CHAPTER 6

THE RIGHTS TO COUNSEL AND SELF-REPRESENTATION

§ 6.01 Sources of the Right - The Constitutional Right

§ 6.02 - The Public Defender Statute

§ 6.03 Stages and Proceedings at Which the Right to Counsel

Attaches - Stages of the Criminal Proceeding

§ 6.04 - Prior Proceedings in Recidivist Cases

§ 6.05 - Juvenile Proceedings

§ 6.06 - Mental Commitments

§ 6.07 The Right to a Particular Attorney and To Change Counsel

§ 6.08 Rights to Defense "Services and Facilities"

§ 6.09 Implementing Assigned Counsel Rights

§ 6.10 - Eligibility

§ 6.11 - Public Defenders, Assigned Counsel, "Ad Hoc" Counsel

§ 6.12 - Payment of Assigned Counsel

§ 6.13 Retained Counsel

§ 6.14 Waiver of Counsel and the Right of

Self-Representation - The Right To Waive Counsel

§ 6.15 - Requirements of a Valid Waiver of Counsel:

Constitutional Waivers

§ 6.16 - Waivers of Statutory Counsel

§ 6.17 - The Right To Rescind a Counsel Waiver

§ 6.18 The Risks and Rights of Self-Representation

§ 6.19 - Standby Counsel

§ 6.20 - Facilities of Self-Representation

§ 6.21 - The Judge's Sua Sponte Role

§ 6.22 The Roles of Client and Counsel

§ 6.23 Ineffective Assistance of Counsel - The Standard of Competency

§ 6.24 - The Requirement of Prejudice

§ 6.25 - Presumptive Ineffectiveness

§ 6.26 - Conflict of Interest

§ 6.27 - How Raised

§ 6.28 Withdrawal of Counsel

§ 6.01

Sources of the Right - The Constitutional Right

The constitutional right to counsel guaranteed by the sixth and fourteenth amendments and by chapter I, article 10,{1} includes the right to be represented by assigned counsel in all criminal cases where the defendant faces a potential "loss of liberty."{2} The potential must be actual and not merely theoretical; the court must assign counsel when the proceeding may or will result in loss of liberty, and not in every case where loss of liberty is a statutorily authorized penalty.{3} Keying the right to the potential, rather than the merely authorized, sanction requires the judge to make a prediction at the outset of the case as to what the ultimate outcome will be, an awkwardness which was noted by the dissenters in Scott v. Illinois,{4} and by the concurring opinion in Argersinger v. Hamlin.{5} Judges have some leeway to change their minds, however. A sharply divided Vermont Supreme Court in State v. Duval{6} upheld a brief prison sentence in a case where the defendant was denied counsel at the Rule 5 hearing, on the ground that no incarceration would be imposed, and pleaded guilty pro se before a different judge, who (deeming incarceration appropriate) assigned counsel and offered him the chance to withdraw his plea.

The right to a lawyer is said to depend on the potential for imprisonment,{7} but an important unsettled question is whether a judge can impose a suspended sentence and a term of probation without assigning counsel. In Vermont probation is always accompanied by a suspended prison sentence{8} and some courts have held that such conditionally suspended terms require assignment of counsel.{9} Probation itself involves distinct losses of liberty,{10} and the deprivation is arguably serious enough to require assigned counsel.{11} If probation can be constitutionally imposed without counsel, revocation and imposition of the previously suspended sentence (or any part of it) is arguably not a constitutionally permissible option.{12}

The constitutional right to counsel on appeal, which stems from the due process and equal protection clauses, not from the sixth amendment,{13} extends only to a defendant's first appeal as of right{14} and not to discretionary appeals{15} or collateral postconviction proceedings.{16}

§ 6.02

- The Public Defender Statute

Vermont has implemented and supplemented the constitutional right to counsel in criminal proceedings with a liberal public defender statute,{17} which grants the right of a "needy person" who is "detained . . . without charge or judicial process, or who is charged with having committed or is being detained under a conviction of a serious crime" to be "represented by an attorney to the same extent as a person having his own counsel[,]"{18} including the right "to be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney. . . ."{19}

In line with Scott the term "serious crime" includes any felony, and any misdemeanor punishable by a fine of more than $1000 or by "any period of imprisonment unless the judge, at the arraignment but before entry of a plea, determines and states on the record" that neither of those penalties will be imposed.{20}

§ 6.03

Stages and Proceedings at Which the Right To Counsel Attaches - Stages of the Criminal Proceeding

The sixth amendment/article 10 right to counsel attaches at all "critical stages" of the proceeding,{21} beginning with the formal commencement of the case,{22} that is, the filing of an information and the defendant's first court appearance,{23} and continuing through closing arguments{24} and the sentencing stage.{25} It is by no means limited to procedures that take place in a courtroom, applying to postcharge lineups,{26} custodial interrogations,{27} and any occasion at which the state, directly or through an agent, seeks to "deliberately elicit" an incriminating admission.{28}

The public defender statute and related provisions extend the right to counsel to proceedings not, or arguably not, covered by the sixth amendment or article 10. First, because the constitutional right attaches only at the formal initiation of a criminal charge it does not apply to precharge DUI breath testing.{29} By statute, however, a motorist has a right to consult counsel in connection with a request for breath or blood testing,{30} and the Vermont court has read that provision in pari materia with the public defender statute to guarantee a right to counsel at public expense.{31} Second, at least under the federal constitution, there is no right to counsel at postcharge identification procedures that do not pose the same risks as lineups.{32} The rules of criminal procedure, however, require notice to and access by counsel in a wide range of identification procedures, including fingerprinting, blood sampling, and photographing.{33} Third, Vermont allows a defendant to move within ninety days of sentence for a discretionary reconsideration of sentence.{34} Whether or not sentence reconsideration is a "critical stage" for right-to-counsel purposes, the public defender statute guarantees counsel at this stage.{35}

The public defender statute also supplements the due process right to postconviction counsel. First, the due process clause grants a limited right to counsel in probation revocation proceedings.{36} The public defender statute, as implemented by V.R.Cr.P. 32.1, specifically grants the right in all cases.{37} Second, due process at most requires counsel in some parole revocation cases.{38} The defender general's prisoners' rights office provides representation on request. Third, although the due process clause does not guarantee counsel at a collateral postconviction proceeding,{39} the public defender statute does.{40}

§ 6.04

- Prior Proceedings in Recidivist Cases

A number of recidivist statutes predicate enhanced liability and sentences on the existence of prior convictions.{41} When the defendant was denied counsel in the earlier proceeding, however, the conviction may not be used for enhancement purposes.{42} The same holds true, as the law currently stands, even if the prior uncounseled conviction was not itself unconstitutional (because no prison sentence was imposed),{43} so long as the prior conviction carried an authorized term of imprisonment of at least six months.{43.5} If the authorized punishment for the predicate crime is less than six months the state can refuse to assign counsel in the predicate case, and use the predicate conviction as a basis for a prison sentence in the recidivist case.{43.10}

The defendant bears a burden of coming forward with some showing (e.g., by transcripts, docket entries, or testimony) that he was denied counsel in the prior case.{44}

§ 6.05

- Juvenile Proceedings

By administrative order and family court rule, children have a right to assignment of counsel in all juvenile delinquency cases,{45} and all CHINS proceedings.{46} Parents in CHINS cases are also entitled to assigned counsel.{47} A juvenile's right to counsel in delinquency cases includes the right to effective assistance, judged by the same standards that apply to criminal proceedings.{48}

§ 6.06

- Mental Commitments

A criminal defendant may be examined for competency and sanity, at the state hospital or elsewhere, and counsel must be assigned at any such proceeding.{49} On a finding of incompetency or insanity, the defendant can be committed to the state hospital as a "person in need of treatment" for an extendable period of ninety days.{50} He has a right to counsel at such commitment proceedings,{51} and, if committed, he has a right to counsel in seeking release.{52}

