In re Laura Hernandez

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2021 VT 65

No. 2020-176

In re Laura Hernandez Supreme Court

On Appeal from
Superior Court, Washington Unit,
Civil Division

February Term, 2021

Timothy B. Tomasi, J.

Matthew F. Valerio, Defender General, and Annie Manhardt, Prisoners’ Rights Office,
Montpelier, for Petitioner-Appellant.

Thomas J. Donovan, Jr., Attorney General, and Earl F. Fechter, Assistant Attorney General,
Montpelier, for Respondent-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. CARROLL, J. Petitioner appeals a civil division order granting the State

summary judgment in response to her petition for post-conviction relief (PCR), which alleged

ineffective assistance of trial counsel. We conclude that the undisputed facts demonstrate that any

error by counsel did not prejudice defendant and therefore affirm.

¶ 2. The following facts were undisputed for purposes of summary judgment. In

December 2006, petitioner was charged with two counts of selling or distributing heroin in

violation of 18 V.S.A. § 4233(b)(2). The charges were based on two sales of heroin by petitioner

to an informant. Petitioner’s first counsel was assigned in January 2007. The parties executed a

discovery stipulation, requiring all affirmative defenses, including entrapment, to be noticed within

ten days of the close of depositions. In September 2007, petitioner’s first counsel withdrew and
new counsel, Attorney Kolitch, was assigned. The parties engaged in extensive discovery,

including depositions of various witnesses. Defendant did not notice any affirmative defenses.

¶ 3. On the first day of trial, in January 2009, Attorney Kolitch filed proposed jury

instructions and in that proposal requested an entrapment instruction for the first time. The State

objected to the proposed instruction on the basis that defendant had not timely asserted the defense

in accordance with the parties’ scheduling order. The State argued that the late notice would

prejudice the State because it had not had time to adequately prepare evidence or witnesses to

respond to such a defense. The State also argued that there was insufficient evidence to support

the defense. The court ultimately declined to instruct on entrapment, concluding that defendant

had not made a timely request in accordance with the parties’ stipulation and that this delay

prejudiced the State.

¶ 4. At trial, the State presented the testimony of the informant, who testified as follows.

Petitioner and the informant were good friends and spoke frequently. They did favors for each

other. The informant took legal and illegal drugs for chronic pain. Prior to the drug sales that led

to the charges against defendant, the informant told petitioner that she was in extreme pain and

called multiple times a day asking petitioner to help her out. The informant denied that she was

begging or pressuring petitioner into providing illicit drugs. Petitioner did not present any

evidence at trial.

¶ 5. During deliberations, the jury sent a question to the court asking whether it should

consider whether petitioner was pressured by the informant to sell. The court answered: “You

may consider the evidence of whether or not the defendant was pressured by the confidential

informant and the terms of [the Informant Agreement] the same as you consider all other

evidence.” The jury found petitioner guilty.

¶ 6. Petitioner filed a motion for a new trial, arguing that the court erred in declining to

instruct on the entrapment defense. The court denied the motion, concluding again that petitioner’s

2
request was untimely and that the late notice was prejudicial to the State. In addition, the court

concluded that, in any event, the evidence did not support an instruction on entrapment. Petitioner

was sentenced and then filed a motion for sentence reconsideration. Before that motion was

resolved, petitioner entered a plea agreement resolving this and other cases. As part of the plea,

petitioner agreed to withdraw her motion for sentence reconsideration and to give up all rights of

appeal in connection with the criminal charges involved in the plea agreement.

¶ 7. In 2018, petitioner filed this PCR, arguing that Attorney Kolitch provided

ineffective assistance of counsel in her criminal case by failing to timely raise an entrapment

defense and to make constitutional arguments in support of allowing an instruction despite the late

notice, and that she was prejudiced by Attorney Kolitch’s failures. Both parties filed motions for

summary judgment. The State argued that the facts did not support a prima facie case for

ineffective assistance and that petitioner’s claims had been intentionally bypassed when petitioner

elected not to appeal from her criminal conviction.

¶ 8. The PCR court acknowledged that, typically, ineffective-assistance claims are not

waived by failing to raise them on appeal. The court concluded, however, that in this case

petitioner’s claim of ineffective assistance was intertwined with the legal argument regarding the

entrapment instruction insofar as petitioner alleged that Attorney Kolitch failed to meet

professional standards by not raising the entrapment defense in a timely manner consistent with

the scheduling stipulation. Because the question of whether the evidence warranted an instruction

was central to whether the late notice prejudiced petitioner, the PCR court concluded that petitioner

had deliberately bypassed her ineffective-assistance claim by waiving her right to appeal and

contest the legal question of whether the evidence was sufficient to support an entrapment defense.

