By Andy Delaney 

Once again, this year I’m going to try to keep this blog updated regularly. No promises. Work happens. Trials happen. But I’ll make an effort.   

One case from SCOV on January 5, 2024. It’s about plea negotiations in
criminal cases and what constitutes ineffective assistance of counsel in that
realm. Petitioner was charged with a sexual-assault-on-a-minor charges that
carries a 25-to-life mandatory minimum. The state made an offer for a plea to a
lesser charge of aggravated sexual assault with a ten-to-life sentence, split
with five years to serve. His first lawyers discussed the plea deal and he
rejected it. But they apparently didn’t talk about the mandatory
25-year-mandatory-minimum if convicted of the charged offense. 

Petitioner hired
another lawyer. On the way to a jury, “[P]etitioner’s defense suffered several
setbacks, which the PCR court found left petitioner with ‘virtually no chance
of being acquitted at trial.’” Briefly, motions to suppress weren’t granted (or
filed) and petitioner’s expert was limited in testifying. On the morning of
trial, the state renewed its offer, but the PCR court found that petitioner’s
lawyer didn’t tell petitioner that the deal was in his best interests—and
didn’t explain the mandatory minimum risk of conviction. And petitioner
eighty-sixed the deal.

Can you guess what happened next? Here’s a hint: the jury wasn’t
out very long. Petitioner filed a PCR petition and the PCR court found that the
second attorney’s assistance was ineffective and prejudicial as
to the plea offer but that given petitioner’s repeated post-conviction claims
of innocence, false confessions—that he’d be committing perjury by pleading
guilty—and the like, it was unlikely that the trial court would have accepted a
guilty plea. Thus, the PCR court dismissed petitioner’s petition. Petitioner
appeals.

The SCOV majority concludes that the PCR court was required to
confine its inquiry to the information available at the time of the potential
plea, and not to consider petitioner’s post-conviction refusal to admit guilt
in determining whether the trial court would have accepted the guilty plea. Is
there more to it? Sure, but that’s the gist.

Justice Eaton—joined by Justice Carroll—dissents. He reasons that
petitioner’s second attorney’s counsel was not ineffective, and even if it
were, it’s doubtful that petitioner would’ve accepted the plea anyway, so
petitioner fails to demonstrate meaningful prejudice. From the dissent’s
perspective, a defense attorney is not ineffective for failure to “sell” a plea
deal to a client. In re Kolts, 2024
VT 1.