§ 6.07

The Right to a Particular Attorney

and To Change Counsel

An indigent defendant has no right to choose a particular lawyer or to demand a new one if he is unsatisfied with the one he has.{53} Indeed, in Morris v. Slappy{54} the United States Supreme Court went so far as to hold that the sixth amendment does not guarantee a "meaningful relationship" or any particular attorney-client rapport,{55} and the question should be counted as an open one under article 10 of the state constitution. Vermont courts clearly have the power to assign substitute counsel when the defendant and his lawyer reach an impasse, and caselaw suggests that a change of counsel may be required if the defendant has not acted in bad faith.{56} When defendant requests new counsel,

the court must consider such circumstances as whether present counsel is reasonably likely to afford a defendant effective assistance, whether the mutual confidence between the lawyer and client has been destroyed, whether the defendant has unduly delayed in seeking a new assignment, and whether the defendant is merely engaging in delaying tactics.{57}

An attorney other than the public defender must be assigned when "the court, for good cause, determines the need for a replacement attorney[,]"{58} and "good cause" in this context includes "a complete breakdown in communication with counsel" and "other good reason to conclude that appointed counsel is unable to furnish effective assistance."{59} Many judges, perhaps considering it bad manners to look a gift horse in the mouth, are unsympathetic to requests for new assigned counsel unless the lawyer himself seconds the request.{60}

§ 6.08

Rights to Defense "Services and Facilities"

Besides representation by counsel, an indigent defendant is entitled "[t]o be provided with the necessary services and facilities of representation as authorized or later approved by the court" at public expense to the extent that he is unable to pay for them himself.{61} The defendant's right to more than an unadorned lawyer has constitutional roots. In Griffin v. Illinois{62} Justice Black wrote for a plurality of the court that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has."{63}

These services and facilities include investigators, expert witnesses, forensic analyses, travel expenses, and transcripts. Some can be had through state facilities, and lawyers representing clients as public defenders or assigned counsel are entitled "to use any state technical services and facilities for the development or evaluation of evidence that are available to the prosecutor."{64} These presumably include the state health department laboratory and the state police crime laboratory, as well as Vermont's version of the NCIC computer network, the VCIC, but access is not readily granted and defense counsel will generally need a court order. In any event, for confidentiality reasons defense lawyers will usually prefer privately retained services.

The defender general's office provides funds for necessary expert witnesses and services. Defense counsel needs to get advance approval for the expenditure (from the defender general's office for public defenders, and from the assigned counsel coordinator for private contract or "ad hoc" assigned counsel), but the lawyer's decision will rarely be second-guessed. The defender general publishes a directory of expert services, available on request, but the best source of names is word-of-mouth.

The constitutional guarantee of counsel on appeal{65} comprehends the right to a verbatim transcript at state expense,{66} which is also seen as one of the "necessary services and facilities of representation" allowed by the public defender statute.{67} Whether or not the indigent appellant is constitutionally entitled to a complete verbatim transcript of trial court proceedings,{68} the statute and its associated rules{69} give him that right. But the onus is on defense counsel to insist on transcription. When no transcript is available because no court reporter was present (e.g., at a chambers conference), the supreme court will not reverse unless the defendant convinces it that matters of substance were unrecorded.{70}

§ 6.09

Implementing Assigned Counsel Rights

The defendant must be advised of his assigned counsel rights at the Rule 5 hearing.{71} He has to fill out a form request, reporting income, assets, and expenses,{72} and, if he is eligible, counsel must be assigned before any further proceedings.{73}

§ 6.10

- Eligibility

A "needy person" is "a person who at the time his need is determined is financially unable, without undue hardship, to provide for full payment of an attorney and all other necessary expenses of representation or who is otherwise unable to employ an attorney."{74} People on welfare, or those whose income is at or below poverty income guidelines for nonfarm families, are presumed to be eligible.{75} People whose income is more than 125 percent of the federal poverty guidelines are presumed able to pay for part of their defense services; in such cases the court sets the amount and, if the defendant has money available, orders immediate co-payment (with assignment being contingent on payment), or else reimbursement afterward.{76}

In at least two circumstances eligibility is assumed without a determination of financial need. When a person in police custody requests Miranda counsel in connection with precharge interrogation, counsel must be contacted immediately and the eligibility determination "can wait upon [defendant's] first court appearance."{77} The same rule applies to requests for legal advice in connection with a DUI breath or blood test procedure.{78}

A judge who denies assignment on eligibility grounds has to state why in a written finding.{79} The defendant can complain about the denial by writing the court administrator, who will forward the complaint letter to one of the supreme court justices for a decision.{80}

§ 6.11

- Public Defenders, Assigned Counsel, "Ad Hoc" Counsel

The state defender general is the coordinating officer and paymaster for all publicly funded representation in Vermont, providing defense services through local public defenders and private attorneys.{81}

The public defender is the presumptive choice. Vermont's fourteen counties are covered by eleven offices, three of which are private law firms on contract with the defender general.{82} On average 80 percent of the publicly funded cases in the trial courts are handled by these offices.{83} In addition to the local public defender offices, the defender general's office in Montpelier includes an appeals office, a juvenile office handling postadjudication juvenile proceedings and representing children in restrictive facilities, and a prisoner's rights office which represents prisoners in parole matters, prison conditions suits, and postconviction relief petitions.

Private counsel will be assigned only if the pubic defender cannot take a case because of a conflict of interest or otherwise, or if the court "for cause" sees a need for private counsel.{84} The defender general contracts with private attorneys throughout the state to handle conflict cases, and the assignment goes to these "contract counsel" unless they also cannot, or for good cause should not, take the case, in which case the court will assign an alternate (or "ad hoc") attorney.{85} On average 15 percent of assigned counsel cases are handled by contract counsel, and 5 percent by ad hoc counsel.{86} The contract system, initiated in 1983 with an eye to assuring quality and controlling costs, has the incidental effect of freezing most private lawyers out of assigned criminal practice altogether.

§ 6.12

- Payment of Assigned Counsel

Contract counsel are paid according to their contracts; ad hoc counsel are reimbursed at the munificent rate of $25 an hour, with a maximum of $500 for misdemeanor cases, $1,000 for felonies, $10,000 for felonies carrying a maximum sentence of life imprisonment, and $1,000 for all appeals.{87}

All assigned counsel must also be reimbursed for the "actual and necessary expenses of representation", that is, for defense services "which are not reasonably available through state facilities."{88}

Assigned attorneys are insulated from the defender general's control and loosely overseen by an "assigned counsel coordinator" who has authority to approve expenses,{89} to allow claims for compensation from ad hoc counsel,{90} and in extraordinary cases to allow fees above the statutory maximums.{91} All bills must be finally submitted to the defender general within three months of the conclusion of the case "or payment shall be refused."{92} In recent years budget shortfalls have resulted in significant delays, and even a few lawsuits.

§ 6.13

Retained Counsel

The rights and responsibilities of a retained counsel relationship are no different from those governing assigned counsel, with the obvious exception that a defendant who retains counsel has his choice of counsel,{93} and in theory, at least, a better chance at a meaningful attorney-client relationship. Freedom to choose is not absolute, however: a court can, in some cases, disqualify a defendant's chosen lawyer for a conflict of interest,{94} and presumably can limit an eleventh hour choice of new counsel in the interests of judicial efficiency.{95}

Although a defendant who is not a "needy person" is not entitled to defense services at state expense, the mere fact that he has been able to retain counsel does not automatically disentitle him to state-paid services, to the extent that he is "unable to provide for their payment without undue hardship."{96} Nor does retention of counsel prevent a later assignment of counsel (perhaps the same counsel) if the defendant runs out of money part way through the case.{97}

There are no compiled statistics on the percentage of criminal defendants represented by retained counsel, but the proportion probably does not exceed 15 percent.