Therefore, the court granted the State summary judgment. Petitioner filed this appeal.

¶ 9. This Court reviews a summary-judgment decision without deference to the trial

court and applies the same standard as the trial court. In re Barrows, 2007 VT 9, ¶ 5, 181 Vt. 283,

3
917 A.2d 490. Summary judgment will be granted when the undisputed material facts show that

a party is entitled to judgment as a matter of law. V.R.C.P. 56(a). A PCR provides a limited

remedy to collaterally challenge a criminal conviction. See 13 V.S.A. § 7131 (providing prisoners

with opportunity to challenge legality or constitutionality of sentence). A PCR is not a substitute

for a direct appeal. In re Laws, 2007 VT 54, ¶ 9, 182 Vt. 66, 928 A.2d 1210 (explaining scope of

PCR challenge). Therefore, “[a] PCR may not raise an issue that was litigated in the criminal trial

but deliberately bypassed on direct appeal.” Id. ¶ 10. The deliberate-bypass doctrine applies to

issues raised at trial and not argued on appeal unless the petitioner shows that the failure to raise

the issue on appeal “was inadvertent, that appellate counsel was ineffective, or that extraordinary

circumstances excused the failure to raise the issues on appeal.” In re Nash, 149 Vt. 63, 64, 539

A.2d 989, 990 (1987). In general, deliberate bypass does not apply to ineffective-assistance claims

because they may not be raised in a direct appeal. See State v. Lund, 168 Vt. 102, 105, 718 A.2d

413, 415 (1998) (explaining that claim for ineffective assistance of counsel “must be raised, if at

all, in the context of a petition for post-conviction relief”).

¶ 10. In this case, the trial court concluded that although deliberate bypass did not directly

apply, petitioner’s ineffective-assistance claim could not be raised because it was so intertwined

with her argument regarding the lack of an entrapment instruction. We do not reach the deliberate-

bypass or waiver arguments because we conclude that the undisputed facts do not support a prima

facie claim for ineffective assistance.

¶ 11. The standard for ineffective assistance of counsel is as follows:

To demonstrate ineffective assistance of counsel, a petitioner must
show by a preponderance of the evidence that: (1) his counsel’s
performance fell below an objective standard of performance
informed by prevailing professional norms; and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors,
the proceedings would have resulted in a different outcome.

In re Grega, 2003 VT 77, ¶ 7, 175 Vt. 631, 833 A.2d 872 (mem.).

4
 ¶ 12. Here, even if petitioner could prove the first part of the test—that her counsel acted

below an objective standard of performance in failing to timely request an entrapment

instruction—petitioner has failed to allege facts that support the second part of the ineffective-

assistance test. The undisputed facts demonstrate that there was insufficient evidence presented at

trial to warrant an entrapment instruction and therefore petitioner cannot show that counsel’s

alleged error affected the result at trial.

¶ 13. Entrapment is an affirmative defense which a defendant has the burden to establish

by a preponderance of the evidence. State v. George, 157 Vt. 580, 583, 602 A.2d 953, 955 (1991).

The test for entrapment is objective and requires a showing that a person involved with law

enforcement induced or encouraged the defendant to engage in the offense by “employing methods

of persuasion or inducement that create a substantial risk that such an offense will be committed

by persons other than those who are ready to commit it.” Id. (alteration omitted) (quotation

omitted). Under the objective test, a particular defendant’s reputation or predisposition to criminal

activity is not relevant. See State v. Wilkins, 144 Vt. 22, 27, 473 A.2d 295, 297-98 (1983). The

focus is on police conduct and its probable effect on a reasonable person. See George, 157 Vt. at

583, 602 A.2d at 955 (explaining elements of entrapment defense).

¶ 14. To be entitled to an instruction on an affirmative defense, a defendant “must

establish a prima facie case on each of the elements of the defense asserted.” State v. Knapp, 147

Vt. 56, 59, 509 A.2d 1010, 1011 (1986). If the evidence does not support a prima facie case, then

the defendant is not entitled to an instruction on entrapment at all. When the facts do support a

prima facie case for entrapment and there are factual disputes, the issue is a matter for the jury to

decide. Wilkins, 144 Vt. at 30, 473 A.2d at 299. If, however, there is a prima facie case and there

is no dispute about the facts, the trial court must determine whether entrapment exists as a matter

of law. Id.

