Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2012-354
APRIL TERM, 2013
In re Allen Rheaume } APPEALED FROM:
}
} Superior Court, Franklin Unit,
} Civil Division
}
} DOCKET NO. S348-11 Fc
Trial Judge: Martin A. Maley
In the above-entitled cause, the Clerk will enter:
Petitioner appeals the court’s denial of his petition for post-conviction relief (PCR). On
appeal, petitioner argues that the court erred in granting the State summary judgment on his
claims that he received ineffective assistance of counsel during his probation violation hearing.
We affirm.
In June 2004, petitioner pled guilty to open and gross lewd or lascivious conduct and was
sentenced to 55 days to life, all suspended but 55 days to 24 months. He was placed on
probation with several conditions, including that he not buy, have or use regulated drugs, that he
submit to random urinalysis, and that he attend treatment and counseling as directed by his
probation officer. Petitioner was charged with several probation violations and, in January 2008,
the court held a hearing. Petitioner’s probation officer testified at the hearing that in July 2007
petitioner admitted to using marijuana and that petitioner tested positive for marijuana in August
2007. The probation officer also testified that petitioner missed two appointments with his
counselor in July 2007. There was testimony that the probation officer discouraged petitioner
from attending counseling sessions under the influence. Petitioner introduced the Department of
Corrections (DOC) drug-testing policy at the hearing. The court found petitioner had violated
his conditions and imposed the underlying sentence. On appeal, this Court affirmed. State v.
Rheaume, No. 2010-156, 2010 WL 7789280 (Vt. Dec. 14, 2010) (unpub. mem.),
http://www.vermontjudiciary.org/d-upeo/eo10-156.pdf.
In August 2011, petitioner filed this PCR petition alleging that his counsel had provided
ineffective assistance during the probation violation hearing in January 2008. Petitioner claimed
that counsel’s performance was deficient because he failed to make objections to challenge
admission of certain evidence. These included challenging the admission of: petitioner’s
statement in July 2007 admitting to using marijuana; petitioner’s positive drug test from August
2007; the probation officer’s statement that counseling sessions were required by petitioner’s
probation; and allegedly false statements made by petitioner’s probation officer at the hearing.
The parties filed cross-motions for summary judgment, and the court held a hearing on
those motions. In a written order, the court rejected petitioner’s claims, and granted the State
summary judgment. The court found that counsel’s performance was not deficient as a matter of
law because in all instances the evidence was admissible and there were no grounds for
objection. Petitioner appeals.
On appeal from the grant of a motion for summary judgment, this Court applies the same
standard as the trial court. White v. Quechee Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999).
Summary judgment is appropriate if there are no issues of material fact and a party is entitled to
judgment as a matter of law. V.R.C.P. 56(a); White, 170 Vt. at 28. To make a claim for
ineffective assistance of counsel, a petitioner must show by a preponderance of the evidence that
fundamental errors rendered his conviction defective. In re Grega, 2003 VT 77, ¶ 7, 175 Vt. 631
(mem.). Ineffective assistance requires petitioner to show first that counsel’s performance fell
below an objective standard of reasonableness and second that the deficient performance
prejudiced the defense. Id.
On appeal, petitioner reiterates arguments made in the trial court, arguing that counsel
rendered ineffective assistance for failing to object to admission of evidence. The trial court
analyzed each of the claims in detail, explaining why the challenged evidence was admissible
and therefore why counsel was not deficient in failing to object. Having reviewed the claims, we
agree that because the evidence was admissible as a matter of law petitioner failed to present a
prima facie case that counsel’s performance fell below the prevailing standard. See In re King,
133 Vt. 245, 250 (1975) (“The decision of a trial lawyer not to make an objection is a matter of
trial tactics, not evidence of incompetency.”).