§ 6.14

Waiver of Counsel and the Right of Self-Representation - The Right To Waive Counsel

The defendant has a constitutional right to proceed without counsel if he wants to. The sixth amendment right of a criminally accused "to have the Assistance of Counsel for his defense" implies a right of self-representation,{98} and the state constitutional right of a defendant "to be heard by himself and his counsel"{99} also suggests a right of self-representation, although the clause has also been interpreted as a guarantee of the right to testify.{100} The Vermont Supreme Court has limited the constitutional right of self-representation to settings in which the defendant has a constitutional right to counsel. In a proceeding, like petition for postconviction relief, in which the right to counsel has only a statutory basis, the court has said that the defendant has no constitutional right to proceed without counsel.{101}

§ 6.15

- Requirements of a Valid Waiver of Counsel:

Constitutional Waivers

Cases where a defendant asserts a desire to represent himself "presen[t] a tension between two constitutional rights: the right to counsel, and the right to proceed without counsel."{102} The tension must be resolved with a careful on-the-record colloquy establishing the accused's waiver of his right to counsel, and warning him of the danger of self-representation. In State v. Merrill the Vermont Supreme Court directed judges to

provide a clear explanation of the adverse consequences of pro se representation. This discussion should appear on the record so that a reviewing court may determine that the defendant knowingly accepted the risk.{103}

The defendant must be told of "the dangers of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'"{104}

Waiver of the constitutional right to counsel is governed by rigid constitutional rules. It must be a voluntary, knowing, and intelligent act, an "intentional relinquishment or abandonment of a known right or privilege."{105} Courts will not infer waiver from a silent record,{106} or from "doubtful conduct,"{107} and are generally supposed to "indulge every reasonable presumption against waiver of fundamental constitutional rights."{108}

The defendant should be clearly and explicitly informed of (1) his right to counsel, (2) the nature of the charges against him, (3) the minimum and maximum punishments, and (4) the consequences of proceeding without counsel.{109} Because waivers are judged by the totality of circumstances, the record must also shed light on the defendant's personal characteristics, such as background, experience, and intelligence - the same factors by which waivers of Miranda rights are assessed.{110}

In State v. Merrill, the court retreated from prior holdings (and arguably from the due process minimum) in two respects. First, the on-record advice requirements were demoted from a constitutional requirement in all cases to "better practice" in some.{111} Second, at least in a "close case," a constitutionally inadequate record may be cured by an after-the-fact waiver colloquy, establishing what the defendant knew (as opposed to what the judge told him).{112}

A waiver of counsel must of course be "competently" made,{113} but whether the competency required for a counsel waiver is different from the competency required for trial{114} is an open question.{115}

As long as these standards are met and the defendant's conduct is unequivocal, there is no hard-and-fast constitutional requirement that the waiver be made explicitly. A defendant can waive Miranda's fifth amendment right to counsel by conduct; although Miranda says that such waivers must be "specifically made"{116} they need not be made explicitly, and can be inferred from conduct.{117} It is safe to assume that the same is true of sixth amendment counsel.{118} For example, a defendant who does not qualify for assigned counsel and refuses to retain counsel, or a defendant who refuses the services of assigned counsel without explicitly waiving his right to be represented, may be held to have made a constitutionally sufficient waiver by conduct.{119} Similarly, a defendant can waive the right to self-representation by conduct.{120}

In addition to these constitutional requirements for a valid counsel waiver, the public defender statute requires that the defendant waive counsel "in writing or by other record. . . ."{121} In State v. Ahearn{122} the Vermont court held that a signed "motion to proceed pro se" despite "minor shortcomings" satisfied the statutory requirement of a written waiver.

§ 6.16

- Waivers of Statutory Counsel

The right to counsel in some contexts is given only by statute, and waivers in such cases may be less closely scrutinized.

By statute, a motorist stopped on suspicion of drunk driving has a right to consult counsel, and his decision, like other counsel choices, must be an informed one.{123} When the information conveyed by the police is defective, however, the Vermont court now holds that the results of the DUI "processing" (the test result, or the refusal to submit) will be suppressed only if the defendant can demonstrate actual prejudice, that is, that he would have made a different choice under the implied consent law if he had received adequate professional assistance.{124}

A defendant's right to counsel in collateral postconviction proceedings is also statutory, not constitutional in origin, and the Vermont Supreme Court judges counsel waivers in such proceedings by a less scrupulous standard than constitutional waivers.{125}

§ 6.17

- The Right To Rescind a Counsel Waiver

The defendant who is bound and determined to represent himself early in the case may change his mind later on and request counsel. At least in theory an initial waiver of counsel can be rescinded,{126} but a change of mind which is perceived as a delaying tactic will not meet with favor.{127}

§ 6.18

The Risks and Rights of Self-Representation

The risks of self-representation will be obvious to any lawyer, and not merely for reasons of professional self-esteem. "The fact of the matter is that in all but an extraordinarily small number of cases an accused will lose whatever defense he may have if he undertakes to conduct the trial himself."{128} Even an intelligent and educated layperson "requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."{129} These inevitable dangers may be magnified by a vindictive tendency on the part of some judges and prosecutors to punish the pro se defendant for his choice. Judges prefer to deal with counsel and the defendant's decision to "go pro se" poses inconveniences and upsets courthouse routines. Judges are often stricter with the pro se litigant than they would be with counsel, less forgiving of mistakes, and less generous in the exercise of discretion. Even so, they have discretion, and in some cases a duty,{129.5} to safeguard rights.

§ 6.19

- Standby Counsel

The counsel/self-representation dilemma need not be resolved by an either-or choice. The judge has authority to appoint "standby" counsel{130} to "aid the accused if and when the accused requests help" and to "be available to represent the accused in the event that termination of the defendant's self-representation is necessary."{131} Indeed, a standby lawyer can be appointed and allowed to play a considerable role in the proceedings over the defendant's objections, without violating his right of self-representation.{132} But the pro se defendant must be allowed to retain "control" of the case and to make all "significant" tactical decisions. Standby counsel also cannot undermine the defendant's "appearance in the status of one conducting his own defense" by intruding on core aspects of the right of self-representation, such as the right to question witnesses.{133}

The power to appoint standby counsel, however, does not imply an across-the-board duty to do so. The practice is generally recommended in cases expected to be long or complicated{134} and some courts require it{135} but the Vermont Supreme Court has allowed the trial courts ample discretion to deny "hybrid representation" outright{136} or to place "reasonable limitations and conditions upon the arrangement."{137}

§ 6.20

- Facilities of Self-Representation

With or without standby assistance the pro se defendant retains the right "to notice, confrontation and compulsory process" and "to make a defense as we know it."{138} In State v. Ahearn, the Vermont court acknowledged that an incarcerated defendant who is not assisted by standby counsel must be given reasonable access to legal materials necessary for his defense.{139} He must also be allowed reasonable access to witnesses, but the court can restrict the number and length of long distance calls, at least if a lawyer is available to make calls for him.{140}

§ 6.21

- The Judge's Sua Sponte Role

While it is often said that a pro se defendant will be held to the same standards as professional counsel and that he cannot complain after the fact of his own ineffectiveness,{141} a trial judge "has to be very sensitive" in a pro se case "so that obvious errors do not creep into the proceeding because of the lack of knowledge of the defendant."{142} This special protective role can be discharged in a number of useful ways, for example, by advising the defendant about the basic groundrules (or appointing standby counsel to do so), exercising an aggressive sua sponte supervision of the proceedings, allowing continuances when necessary,{143} and cautioning the jury not to hold the defendant's selfrepresentation against him.