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 ¶ 15. Here, petitioner did not present a prima facie case for entrapment and therefore she

was not entitled to an entrapment instruction. Even viewing the evidence in a light most favorable

to petitioner, the evidence does not show that law enforcement used methods of persuasion or

inducement so extreme that those actions created a substantial risk that an otherwise honest, law-

abiding citizen would be ensnared in wrongdoing.1 As set forth in more detail below, the evidence

shows that the informant was friends with petitioner, several times asked petitioner for drugs, and

that petitioner knew the informant sought the drugs to relieve her pain. These are not unusual or

extreme circumstances which provide enough evidence to meet the elements of a prima facie case

of entrapment and entitle petitioner to an instruction in her criminal trial.

¶ 16. The charges in this case were based on two heroin sales by petitioner to a

confidential informant. Because petitioner did not present any evidence in the criminal trial, the

only evidence came through the State’s witnesses, most importantly the confidential informant.

The undisputed facts and portions of transcript submitted in the PCR proceeding indicate as

follows. The informant testified that she and petitioner were good friends and spoke frequently in

the months prior to the drug sales. If petitioner was not available, the informant often left messages

for petitioner and sometimes petitioner did not return the calls. Petitioner knew that the informant

suffered from chronic pain and had post-traumatic stress disorder. Petitioner also knew that the

informant took drugs to relieve her physical pain. In the two days leading up to the first drug sale,

the informant called defendant six to eight times each day and left messages for defendant, stating

that she needed something for the pain and asking defendant for help. The informant testified that

she might have left a message with petitioner telling her “You gotta help me out. You gotta get

1
Because this is an appeal from a PCR proceeding and not a direct appeal, the “record” is
limited. The question is whether the undisputed facts in the PCR proceeding show that there was
evidence to support a prima facie case of entrapment and thus the court was required to give an
entrapment instruction. In determining this issue, we accept as true all facts as alleged if supported
by affidavits or other evidentiary material. Morisseau v. Hannaford Bros., 2016 VT 17, ¶ 12, 201
Vt. 313, 141 A.3d 745. The entire trial transcript was not entered into the summary-judgment
record and our review is confined to the assertions and evidence submitted below.
6
me something.” Not all of the informant’s telephone calls were recorded and law enforcement

was not aware of what the informant told defendant during the telephone calls or messages. The

informant denied that her repeated telephone calls and messages were “begging, luring, [or]

pressuring” petitioner2 because of the relationship between the informant and petitioner. The

informant testified that she and petitioner were close friends, and they had a habit of calling each

other dozens of times a day to chat and would leave messages if the other person did not answer.

The informant explained that the number of calls and the content of the conversations in the days

before the drug sales were not unusual for her and petitioner.

¶ 17. The informant arranged to buy heroin from petitioner on two occasions. During

the first controlled buy, the informant arranged to buy heroin from petitioner at a residence. An

undercover officer drove her to the arranged meeting spot. Petitioner provided the informant with

drugs, and then the informant introduced petitioner to the undercover officer. The second

controlled buy occurred a few days later and was for twenty bags of heroin. The informant and

the undercover officer met petitioner at a church. Petitioner had only fifteen bags of heroin. She

gave ten bags to the informant and the other five bags of heroin to the undercover officer after the

officer paid her for them. During each sale, petitioner provided 200 milligrams or more of heroin.

¶ 18. As indicated above, this Court has adopted the objective test for entrapment as

articulated in the Model Penal Code. Wilkins, 144 Vt. at 29, 473 A.2d at 299. This test focuses

on the conduct of the State, inquiring whether a law-enforcement officer, or those cooperating with

law enforcement, induced or encouraged another person to engage in criminal conduct through

persuasion or inducement that creates “a substantial risk that such an offense will be committed

by persons other than those who are ready to commit it.” Id. (quoting Model Penal Code

§ 2.13(1)(b)). Other jurisdictions that use an objective test for entrapment have considered various

2
The informant had an agreement with law enforcement that she would not beg, pressure,
or lure anyone.
7
factors in assessing whether there is evidence of entrapment, including whether law enforcement

used “continued pressure, appeals to friendship or sympathy, threats of arrest, an informant’s

vulnerability, sexual favors, or procedures which escalate criminal culpability.” People v.

Jamieson, 461 N.W.2d 884, 895-96 (Mich. 1990) (footnotes omitted); see People v. Gossett, 97

Cal. Rptr. 528, 529 (Ct. App. 1971) (concluding that trial judge did not have duty to instruct on

entrapment where “an agent of the police uses no more persuasion than is incident to any ordinary

sale, and defendant, the seller, is ready, willing and able to furnish a narcotic substance”);

Commonwealth v. Stokes, 400 A.2d 204, 206 (Pa. Super. Ct. 1979) (“There is no entrapment

where, as here, the police conduct, viewed objectively, did no more than afford appellant an

opportunity to make a sale of heroin.”). The focus is on whether police have created a substantial

risk that the offense will be committed by one who is innocently disposed.