First, petitioner asserts that counsel was deficient in failing to challenge admission of his
July 2007 statement admitting to drug use and his drug test taken on August 8, 2007 based on
reasonable suspicion. Petitioner asserts that his probation officer failed to follow DOC
guidelines for drug testing as set forth in Directive 409.04. Petitioner claimed that the July
statement was not admissible because the directive states that drug test results taken for treatment
Ordinarily, expert testimony is required to demonstrate ineffective assistance of
counsel. See Grega, 2003 VT 77, ¶ 16. Only in “rare situations” can an ineffective assistance
claim be brought without an expert where the lack of care is so obvious that only common
knowledge and experience are required to understand it. Id. In this case, there was no expert
opinion offered. Petitioner represented himself in the trial court and moved for appointment of
an expert in November 2011. A pro se petitioner may request appointment of an expert, but
must demonstrate the necessity for services by showing “how a legal expert would assist
petitioner to prove that specific shortcomings in his representation at trial fell below the level of
competence for the particular task at issue.” In re Barrows, 2007 VT 9, ¶ 9, 181 Vt. 283. The
trial court’s file and docket entries do not show that the State filed a response or that the court
resolved this motion. It is possible that the court addressed the motion at its April 6, 2012 status
conference, but petitioner has not provided a transcript of this hearing. In any event, petitioner
does not complain of inaction on his request for counsel, and the merits of his perceived missed
opportunities for challenging the evidence at his probation hearing did not fail for lack of
expertise.
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may not be used for disciplinary or criminal sanctions. The PCR court found there was no
deficient performance of counsel because petitioner’s admission to using marijuana did not fall
within the language of the directive, which prohibited the result of “treatment tests” from being
used for disciplinary sanctions and an admission is not a test. The application of the directive to
the undisputed facts is a matter of legal construction. We agree that petitioner’s admission was
not the result of a “test” excludable under the directive.
As to the August test, petitioner argues that his counsel rendered ineffective assistance for
failing to object to its admission because, he asserts, the test was invalid since there was no
supervisor approval as required by the DOC directive. Defense counsel did raise the issue at the
probation-violation hearing, but the probation officer responded that she was a supervising
officer and as such was entitled to issue and approve a test. Whether the officer’s authority met
the directive’s requirement was, again, a legal determination, and the PCR court’s conclusion
that the explanation obviated further objection was no error.
Next, petitioner asserts that his counsel rendered ineffective assistance in failing to
contest that petitioner was required to and that he was notified of the requirement that he attend
counseling as a condition of his probation. Petitioner’s probation officer testified that she
required petitioner to attend the counseling. At the probation violation hearing, counsel cross-
examined the probation officer about whether petitioner received adequate notice of this
requirement. Trial counsel is afforded great latitude in making decisions regarding trial strategy,
including the scope and depth of cross-examination. In re Mecier, 143 Vt. 23, 31-32 (1983).
Petitioner has not explained what other tactics counsel should have attempted to challenge the
probation officer’s testimony. Petitioner does assert that counsel failed to review a file from his
CRASH counseling program and that his file would have shown his counseling was voluntary
rather than mandatory. As the trial court explained, the CRASH counseling was separate from
the counseling required by the probation officer; therefore obtaining this file would not have
contradicted the probation officer’s testimony or undermined her credibility on the issue of
whether petitioner was required to attend counseling.
Finally, petitioner reasserts the arguments set forth above by contending that his
probation officer provided false information and perjured testimony. His disagreement with the
officer’s and the court’s reading of the DOC directive does not render her construction a
deliberate falsehood. Petitioner fails to demonstrate, moreover, how the alleged false testimony
translates into ineffective assistance of counsel. Counsel aggressively questioned the probation
officer at the probation-violation hearing, including asking about whether petitioner was required
to attend counseling, had attended counseling, and whether the August test complied with DOC
directives. Petitioner offers no reason why failure to acquire the CRASH file amounted to error
on counsel’s part.
Petitioner raises two additional ways his counsel should have challenged the admissibility
of the August test. First, petitioner claims that pursuant to DOC directive the authorization for
the test should have been accompanied by a document outlining the reasonable suspicion to
support the test and none was present. Petitioner also appears to argue that the August search
violated his rights under the Fourth Amendment of the Federal Constitution and Article 11 of the
Vermont Constitution because it was conducted without a warrant. The first argument has
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morphed from when it was originally presented. As originally presented, petitioner challenged
the lack of documented supervisory approval for the search, a claim we addressed above.
Although petitioner mentioned the lack of a “documented reason” in passing, he never claimed
that the law required such a statement. This claim is unpreserved. See In re Lambert, 173 Vt.
604, 608 (2002) (mem.).
The second argument is addressed by petitioner’s admission to using marijuana in July.
This admission gave reasonable suspicion to conduct the test in this case, and therefore there was
no obvious ground for the attorney to object to the test on those grounds. See State v.
Lockwood, 160 Vt. 547, 558 (1993) (concluding no Fourth Amendment violation where search
of probation officer conducted based on reasonable suspicion).
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
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In re Allen Rheaume
Combined Opinion