed in April 2008. Following several extensions of time, counsel moved to withdraw in August 2008. As noted above, petitioner indicated that he did not oppose counsel’s request to withdraw, although he also sought the appointment of new counsel. Petitioner has since filed a pro se brief on the merits of his appeal.

2 No party raises the issue of the timeliness of Fulcher’s request; and given the absence of demonstrable prejudice, the delay does not concern us here.

3 While Justice Dooley complains that it is difficult to follow the pro se argument in this case, this is the same exact argument that the litigant insisted that Attorney Fulcher advance on his behalf. It is because Attorney Fulcher refused to make this argument that petitioner sought representation by another attorney.