¶ 19. In this case, petitioner contends that there was sufficient evidence of entrapment

because the informant called petitioner six to eight times in the two days before the first sale and

asked for drugs, knowing that petitioner was aware of the informant’s physical pain. The dissent

also concludes that there was sufficient evidence to warrant an instruction on entrapment given

petitioner’s friendship with the informant and the informant’s appeal to petitioner’s sympathy.

The dissent suggests that different inferences can be drawn from the informant’s testimony about

the calls, creating a dispute of fact to be decided by the jury. We conclude that, even viewing the

informant’s testimony in a light most favorable to petitioner, the evidence did not establish a prima

facie case of entrapment.

¶ 20. In looking at the evidence, even in the light most favorable to petitioner, the facts

regarding friendship and sympathy in this case simply do not rise to the level of persuasion or

coercion required to demonstrate a prima facie case of entrapment. An entrapment instruction is

not warranted in every situation where there is some remote possibility that the acts of the police

or their agents contributed to the commission of the crime. Entrapment occurs when the acts of

8
inducement or persuasion create “a substantial risk that such an offense will be committed by

persons other than those who are ready to commit it.” Wilkins, 144 Vt. at 29, 473 A.2d at 299

(emphasis added) (quotation omitted). At most, the evidence showed that the informant and

petitioner were friends, the informant attempted to contact petitioner several times, which was

customary in their relationship, and the informant appealed to petitioner’s sympathy. These

circumstances do not create a “substantial risk” that petitioner committed an offense she was not

otherwise inclined to commit.

¶ 21. Other cases finding enough evidence for entrapment based on friendship or

sympathy involve much more extreme examples of inducement, including repeated requests after

the defendant declines or is reluctant to participate, and evidence that a close relationship or

emotional situation persuaded or induced the criminal activity. For example, in a prosecution for

possession of heroin with intent to sell, the appellate court concluded that the trial court committed

reversible error in refusing to instruct on entrapment where the police secured the release of the

defendant’s girlfriend, an addict, from prison in exchange for her assistance as a confidential

informant, the girlfriend made repeated unsuccessful efforts to obtain heroin from the defendant,

and she finally received a small amount from the defendant after asking for heroin as a birthday

present. Weaver v. State, 370 So. 2d 1189, 1190-91 (Fla. Dist. Ct. App. 1979); see People v.

Alexander, 619 N.E.2d 863, 870 (Ill. App. Ct. 1993) (holding that defendant was entitled to

entrapment instruction in cocaine prosecution where police and paid agent initiated drug deal,

agent used considerable coercion to overcome defendant’s reluctance to become reinvolved with

drug world, and defendant made no profit from drug deal); People v Juillet, 475 N.W.2d 786, 798

(Mich. 1991) (holding that entrapment defense was established where defendant, who used but did

not sell drugs, was persuaded by incessant requests by police agent, who made incredible appeals

to their friendship, to engage in drug transaction); Commonwealth v. Lucci, 662 A.2d 1, 8 (Pa.

Super. Ct. 1995) (holding that facts supported entrapment as matter of law where police informant

9
contacted defendant less than two weeks after defendant completed drug rehabilitation, informant

approached defendant repeatedly, appealed to friendship with defendant and defendant’s sympathy

over death of informant’s mother, and informant instigated all transactions).

¶ 22. Here, the summary-judgment record does not include evidence of inducement or

persuasion that would warrant an entrapment instruction. The content and number of the telephone

calls and the facts surrounding the sales are not sufficient in this case to demonstrate the kind of

undue persuasion or coercion necessary to warrant an instruction on entrapment. The number of

call attempts alone is not enough to show undue persuasion. There was no evidence that the

repeated calls were necessary because petitioner avoided the informant’s calls, petitioner initially

declined to sell, or petitioner was reluctant to sell to the informant. Undue persuasion means more

than “repeated requests for contraband goods.” Murrell v. State, 304 S.E.2d 408, 408 (Ga. Ct.

App. 1983). Considering all of the undisputed facts describing the circumstances surrounding the

sales, the informant’s several attempts to contact petitioner, without any indication that these

repeated attempts were triggered by petitioner’s initial refusal or reluctance, do not provide

sufficient evidence of inducement to commit a criminal act.

¶ 23. Moreover, in the context of the undisputed evidence regarding the existing

relationship between the informant and petitioner, the repeated telephone calls were not coercive.