§ 6.22

The Roles of Client and Counsel

A client who chooses to be represented gives the lawyer power to make binding decisions about how the case should proceed{144} but the client does not abandon control of the litigation; it remains, in the words of the sixth amendment, "his defense."{145}

The caselaw does not pretend to tell lawyers how to conduct their client relationships, or give a comprehensive list of which decisions should be entrusted to the client and which ones the lawyer should make on his own. How these choices are made will mostly depend on individual attitudes of lawyer and client, the nature of their relationship, and the type of case. The law does, however, identify some decisions which must be made by the client personally (either by personal waiver or implicitly, by acquiescing in the lawyer's decision) and a few which a lawyer can make entirely on his own. The following belong to the client:

1. The decision to plead guilty, not guilty, or nolo contendere,{146} and equivalent decisions (e.g., not to contest probation revocation proceedings).{147}

2. The decision to withdraw a plea of guilty or nolo contendere when the court rejects a plea agreement.{148}

3. The decision to concede (e.g., in closing argument) that the defendant is guilty of a lesser included offense.{149}

4. The decision to testify or not,{150} except that the lawyer may not ethically adduce perjured testimony.{151}

5. The decision whether the jury should be instructed on the defendant's decision not to testify.{152}

6. The decision to waive a jury trial{153} and other matters going to the "heart" of the jury trial right,{154} including the decision to challenge a jury for possible bias.{155} Some jury decisions will be approved on a finding of defendant's "implied" consent, such as the decision to proceed with less than a twelve person jury,{156} or to seek jury sequestration.{157}

7. The decision whether to present an insanity defense, except that a waiver of the defense may require some judicial supervision.{158}

8. The decision whether to request instruction on a lesser included offense.{158.5}

9. The decision whether to contest factual inaccuracies in a presentence investigation report.{159}

10. The decision to make a personal statement before imposition of sentence.{160}

11. The decision to appeal.{161}

As for decisions on the other side of the fence, those which a lawyer may unilaterally make, the Vermont Supreme Court has said as "a general rule" that the lawyer "has authority to act on behalf of his client and to control the procedural aspects of his client's case without his client's express consent."{162} The American Bar Association takes a broad view, including in the lawyer's sphere all "strategic and tactical decisions," for example, "what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, [and] what trial motions should be made[,]"{163} but recommends, when significant disagreements arise, that the lawyer "make a confidential record [e.g., a memorandum to the file] of the circumstances, the lawyer's advice and reasons, and the conclusion reached" in case the dispute becomes a subject of an ineffective assistance claim.{164}

If lawyers can act in these areas with a client's explicit or implicit approval, it is less clear whether they can act against their client's expressed wishes. The case law approves a lawyer's unilateral decisions in the following areas:

1. The tactics and scope of cross-examination.{165}

2. A strategic decision to waive objection to admission of evidence.{166}

3. The decision of what nonfrivolous issues to raise on appeal.{167}

§ 6.23

Ineffective Assistance of Counsel -

The Standard of Competency

The constitutional right to counsel means the right to effective assistance of counsel,{168} that is, representation that rises to the level of "`reasonable competence' as measured by prevailing standards,"{169} that is, "that degree of care, skill, diligence and knowledge possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in this jurisdiction."{170} It applies at pretrial stages of the criminal process{171} and continues through the appeal stage.{172}

The test leaves wide latitude in the area of strategy and trial tactics, and a claim of ineffective assistance will generally be rejected when counsel's action or inaction can be justified as a reasonable (albeit retrospectively wrong) tactical choice.{173}

The standard, however, "is not limited to a general competency" - good lawyers can be just as ineffective as bad ones - but rather "is applied to specific omissions. . . ."{174} The United States Supreme Court in Strickland v. Washington declined to adopt detailed standards of competency under the sixth amendment{175} and the Vermont Supreme Court has also not attempted a list of defense counsel's responsibilities,{176} but others have.{177}

The Vermont court has, however, identified certain lapses as inconsistent with effective assistance. Failure to file a notice of appeal within the thirty-day deadline constitutes ineffectiveness per se.{178} Similarly, the Vermont court has said that it is ineffective for a lawyer to fail to convey a plea offer;{179} to fail to file a meritorious pretrial suppression motion;{180} to advise full cooperation with a police investigation without any quid pro quo;{181} and to fail to familiarize himself with filed documents in the case.{182} On the other hand, defense counsel has no duty to advise a client pleading nolo contendere to a sex offense "how and under what circumstances his parole eligibility would be affected by his continued denial of responsibility for the crime."{182.5}

§ 6.24

- The Requirement of Prejudice

Except in a few cases{183} representation that falls demonstrably below the required level of "reasonable competence" will not constitute ineffective assistance unless the defendant can make a special showing of prejudice. Ineffective assistance of counsel, the United States Supreme Court held in Strickland, requires a showing of "unreasonable representation under professional norms" and a "reasonable probability" that but for counsel's errors the result would have been different.{184} Ineffective assistance is not ineffective assistance unless it "undermine[s] confidence in the outcome."{185} In a guilty plea case, ineffectiveness is shown only if the defendant can demonstrate a "reasonable probability" that he would have insisted on his right to a trial if he had been competently represented.{186}

The Strickland test conflates the substantive standard (reasonable competence) and the measure of prejudice warranting reversal, two things which (with one other exception){187} are always kept separate. Normally, when a constitutional error is shown, the prosecution has the burden to establish that the error was harmless beyond a reasonable doubt,{188} that is, that it "did not contribute to the verdict obtained."{189} Strickland alters the normal rule in three respects: (1) prejudice is part of the error (not a separate inquiry), (2) the burden is the defendant's to show (not the prosecution's to negate), and (3) the standard is prejudice by a "reasonable probability" (not the absence of prejudice beyond a reasonable doubt).

The Vermont Supreme Court has said it will treat ineffectiveness claims under chapter I, article 10 of the state constitution no differently,{190} and indeed its test seems to be even stricter than Strickland, requiring the defendant to "demonstrate prejudice by a preponderance of evidence in order to establish an ineffective-assistance-of-counsel claim."{191}

§ 6.25

- Presumptive Ineffectiveness

The United States Supreme Court has held that prejudice is either presumed, or the burden to show it is significantly lightened, when the defendant can show (1) an "actual or constructive denial of the assistance of counsel altogether,"{192} (2) government interference which has the effect of making counsel's assistance ineffective,{193} or (3) that his lawyer had a conflict of interest.{194} In In re J.B.{195} the Vermont court held that a lawyer's advice to a juvenile client to speak openly with the police constituted a complete failure of assistance, and that no specific showing of prejudice was required.{196} Failure to file a notice of appeal on time also warrants per se relief, unless the lost appeal was "patently frivolous and without a prayer of a chance of success."{197}

§ 6.26

- Conflict of Interest

An ineffective assistance claim can be made out by showing an actual conflict of interest, that is, that the defense lawyer was actively representing conflicting interests, and that the conflict adversely affected counsel's performance, which, if proven, will establish "prejudice" under Strickland.{198} The trial court has a responsibility to inquire about potential conflicts which it knows or should know about, and a failure to inquire in such circumstances is itself a sixth amendment violation.{199}

Representation of codefendants does not automatically create a conflict,{200} but in assigned counsel cases codefendants are routinely assigned separate counsel.{201} The defendant can waive the conflict,{202} but the waiver need not be accepted by the trial judge.{203}

§ 6.27

- How Raised

In general, claims of ineffective assistance of counsel may not be raised on direct appeal; the proper way to raise the claim is by a petition for postconviction relief (PCR) under § 13 V.S.A. 7131 et seq., "on a developed record and a full evaluation of all relevant issues. . . ."{204} When counsel's ineffectiveness consists of a failure to preserve claims of error, the court will consider direct-appeal claims of "plain error," that is, that reversal is warranted notwithstanding counsel's default, but claims of ineffectiveness must usually be raised by a PCR petition.{205}

The rationale for requiring a separate collateral proceeding does not apply to cases of per se or presumed ineffectiveness, where a prejudice showing is not required, or to cases where an adequate trial record exists,{206} and in such cases a refusal of direct review results only in delay and repetitive litigation.

