In re Kimmick

Burgess, J.,

¶ 27. concurring. I concur in affirming the denial of this PCR petition. I also concur in upholding the trial court’s approval of PCR counsel’s motion to withdraw and the Defender General’s refusal to assign substitute counsel, but arrive at the latter two points more directly. The effectiveness of petitioner’s counsel at sentencing required no examination by the trial court, and the assignment and lack of assignment of subsequent attorneys to assist in the PCR need not have consumed any more hard-pressed criminal justice system resources, once petitioner refused relief. Alleging less than competent lawyering at his sentencing, petitioner filed a PCR complaint in April 2008 demanding resentencing. Within two months, petitioner’s then newly *64assigned PCR counsel secured the State’s agreement to a new sentencing hearing.2

¶ 28. Petitioner’s rejection of this offer — for all of the relief available to him — rendered continued litigation of his claim frivolous and wasteful, if not moot. See In re Unnamed Defendant, 2011 VT 25, ¶ 2, 189 Vt. 585, 15 A.3d 1039 (mem.) (noting that case becomes moot when, absent actual controversy, court “can no longer grant effective relief’ (quotation omitted)). No lawyer is obligated to advocate a frivolous cause. See Vermont Rule of Professional Conduct 3.1 (prohibiting attorneys from pressing meritless claims). Presumably in an abundance of caution for petitioner’s sake, the Defender General was generous to a fault to even consider extending additional assistance to petitioner after the relief requested was turned down. The Defender General’s denial of services, authorized under 13 V.S.A. § 5233(a)(3), was patently correct and required no more process.

¶ 29. Under these circumstances it was no denial of any right to leave petitioner to represent himself, and the withdrawal of counsel and denial of replacement counsel can be affirmed accordingly.

¶ 30. I am authorized to state that Judge Bent joins this concurrence.

As noted by the trial court, PCR counsel informed petitioner by letter in May 2008 that the state’s attorney had consented to a new sentencing hearing. In his letter to petitioner, PCR counsel advised: “Since the State is offering you everything substantively you are asking for (a remanded sentencing hearing based on ineffective assistance of counsel), it would be difficult to explain to the Court why you might refuse the offer.” Nevertheless, petitioner declined to settle for total victory.