The undisputed evidence showed that the informant regularly called frequently because petitioner

did not always answer her telephone and that the informant and petitioner were in the habit of

talking to each other dozens of times a day. In addition, the informant called frequently because

she did not always reach petitioner. There was no evidence that petitioner attempted to avoid the

informant’s communications or expressed an intent not to communicate with the informant. The

informant’s actions did not rise to the level of inducement or encouragement that created a

substantial risk that petitioner would supply drugs if not already willing to do so. See State v.

Hayes, 170 Vt. 618, 620, 752 A.2d 16, 19 (2000) (mem.) (affirming trial court’s decision not to

10
instruct on entrapment where informant “merely provided the opportunity” for defendant to supply

drug).

¶ 24. The dissent asserts that considering whether petitioner was reluctant to provide

drugs to the informant is not a fact that should be considered under our objective test for

entrapment. As indicated above, in contrast to the subjective test, which focused on a defendant’s

predisposition to commit a new crime, the objective test for entrapment focuses primarily on the

investigative and evidence-gathering procedures used by the governmental agents. Wilkins, 144

Vt. at 29, 473 A.2d at 299. The objective test precludes reliance on a defendant’s criminal history

to infer a willingness to commit a crime again. The objective test does not require, however, that

the circumstances surrounding the crime should be ignored.3 This information is important in

evaluating whether law enforcement acted coercively under the circumstances of the case. As to

cases involving drug sales and informants, courts have looked at the tactics of police in relation to

the defendant’s actions, the quality of the relationship between the defendant and the informant,

3
Although it is nonprecedential, the unpublished order of this Court in State v. Atwood,
No. 2016-203, 2017 WL 2963080 (Vt. June 26, 2017) (unpub. mem.),
https://www.vermontjudiciary.org/sites/default/files/documents/eo16-203_1.pdf, well illustrates
the importance of considering the circumstances of the crime, including the defendant’s behavior
in response to police action, in evaluating whether there is a prima facie case of entrapment. In
that case, the defendant was charged with luring a child after he arranged online to meet with a
person he believed to be thirteen, but who was in fact a police officer. In evaluating the defendant’s
motion to dismiss based on entrapment, the trial court considered the fact that the defendant had
initiated communication online about sex. On appeal, the defendant argued that the trial court
incorrectly applied a subjective test by considering that the defendant had initiated the discussion
of sex. This Court affirmed and explained:

Although the [entrapment] test focuses on police conduct, the
critical question is whether the police employed methods of
persuasion or inducement creating a substantial risk that defendant
would commit a crime that he was otherwise not ready to commit.
In answering this question, courts may examine a defendant’s
communications and conduct while interacting with government
agents with respect to the circumstances of the charged offense,
which is what the court did here.

Id. at *3.
11
and the defendant’s response to the requests for drugs to ascertain whether the police action

improperly encouraged or induced criminal activity. See People v. Matthews, 371 N.W.2d 887,

892-93 (Mich. Ct. App. 1985) (evaluating whether entrapment occurred by looking at quality of

relationship between informant and defendant and considering defendant’s initial refusal to sell).

To determine whether law enforcement employed improper persuasive tactics, it is important to

understand how the initial request to sell was received and whether law enforcement or an agent

of law enforcement continued to persuade or pressure the defendant even in the face of reluctance

or refusal. Indeed, the cases detailed by the dissent all examine the particulars of the relationship

between the informant and the defendant as well as whether the defendant’s behavior indicated a

willingness to sell.

¶ 25. Here, defendant failed to provide evidence of a prima facie case of entrapment.

Consequently, the summary-judgment record indicates that, even if petitioner’s trial counsel had

made a timely request for an entrapment instruction, petitioner would not have been entitled to the

instruction. Therefore, petitioner failed to prove that, even if counsel’s performance was

ineffective, there was a reasonable probability that without the error there would have been a

different outcome at trial.

Affirmed.

FOR THE COURT:

Associate Justice

¶ 26. ROBINSON, J., dissenting. Because I conclude that there was sufficient

evidence of entrapment in connection with petitioner’s underlying prosecution to submit the

question to the jury, I respectfully dissent. Even applying the objective test that we have adopted

in Vermont, the question of entrapment is ordinarily left to the jury unless there is no dispute as to

the facts or the inferences to be drawn from them. In this case, a jury could have concluded based
12
on the confidential informant’s close friendship with petitioner, her appeals to sympathy, and her

persistence in calling petitioner, that the government’s methods created a substantial risk that an

offense would be committed by someone who was not otherwise ready to commit it. The

majority’s conclusion to the contrary fails to recognize that a jury could conclude that the baseline

frequency of informant’s contact with petitioner supports the entrapment defense, and relies on

petitioner-specific considerations that are not proper considerations in determining whether

petitioner was entitled to a jury instruction. I elaborate on these considerations below.