§ 6.28

Withdrawal of Counsel

Once counsel makes an appearance in the case, by assignment or retainer, he or she has a duty to continue representation until formally relieved.{207} When a case is handed over to a different lawyer (e.g., for an appeal), coordination and a clear assignment of responsibilities are crucial to make sure that the defendant does not fall between the two stools.

ENDNOTES

1. The sixth amendment grants the accused in "all criminal prosecutions" the right "to have the Assistance of Counsel for his defense." Article 10 provides that "in all prosecutions for criminal offenses, a person hath a right to be heard by himself and his counsel. . . ."

2. Argersinger v. Hamlin, 407 U.S. 25, 37-38 (1972). The sixth amendment right to counsel in all felony prosecutions was first applied to the states in Gideon v. Wainwright, 372 U.S. 335 (1963).

3. Scott v. Illinois, 440 U.S. 367 (1979). When incarceration is a statutorily mandated punishment, counsel must be assigned even if the judge erroneously undertakes not to impose a prison term. State v. Stewart, 154 Vt. 643 (1990).

4. 440 U.S. 367, 383 (1979) (opinion of Brennan, J.).

5. 407 U.S. 25, 52-53 (1972) (opinion of Powell, J.).

6. 156 Vt. 122 (1991).

7. State v. Duval, 156 Vt. 122, 124 (1991); 13 V.S.A. § 5201(4)(B).

8. See § 38.01, infra (probation).

9. United States v. Reilly, 948 F.2d 648 (10th Cir. 1991). See also United States v. White, 529 F.2d 1390 (8th Cir. 1976).

10. See, e.g., Jones v. Cunningham, 371 U.S. 236, 243 (1963); see generally §§ 38.04-38.05, infra.

11. But see Scott v. Illinois, 440 U.S. 367, 373 (1979) (holding that actual imprisonment "is a penalty different in kind from fines or the mere threat of imprisonment . . .").

12. See Duke, The Right to Appointed Counsel: Argersinger and Beyond, 12 Am. Crim. L. Rev. 601, 619 (1975) (arguing that it would be "sheer formalism" to allow an uncounseled conviction to result in a prison term "provided it occurs in two or more stages.") Cf. Baldasar v. Illinois, 446 U.S. 222 (1980) (felony liability and prison sentence may not be predicated on prior uncounselled misdemeanor conviction).

13. Douglas v. California, 372 U.S. 353, 355-57 (1963). See also Evitts v. Lucy, 469 U.S. 387, 396 (1985) (due process requires effective assistance of counsel on appeal); Griffin v. Illinois, 351 U.S. 12, 19 (1956).

14. Penson v. Ohio, 488 U.S. 75, 85 (1989).

15. Ross v. Moffitt, 417 U.S. 600, 612-15 (1974).

16. Pennsylvania v. Finley, 481 U.S. 551 (1987); In re Chapman, 155 Vt. 163, 167 (1990).

17. 13 V.S.A. § 5201 et seq. By Administrative Order the Vermont Supreme Court admonishes courts to "be diligent to recognize the need for counsel," and that gaps in statutory coverage pose "no bar to the exercise of the inherent power to provide counsel where it may be constitutionally required." A.O. 4 § 1.

18. 13 V.S.A. § 5231.

19. 13 V.S.A. § 5233(a)(1). See also V.R.Cr.P. 44(a) (the right attaches "at every stage of the proceedings from [the] initial appearance before the judicial officer through appeal" unless the defendant waives it).

20. But see State v. Duval, 156 Vt. 122 (1991) (giving the judge leeway to renege on an initial decision not to impose such penalties).

21. United States v. Wade, 388 U.S. 218, 227 (1967); State v. Lombard, 146 Vt. 411, 414 (1985).

22. Brewer v. Williams, 430 U.S. 387, 401 (1977); Kirby v. Illinois, 406 U.S. 682 (1972).

23. V.R.Cr.P. 5(e) and Reporter's Notes; V.R.Cr.P. 44(a). See § 5.20, supra.

24. Herring v. New York, 422 U.S. 853 (1975) (right to counsel's closing in a judge-tried case); In re A.C., 134 Vt. 284 (1976).

25. Mempa v. Rhay, 389 U.S. 128, 137 (1967).

26. United States v. Wade, 388 U.S. 218 (1967). See § 4.02, supra.

27. Michigan v. Jackson, 475 U.S. 625 (1986); Brewer v. Williams, 430 U.S. 387, 404 (1977); State v. Preston, 150 Vt. 511 (1988). See § 3.22, supra.

28. Maine v. Moulton, 474 U.S. 159 (1985); United States v. Henry, 447 U.S. 264 (1980); State v. Brown, 153 Vt. 263, 267-69 (1989). See § 3.23, supra.

29. State v. Lombard, 146 Vt. 411, 414 (1985); State v. Welch, 136 Vt. 442, 445 (1978) (request to submit to breath testing not a critical stage).

30. 23 V.S.A. § 1202. See, e.g., Pfeil v. Rutland District Court, 147 Vt. 305, 309 (1986); State v. Lombard, 146 Vt. 411, 415 (1985).

31. State v. Gracey, 140 Vt. 199, 201-02 (1981); State v. Duff, 136 Vt. 537, 539-40 (1978).

32. See United States v. Ash, 413 U.S. 300 (1973) (no right to sixth amendment counsel at photo identification procedure); United States v. Wade, 388 U.S. 218, 227-28 (1967); State v. Howe, 136 Vt. 53, 63-64 (1978). See § 4.04, supra.

33. V.R.Cr.P. 16.1(a)(1),(2).

34. V.R.Cr.P. 35(b); 13 V.S.A. § 7042.

35. State v. Rice, 145 Vt. 25 (1984).

36. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).

37. V.R.Cr.P. 32.1(a)(1)(D),(2)(E); 13 V.S.A. § 5231.

38. The question was left undecided in Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

39. Murray v. Giarratano, 492 U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. 551 (1987).

40. 13 V.S.A. § 5232(2); In re Chapman, 155 Vt. 163, 167 (1990); In re Morse, 138 Vt. 327 (1980).

41. See, e.g., 13 V.S.A. § 11 ("habitual offender" penalties of persons convicted of three prior felonies); 23 V.S.A. § 1210 (enhanced penalties for repeat DUI offenders).

42. United States v. Tucker, 404 U.S. 443, 449 (1972); Burgett v. Texas, 389 U.S. 109 (1967); State v. Whitney, 156 Vt. 301, 302 (1991).

43. See Baldasar v. Illinois, 446 U.S. 222 (1980).

44. 44.

45. A.O. 32, V.R.F.P. 6(b). The public defender statute requires assignment for any delinquent act that "but for the age of the person involved, would be a serious crime." 13 V.S.A. § 5201(4)(C). The definition is a little puzzling because "serious crime" is keyed to a judge's decision to impose a term of imprisonment, § 5201(4)(B), which is not an option in juvenile delinquency proceedings, but in practice counsel is routinely assigned in all juvenile delinquency cases. In any case, the family court rule supercedes the statute. V.R.F.P. 6(b), Reporter's Notes.

46. A.O. 32, V.R.F.P. 6(b). Under the juvenile procedure statutes counsel must be assigned in CHINS cases "when the court deems the interests of justice require representation of either the child or his parents or guardian or both" and in the review and modification proceedings that may follow an initial CHINS order. 33 V.S.A. § 5232(3). In practice counsel is assigned for the children and parents in all CHINS cases, and the defender general's juvenile office provides representation for children in SRS custody at the later review stages.

47. A.O. 32.

48. In re J.B., No. 91-223, slip op. 4-5 (Vt. Nov. 6, 1992). See §§ 6.23-6.27, infra.

49. "There can be no doubt that a proceeding to determine whether the accused should be examined and, if so, whether he should be committed to the state hospital for such an examination, is `stage of the proceeding,' and one in which `a person providing his own counsel would be entitled to be represented by an attorney.'" State v. Spear, 142 Vt. 547, 550 (1983) (quoting 13 V.S.A. § 5231(a)(1)).