¶ 27. The question of entrapment is ordinarily one for the jury. State v. George, 157 Vt.

580, 584, 602 A.2d 953, 955 (1991). Because Vermont has adopted an objective test for evaluating

entrapment—a test that focuses objectively on the conduct of law enforcement rather than on the

subjective state of mind of the individual defendant—this proposition is not obvious. As we

recognized in State v. Wilkins when we first adopted the objective test, judges and commentators

have taken a range of positions as to whether the objective test should be applied by the court or

the jury. 144 Vt. 22, 30, 473 A.2d 295, 299 (1983). Some have argued that in order to give law

enforcement guidance as to the line between legitimate enforcement strategies and entrapment,

judges, not juries, should decide entrapment questions. Id. (citing Sorrells v. United States, 287

U.S. 435, 455 (1932) (Roberts, J., concurring), and Sherman v. United States, 356 U.S. 369, 385

(1958) (Frankfurter, J., concurring)). Others have argued that juries are well-suited to evaluate

whether conduct is likely to induce people who are not otherwise “ready to commit” crimes to do

so, and that “the entrapment defense frequently involves factual conflicts and issues of credibility

that are best suited to jury determination.” Id. (citing Model Penal Code § 2.10(2) cmt. 5 at 22

(Tent. Draft No. 9 1959) and Note, Entrapment, 73 Harv. L. Rev. 1333, 1344 (1960)).

¶ 28. In George, this Court squarely aligned with the latter view, explaining, “The

question of entrapment is ordinarily left to the jury because [t]he test involves judgments

concerning the motivations of people who may not be ‘ready to commit’ such crimes and juries

13
have ‘particular claim[s] to competence’ in making such judgments.” 157 Vt. at 584, 602 A.2d at

955 (quotation omitted). Although, as the majority notes, we held in Wilkins that the court should

determine whether entrapment exists when there is no dispute as to the facts, 144 Vt. at 30, 473

A.3d at 299, we clarified in George that “the entrapment issue must go to the jury even in the case

of undisputed facts if there is a dispute as to the inferences to be drawn from them,” 157 Vt. at

584, 602 A.2d at 955. In George, the facts themselves were not in dispute; the conversation

between defendant and the undercover law-enforcement officer whom he allegedly solicited for

the purpose of prostitution had been recorded and was played for the jury. But this Court ruled

that the trial court did not err in declining to find entrapment as a matter of law because it concluded

that a reasonable jury could find that the police officer’s persistent questioning of defendant which

elicited his incriminatory statements was merely designed to clarify the relationship he was seeking

to establish. Id. George, rather than Wilkins, reflects the current state of our law concerning the

roles of judge and jury with respect to an entrapment defense.

¶ 29. Not every claim of entrapment is for the jury to decide. There may be cases in

which a court can determine as a matter of law that law enforcement conduct amounted to

entrapment. See, e.g., Commonwealth v. Wright, 578 A.2d 513, 519, 523 (Pa. Super. Ct. 1990)

(recognizing that whether entrapment has occurred is usually question for jury, but concluding

based on undisputed evidence that police conduct amounted to entrapment as matter of law). And,

as with any other defense, judges must decide whether a defendant has identified sufficient

evidence to warrant a jury instruction on entrapment. See, e.g., State v. Hayes, 170 Vt. 618, 619-

20, 752 A.2d 16, 19 (2000) (mem.) (upholding trial court’s dismissal of entrapment defense where

there was no evidence that informant to whom defendant agreed to sell marijuana had employed

any method of inducement to create risk that someone not ready to supply him with marijuana

would do so); State v. Merritt, 149 Vt. 529, 533, 546 A2d 791, 793 (1988) (affirming trial court’s

refusal to instruct jury regarding entrapment where officer encountered obviously intoxicated

14
driver parked at rest area, warned driver not to drive before sobering up, and left). But in general,

where there is evidence that could support but does not compel the conclusion that entrapment

existed, the entrapment determination should be left to the jury. See, e.g., State v. Vanderlas, 145

Vt. 135, 138, 483 A.2d 263, 265 (1984) (holding that evidence that police, knowing defendant was

drunk, drove her to her car in dark and deserted parking lot near her place of employment, left her

alone, and told her not to drive for two hours was sufficient to raise question of entrapment for the

jury).

¶ 30. Here, there was sufficient evidence that the police informant used tactics associated

with entrapment to raise the question for a jury to decide. Courts have recognized that appeals to

friendship and sympathy are among the inducements that may amount to entrapment. See Bruce

v. State, 612 P.2d 1012, 1014 (Alaska 1980) (affirming trial court’s dismissal of entrapment

defense where undercover police officer “did not have a close personal friendship with [defendant]

which he could have exploited for the purpose of inducing the defendant’s participation” and did

not “make repeated appeals to the defendant’s sense of obligation or sympathy”); People v.

Johnson, 647 N.W.2d 480, 498 (Mich. 2002) (applying objective test and listing factors to consider

in determining whether governmental activity would impermissibly induce criminal conduct,

including “whether there existed appeals to the defendant’s sympathy as a friend”); State v. Nagel,

279 N.W.2d 911, 916 (S.D. 1979) (identifying, in context of subjective test for entrapment, “(1)

Appeals to friendship; (2) Sympathy; (3) Offers of excessive amounts of money; and (4) Appeal

to a narcotic’s need” as the “four principal inducements which may locate the intent in the

government rather than the accused”).

¶ 31. In some cases, tactics that leverage a friendship to induce criminal conduct can

amount to entrapment as a matter of law. For example, in Wright, a confidential informant

cultivated a friendship with a defendant in order to get the defendant to buy marijuana for him.

578 A.2d 513. In concluding that defendant was entrapped as a matter of law, the court reasoned:

15
 We are guided by our statements . . . that impermissible police
activity may include appeals to friendship. Here, [informant]
feigned friendship with [defendant] in order to manipulate him into
purchasing marijuana as a favor to [informant]. [Informant], acting
in cooperation with the police, induced and encouraged [defendant]
to purchase the marijuana for him. This inducement and
encouragement was accomplished by [informant’s] deception of
[defendant]. [Informant] purposefully appealed to [defendant] as a
friend and [defendant] responded to [informant’s] requests for
favors as would any friend. For “to friendship every burden’s light.”
The police, acting through [informant], induced [defendant’s]
conduct by fabricating the stories [informant] told [defendant] in
order to lead [defendant] to believe that [informant] himself could
not purchase the marijuana. [Informant’s] appeals to friendship
constituted methods of persuasion which created a substantial risk
that [defendant] would, solely as a favor to [informant], purchase
the marijuana.

Id. at 521-22 (footnote omitted). The dissenting judge did not express any doubt that this evidence

could support an entrapment defense but would have left the issue of entrapment to the jury. Id.

at 523 (Cavanaugh, J., dissenting). Similarly, in a case cited by the majority, the court found

entrapment as a matter of law. See Commonwealth v. Thompson, 484 A.2d 159, 166 (Pa. Super.

Ct. 1984).

¶ 32. Here, as the majority acknowledges, the record reflects that the government’s

cooperating informant was “quite good” friends with petitioner. The informant testified, “Our

phones were almost glued to our ears. That’s how tight we had gotten. I mean it wasn’t, you

know, two or three times a day we talked. We talked dozens of times a day.” There were times

when the informant explained to petitioner that on account of her physical disabilities, she was in

such extreme pain that she had difficulty getting around. At the time of the informant’s calls to

petitioner, the informant had been talking with petitioner about how much pain she was in. The

evening before the drug buy underlying the charges against petitioner, her close friend (the

informant) phoned her and left messages six to eight times, and on the day of the buy, the

friend/informant called petitioner and left messages another six to twelve times. In her messages,

the informant conveyed that she was in a lot of pain and it was extremely important for petitioner

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to get hold of her to help her. In one message she said, “I need you to come through for me. Please

call me.” In another, she said, “Please, please call me. This is urgent. You’ve got to call me.”

She testified that she “could have very well” have left a message saying, “You gotta help me out.

You gotta get me something.” A jury could reasonably conclude that these repeated, urgent

messages from a very close friend in intense pain calling upon petitioner to “come through for me”

and “help me out” constitute the kind of inducement that creates “a substantial risk that . . . an

offense will be committed by persons other than those who are ready to commit it.” George, 157

Vt. at 583, 602 A.2d at 955 (quotation omitted).

¶ 33. The majority’s contrary reasoning is unpersuasive because the informant’s

testimony concerning the frequency of their daily telephone conversations could reinforce rather

than undermine the coercive nature of her pleas for help by corroborating the intensity of the

defendant’s friendship with the informant at the time of the informant’s desperate appeals. The

evidence could suggest that the informant pleading for defendant’s help was not just a casual

acquaintance, but was a close friend with whom defendant had daily contact. Ultimately, the

significance of the baseline frequency of contact between defendant and informant is a question

for the jury, but the fact that the informant had an established pattern of frequent contact with

defendant does not preclude a reasonable jury from concluding that the State’s conduct here

amounted to entrapment.