50. 13 V.S.A. § 4822; State v. Mayer, 139 Vt. 176 (1980).

51. Commitments for treatment under Title 13, like commitments for examination, are presumably a "stage of the proceeding" under the public defender statute. See State v. Spear, 142 Vt. 547, 550 (1983). The right to counsel is also specifically provided by the civil commitment statutes. See 18 V.S.A. § 7613(a) (court to appoint counsel in civil commitment proceedings); 13 V.S.A. § 4822(b).

52. 13 V.S.A. § 5232(2) ("proceeding wherein the person is confined in a . . . mental institution in this state and seeks release therefrom").

53. A.O. 4 § 4(a); State v. O'Connell, 147 Vt. 60, 63 (1986); State v. Ahearn, 137 Vt. 253, 262-63 (1979); State v. Bruley, 131 Vt. 366, 367 (1973).

54. 461 U.S. 1 (1983).

55. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). See also State v. Ahearn, 137 Vt. 253, 264 (1979) ("of itself, a lack of rapport does not constitute grounds for substitution of counsel").

56. See In re Fuller, 135 Vt. 575, 581 (1977) (defendant should have been advised "that although he could not dictate his choice of appointed counsel . . . the court will substitute counsel where it is shown, in good faith, that the mutual confidence between the lawyer and client has been destroyed").

57. State v. O'Connell, 147 Vt. 60, 63 (1986) (quoting State v. Ahearn, 137 Vt. 253, 263 (1979)).

58. A.O. 4 § 3(c).

59. State v. Ahearn, 137 Vt. 253, 263 (1979). See State v. Trombley, 148 Vt. 293, 300 (1987) (defendant told judge that his attorney was conspiring against him, and judge assigned replacement counsel "[b]ased on the apparent breakdown in communications between attorney and client").

60. See Morris v. Slappy, 461 U.S. 1, 11 (1983) (lawyer asserted his readiness to proceed).

61. 13 V.S.A. § 5231(2).

62. 351 U.S. 12 (1956).

63. Griffin v. Illinois, 351 U.S. 12, 19 (1956). See also Ake v. Oklahoma, 470 U.S. 68 (1985) (indigent defendant was entitled to assistance of psychiatrist when sanity was seriously in question).

64. 13 V.S.A. § 5277.

65. See § 6.03, supra.

66. Griffin v. Illinois, 351 U.S. 12, 19 (1956); Bundy v. Wilson, 815 F.2d 125, 130-31 (1st Cir. 1987); State v. Kozikowski, 135 Vt. 93, 94 (1977).

67. State v. Kozikowski, 135 Vt. 93, 94 (1977); 13 V.S.A. § 5231(2).

68. See Hardy v. United States, 375 U.S. 277, 288-89 (1964) (Goldberg, J., concurring) (complete trial transcript "the most basic and fundamental tool" of appellate counsel's profession).

69. See V.R.A.P. 10(b) and 24.

70. State v. Mecier, 145 Vt. 173, 181-83 (1985).

71. V.R.Cr.P. 5(d)(2). See § 5.18, supra.

72. A.O. 4 § 5(a) and App. A.

73. V.R.Cr.P. 5(e).

74. 13 V.S.A. § 5201(3); A.O. 4 § 5(b).

75. A.O. 4 § 5(c). The income guidelines are as follows:

76. A.O. 4 § 5(d). The order can be challenged by petition on grounds of manifest hardship and the interests of justice. Id. § 5(e).

77. State v. Nicasio, 136 Vt. 162, 167 (1978).

78. Gilman v. Commissioner of Motor Vehicles, 155 Vt. 251, 254-55 (1990) (Dooley, J., dissenting); State v. Gracey, 140 Vt. 199, 201-02 (1981); State v. Duff, 136 Vt. 537, 540 (1978). The same logic should require appointment of counsel for a person who requests advice in connection with a precharge Rule 41.1 nontestimonial identification order. See § 2.38, supra.

79. A.O. 4 § 5(i) and App. A.

80. A.O. 4 § 5(j).

81. 13 V.S.A. §§ 5251-57, 5271-77.

82. The public defender offices are in Middlebury (Addison County), Bennington (Bennington County), Burlington (Chittenden County), St. Albans (Franklin and Grand Isle Counties), Hyde Park (Lamoille County), Newport (Orleans County), Rutland (Rutland County), and Brattleboro (Windham County). The private contract offices are Sleigh and Williams of St. Johnsbury (Caledonia and Essex Counties), Rubin, Rona, Kidney, and Myer of Barre (Washington County), and Griffin Levine and Buehler of White River Jct. (Windsor and Orange Counties).

83. Source: Office of the Defender General. For a comprehensive breakdown of assigned counsel and public defender cases see Office of the Defender General, Fourteenth Report, Fiscal Year 1989-90 (March 1991).

84. 13 V.S.A. § 5272; A.O. 4 § 3.

85. 13 V.S.A. § 5272; A.O. 4 § 3.

86. Source: Office of the Defender General.

87. A.O. 4 § 6.

88. A.O. 4 § 6(b).

89. A.O. 4 § 6(b).

90. A.O. 4 § 6(c).

91. A.O. 4 § 6(d).

92. A.O. 4 § 6(e).

93. Powell v. Alabama, 287 U.S. 45, 53 (1932).

94. Wheat v. United States, 486 U.S. 153 (1988). See § 6.26, infra.

95. Cf. Morris v. Slappy, 461 U.S. 1, 11-13 (1983); United States v. Perez, 904 F.2d 142, 151 n.3 (2d Cir.), cert. denied, 111 S. Ct. 270 (1990).

96. 13 V.S.A. § 5231(2).

97. "A needy person's right to a benefit under this section is not affected by his having provided a similar benefit at his own expense . . . at an earlier stage." 13 V.S.A. § 5233(b).

98. McKaskle v. Wiggins, 465 U.S. 168, 173-74 (1984); Faretta v. California, 422 U.S. 806, 819-20 (1975); State v. Merrill, 155 Vt. 422, 425 (1990); State v. O'Connell, 147 Vt. 60, 64 (1986); State v. Ahearn, 137 Vt. 253, 260 (1979).

99. Vt. Const. ch. I, art. 10 (emphasis added).

100. See State v. Brunelle, 148 Vt. 347, 351-52 (1987).

101. In re Chapman, 155 Vt. 163, 167-68 (1990).

102. State v. Merrill, 155 Vt. 422, 424-25 (1990) (citations omitted); In re Chapman, 155 Vt. 163, 166 (1990).

103. State v. Merrill, 155 Vt. 422, 425 (1990) (citations omitted). See also Patterson v. Illinois, 487 U.S. 285, 299 (1988) (court must make "searching" inquiry).

104. Faretta v. California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). See also State v. Quintin, 143 Vt. 40, 44 (1983); State v. Ahearn, 137 Vt. 253, 262 (1979).

105. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); State v. Merrill, 155 Vt. 422, 428 (1990) (Mahady, J., concurring).

106. Carnley v. Cochran, 369 U.S. 506, 516 (1962); State v. Merrill, 155 Vt. 422, 425 (1990).

107. State v. Quintin, 143 Vt. 40, 43 (1983).

108. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); State v. Quintin, 143 Vt. 40, 43 (1983).

109. State v. Merrill, 155 Vt. 422, 425-26 (1990); State v. Quintin, 143 Vt. 40, 44 (1983); State v. Ahearn, 137 Vt. 253, 262 (1979); State v. Hartman, 134 Vt. 64, 66 (1975).

110. State v. Merrill, 155 Vt. 422, 427 (1990); State v. Quintin, 143 Vt. 40, 44 (1983). See § 3.13, supra. The public defender statute directs the judge to "consider such factors as the person's age, education, and familiarity with the English language, and the complexity of the crime involved." 13 V.S.A. § 5237.

111. State v. Merrill, 155 Vt. 422, 425 (1990). The court wrote that "[a] defendant may need to be advised" of the material considerations bearing on his waiver, implying that some defendants need not be. Id. at 425.

112. State v. Merrill, 155 Vt. 422, 426-27 (1990). See State v. Stratton, No. 84-594 (Vt. Jan. 19, 1991) (mem.). A dissenting opinion ridiculed the remedy as "an effort to put Humpty Dumpty back together again." Merrill, 155 Vt. at 429.

113. Westbrook v. Arizona, 384 U.S. 150 (1966) (trial judge has "protective duty" to see that any waiver of counsel is "intelligent and competent"); State v. Quintin, 143 Vt. 40, 43(1983) (citing In re Mears, 124 Vt. 131, 138 (1964)).

114. See § 8.01, infra.

115. Westbrook v. Arizona, 384 U.S. 150 (1966) (hearing on competency to stand trial not a substitute for inquiry into the defendant's competence to waive counsel).

116. Miranda v. Arizona, 384 U.S. 436, 470 (1966).

117. North Carolina v. Butler, 441 U.S. 369, 373 (1971); State v. Malinowsky, 148 Vt. 517, 522-23 (1987). See § 3.13, supra.

118. Cf. Patterson v. Illinois, 487 U.S. 385 (1988) (Miranda warnings suffice to permit waiver of sixth amendment right to counsel during postindictment questioning).

119. The public defender statute's requirement of a written waiver, 13 V.S.A. § 5237, would almost certainly not bar a finding of constitutionally sufficient waiver in such circumstances.

120. Faretta v. California, 422 U.S. 806, 834 n.46 (1975); Illinois v. Allen, 397 U.S. 337 (1970).

121. 13 V.S.A. § 5237. See State v. Caron, No. 89-329, slip op. 20-22 (Vt. Dec. 21, 1990); § 3.14, supra.

122. 137 Vt. 253, 264-65 (1979).

123. State v. Gracey, 140 Vt. 199, 201-02 (1981); State v. Duff, 136 Vt. 537, 540 (1978).

124. State v. Lynaugh, Nos. 91-030 and 91-159, slip op. 4 (Vt. Jan. 17, 1992); State v. Hamm, 157 Vt. 666, 667 (1991)(mem.).

125. In re Chapman, 155 Vt. 163, 168 (1990). Although the proponent of a constitutional waiver has the duty of producing a record, the court in Chapman wrote that "it is the petitioner's burden to make the necessary showing" of a deficient waiver.

126. See Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (authorizing standby counsel to take over representation if the defendant requests it). See § 6.19, supra. Similarly, a defendant's entitlement to representation under the public defender statute "is not affected . . . by his having waived it at an earlier stage." 13 V.S.A. § 5233(b).

127. Cf. Morris v. Slappy, 461 U.S. 1, 12-13 (1983); State v. Ahearn, 137 Vt. 252, 263 (1979) (request for substitute counsel).

128. Faretta v. California, 422 U.S. 806, 838 (1975) (Burger, C.J., dissenting).

129. Faretta v. California, 422 U.S. 806, 839 (1975) (Burger, C.J., dissenting) (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)).

130. McKaskle v. Wiggins, 465 U.S. 168, 170 (1984); In re Chapman, 155 Vt. 163, 166 (1990).

131. McKaskle v. Wiggins, 465 U.S. 168, 176 (1984); Faretta v. California, 422 U.S. 806, 835 n.46 (1975).

132. McKaskle v. Wiggins, 465 U.S. 168, 176-79 (1984).

133. McKaskle v. Wiggins, 465 U.S. 168, 178-79 (1984). Recognizing this limitation in State v. Sims, No. 90-436, slip op. 14-15 (Vt. Nov. 8, 1991), the Vermont court nevertheless held that it was not error to require a pro se defendant to conduct a videotaped examination of the complaining witness through standby counsel because the defendant determined to ask no questions and directed the lawyer to ask none.

134. ABA Standards for Criminal Justice § 6-3.7, at 6.42 (2d ed. 1980).

135. See, e.g., United States v. Moya-Gomez, 860 F.2d 706, 740-41 (7th Cir. 1988); People v. Gibson, 556 N.E.2d 226, 233-34 (Ill. 1990).

136. State v. Sims, No. 90-436, slip op. 13-14 (Vt. Nov. 8, 1991) (dictum).

137. State v. Sims, No. 90-436, slip op. 14 (Vt. Nov. 8, 1991) (quoting United States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989)). In Sims the court held it was not an abuse of discretion to allow standby counsel to be absent from the pretrial proceedings.

138. Faretta v. California, 422 U.S. 806, 818 (1975).

139. State v. Ahearn, 137 Vt. 253, 266 (1979) (citing Bounds v. Smith, 430 U.S. 817 (1977)). The defendant in Ahearn "had the functional equivalent of a law library in the form of the public defender, who was available to perform any necessary research." Id.

140. State v. Ahearn, 137 Vt. 253, 266 (1979).

141. Faretta v. California, 422 U.S. 806, 834 n.46 (1975).

142. State v. Sims, No. 90-436, slip op. 5 (Vt. Nov. 8, 1991) (dissenting opinion); State v. Ayers, 148 Vt. 421, 426 (1987).

143. But see State v. Ahearn, 137 Vt. 267-68 (1979) (denial of brief continuances to talk to witnesses before their testimony upheld as proper exercise of discretion).

144. Faretta v. California, 422 U.S. 806, 820 (1975).

145. Faretta v. California, 422 U.S. 806, 819-20 (1975).

146. State v. Duffy, 151 Vt. 473, 479 (1989); V.R.Cr.P. 11(a); ABA Standards for Criminal Justice 4-5.2(a)(i); Code of Professional Responsibility, EC 7-8. The lawyer therefore has a duty to inform his client about any offered plea bargain. State v. Bristol, No. 91-314, slip op. 4 (Vt. Aug. 21, 1992). The defendant, however, need not orally enter the plea himself. In re Bentley, 144 Vt. 404, 408 (1984).

147. State v. Duffy, 151 Vt. 473, 479 (1989).

148. V.R.Cr.P. 11(e)(4); State v. Belanus, 144 Vt. 166, 170 (1984).

149. State v. Camley, 140 Vt. 483, 488-89 (1981).

150. State v. Mumley, 153 Vt. 304, 305 (1989); In re Mecier, 143 Vt. 23, 27-30 (1983); ABA Standards for Criminal Justice 4-5.2(a)(iii). By statute the defendant may testify "at his own request and not otherwise. . . ." 13 V.S.A. § 6601. Both Mumley and Mecier hold that the defendant must assert his right to testify, and construe acquiescence in counsel's choice as a waiver.

151. See Nix v. Whiteside, 475 U.S. 157 (1986).

152. State v. Emrick, 129 Vt. 330, 331-32 (1970).

153. V.R.Cr.P. 23(a); State v. Machia, 155 Vt. 192, 195 (1990); State v. Sequin, 153 Vt. 128 (1989); State v. Coita, 153 Vt. 18 (1989); State v. Conn, 152 Vt. 99 (1989); ABA Standards for Criminal Justice 4-5.2(a)(ii).

154. State v. Machia, 155 Vt. 192, 195 (1990).

155. State v. Camley, 140 Vt. 483, 489 (1981); State v. Prime, 137 Vt. 340, 343 (1979).

156. Such a decision is a "tactical" or "strategic" one which "can be made by counsel with the defendant's implied consent." State v. Machia, 155 Vt. 192, 199 (1990).

157. State v. Bailey, 144 Vt. 86, 103 (1984) (right to jury sequestration not so compelling as to require defendant's personal waiver).