¶ 34. Likewise, the majority’s assertions that there was no evidence that petitioner was

reluctant, and that she provided drugs right away when she arrived for the drug buy, improperly

shift the focus from the conduct of law enforcement, and the informant they relied upon to entice

petitioner to sell drugs, to petitioner’s own inclination—a shift that would make sense if Vermont

followed the “subjective test” in assessing entrapment defenses, but that is inconsistent with the

objective test we have adopted. See id. at 583-84, 602 A.2d at 955 (explaining that subjective test

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focuses on defendant’s predisposition to commit crime, in contrast to objective test, adopted by

this Court, which focuses on actions of government).

¶ 35. Finally, the cases cited by the majority support petitioner’s case by reinforcing that

inducing criminal activity through urgent appeals to an individual’s friendship and sympathy can

constitute entrapment. Applying an objective test, the Michigan Supreme Court concluded as a

matter of law that the defendant had been entrapped where a police informant cultivated a

friendship with the defendant, did favors for him, took him out to eat, hosted him as a guest in the

informant’s home, and repeatedly sought to acquire drugs from or through him. People v. Juillet,

475 N.W.2d 786, 798-99 (Mich. 1991). The court concluded that even though the friendship did

not cover a period of years, the informant and defendant saw each other on a daily basis for several

months, and the record supported the defendant’s claim that the informant appealed to his

friendship. Id. at 799. The actions of the police informant in the Juillet case—cultivating and

leveraging a much shorter-lived friendship to induce criminal acts—are not appreciably more

likely to induce a law-abiding person to engage in criminal acts than the desperate pleas of a close

friend in this case.

¶ 36. Likewise, in Weaver v. State, a Florida appeals court concluded that a jury could

find that defendant was entrapped where his girlfriend, covertly serving as a police informant,

leveraged the parties’ relationship to induce the conduct the defendant was charged with. 370

So.2d 1189 (Fla. Dist. Ct. App. 1979). In that case, immediately upon her release from jail the

girlfriend contacted the defendant and sought to obtain heroin from him. She contacted him with

her request for heroin on three consecutive days, and on the fourth day, which was her birthday,

she went to his home. While there, after celebrating for about an hour, the girlfriend again asked

for heroin as a birthday present. The defendant delivered a small amount to her and, on that basis,

was charged with possession of heroin with intent to sell or deliver. Apparently applying a

subjective test, the court reversed the defendant’s conviction on the basis that the trial court erred

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in declining an entrapment instruction. Id. at 1191. The police informant’s conduct in Weaver—

leveraging her relationship as the defendant’s girlfriend and requesting the heroin as a birthday

present—is not conduct that is appreciably more likely to induce an individual who is not otherwise

inclined to commit a crime than the frantic and persistent pleas of a close friend in pain.

¶ 37. The police conduct in the case of Commonwealth v. Lucci was concededly more

egregious than this case because the informant induced the defendant to return to drug use within

weeks of his release from a drug rehabilitation program, but the decision does rely on the

informant’s appeals to friendship and sympathy as significant factors supporting the court’s

conclusion as a matter of law that the defendant was entrapped. 662 A.2d 1, 6-7 (Pa. Super. Ct.

1995).

¶ 38. The case of People v. Alexander is less helpful because in that case the Illinois

appellate court applied a subjective test that focused on the defendant’s predisposition, or lack

thereof, to commit the offense. 619 N.E.2d 863, 869 (Ill. App. Ct. 1993). Nevertheless, the

opinion provides some support for petitioner’s case here insofar as the court concluded that the

defendant was entitled to a jury instruction on entrapment based in part on the facts that the police

informant who induced him to help find and buy drugs was a close friend and the informant and

an undercover police officer initiated the various transactions. Id. at 870.

¶ 39. To establish prejudice to support a PCR petition based in the ineffective assistance

of counsel, a petitioner must show not only that counsel’s performance was deficient, but also that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” In re LaBounty, 2005 VT 6, ¶ 7, 177 Vt. 635, 869 A.2d

120 (mem.) (quotation omitted). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. (quotation omitted). For the above reasons, based on the evidence

in the summary-judgment record viewed in the light most favorable to defendant, I conclude that

if defense counsel had not failed to provide timely notice of petitioner’s entrapment defense, the

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trial court would have been required to give the entrapment instruction. Accordingly, I would

reverse the trial court’s award of summary judgment to the State.

¶ 40. I am authorized to state that Chief Justice Reiber joins this dissent.

Associate Justice

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