158. Frendak v. United States, 408 A.2d 364 (D.C. App. 1979); State v. Davignon, 152 Vt. 209, 216-22 (1989).

159. V.R.Cr.P. 32(a)(1)(A); 11(c)(4), and Reporter's Notes to the 1985 Amendment. The judge does not have to query the defendant personally about his review of the PSI. State v. Gabert, 152 Vt. 83, 90 (1989); State v. Black, 151 Vt. 253, 256 (1988).

160. V.R.Cr.P. 32(a)(1)(C); State v. Saari, 152 Vt. 510, 520 (1989); In re Stevens, 144 Vt. 250, 258-60 (1984).

161. In re Savo, 139 Vt. 527, 529 (1981).

162. State v. Bailey, 144 Vt. 86, 102 (1984). See also State v. Duffy, 151 Vt. 473, 479 (1989). Therefore, "[a]n intelligent and knowing waiver . . . need not be applied `with respect to strategic and tactical decisions, even those with constitutional implications, by a counselled accused.'" Bailey, 144 Vt. at 103 (quoting Mildwoff v. Cunningham, 432 F. Supp. 814, 820 (S.D.N.Y. 1977)).

163. ABA Standards for Criminal Justice 4-5.2(b).

164. Standard 4-5.2(c).

165. State v. Smith, 140 Vt. 247, 261-62 (1981) (counsel's unilateral decision not to cross-examine expert witness for bias, or to question complainant on certain matters, not ineffective assistance). But see State v. Sims, No. 90-436, slip op. 16 (Vt. Nov. 8, 1991) (pro se defendant directed standby counsel not to cross-examine witness; acceding to defendant's choice "may have been constitutionally required" and wasn't a basis for objection).

166. Henry v. Mississippi, 379 U.S. 443, 451 (1965).

167. Jones v. Barnes, 463 U.S. 745, 751-52 (1983); see In re Nash, 149 Vt. 63, 64-65 (1987).

168. McMann v. Richardson, 397 U.S. 759 (1970); In re Parizo, 137 Vt. 365, 367 (1979).

169. Strickland v. Washington, 466 U.S. 668, 688 (1984) (inquiry "must be whether counsel's assistance was reasonable considering all the circumstances"); In re Hatten, 156 Vt. 374, 378 (1991); In re Bruyette, 150 Vt. 557, 560 (1988); In re Kasper, 142 Vt. 31, 35 (1982); In re Cronin, 133 Vt. 234, 239-40 (1975). The former test was more forgiving: representation used to pass muster unless it was "so rife with shortcomings and of such low calibre as to amount to no representation." In re Cronin, 133 Vt. at 336 (quoting In re Murphy, 125 Vt. 272, 274 (1965)).

170. In re Hatten, 156 Vt. 374, 378 (1991) (quoting Russo v. Griffin, 147 Vt. 20, 24 (1986)). See also In re J.B., No. 91-223, slip op. 5 (Vt. Nov. 6, 1992) (defendant must show counsel's representation fell below "objective standard of reasonableness informed by prevailing professional norms"); State v. Bristol, No. 91-314, slip op. 4 (Vt. Aug. 21, 1992) (same).

171. See In re J.B., No. 91-223, slip op. 6 (Vt. Nov. 6, 1992) (lawyer's Miranda advice to talk to police); State v. Bristol, No. 91-314, slip op. 4-5 (Vt. Aug. 21, 1992) (right to effective assistance at plea-bargaining stage).

172. Evitts v. Lucey, 469 U.S. 387, 398 (1985).

173. See In re Pernicka, 147 Vt. 180, 183 (1986) (reviewing court will not judge by hindsight); In re Kasper, 142 Vt. 31, 37, 38 (1982); State v. Smith, 140 Vt. 247, 261-62 (1981). Compare In re J.B., No. 91-223, slip op. 6-7 (Vt. Nov. 6, 1992) (lawyer's advice to cooperate with police was "no strategy at all").

174. In re Savo, 139 Vt. 527, 529 (1981).

175. Strickland v. Washington, 466 U.S. 668, 688-89 (1984).

176. See In re Pernicka, 147 Vt. 180, 183 (1986) (accepting Strickland's dictum that "no detailed set of rules for counsel's conduct" can be fashioned).

177. The Fourth Circuit in Coles v. Peyton, 398 F.2d 224 (4th Cir. 1968), adopted the following standards: an attorney must (1) confer with the client as early as possible and as often as necessary; (2) advise the client of the charges against him and his rights; (3) ascertain and develop all appropriate defenses; (4) conduct all necessary investigations; and (5) allow time for reflection and preparation. The American Bar Association Criminal Justice Standards spell out particular responsibilities in its section on the Defense Function. 1 ABA Standards ch. 4; see, in particular, §§ 3.1, 3.2, 3.8, 4.1, 6.1-6.2, 7.2, 7.7, 7.10, and 8.1-8.2.

178. In re Rebideau, 139 Vt. 530 (1981); In re Savo, 139 Vt. 527 (1981).

179. State v. Bristol, No. 91-314, slip op. 4 (Vt. Aug. 21, 1992) (dictum).

180. In re Bruyette, 150 Vt. 557, 561 (1988) ("It is not reasonable for an attorney to advise a client to plead guilty to a charge for which the State lacks admissible evidence."). See also Kimmelman v. Morrison, 477 U.S. 365, 385 (1986).

181. In re J.B., No. 91-223 (Vt. Nov. 6, 1992).

182. State v. Meyers, 153 Vt. 219, 223 (1989); State v. Nichols, 150 Vt. 563, 564 (1988).

183. See § 6.25, infra.

184. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); State v. Bristol, No. 91-314, slip op. 4 (Vt. Aug. 21, 1992).

185. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); State v. Bristol, No. 91-314, slip op. 4 (Vt. Aug. 21, 1992). See also Kimmelman v. Morrison, 477 U.S. 365, 381 n.6 (1986); United States v. Cronic, 466 U.S. 648, 657-62 (1984). In rare circumstances a showing that counsel's error changed the result may not be sufficient. In Lockhart v. Fretwell, 61 L.W. 4155 (1993), the defense lawyer in the penalty phase of a capital case failed to make an objection which would have been granted under current law, and which would have changed the outcome. The case which supported the unmade objection was subsequently overruled, however, and the Supreme Court held that the defendant had not been prejudiced, inasmuch as the proceedings were neither unreliable nor fundamentally unfair.

186. Hill v. Lockhart, 474 U.S. 52, 59 (1985); In re Fisher, 156 Vt. 448, 460-61 (1991).

187. The Supreme Court has adopted the same approach for claims of suppression of exculpatory evidence. United States v. Bagley, 473 U.S. 667, 682 (1985). See § ___, infra.

188. Chapman v. California, 386 U.S. 18 (1967).

189. Chapman v. California, 386 U.S. 18, 24 (1967).

190. In re Ringler, No. 90-198, slip op. 4-5 (Vt. Feb. 7, 1992); In re Fisher, 156 Vt. 448, 462 (1991).

191. In re Fisher, 156 Vt. 448, 462 (1991) (citing In re Pernicka, 147 Vt. 180, 183 (1986)). The court in Fisher disavowed dicta in In re Bruyette, 150 Vt. 557, 562 (1988), which appeared to adopt a Chapman test for prejudice. See also In re Ross, No. 90-141 (Vt. Feb. 7, 1992); State v. Farr, No. 90-134 (Vt. May 17, 1991) (mem.).

192. Strickland v. Washington, 466 U.S. 668, 692 (1984).

193. Strickland v. Washington, 466 U.S. 668, 692 (1984). Cf. United States v. Morrison, 449 U.S. 361 (1981) (defendant must show "demonstrable prejudice or substantial threat thereof"); Weatherford v. Bursey, 429 U.S. 545, 558 (1977) (undercover officer's presence at attorney-client meetings not per se sixth amendment violation).

194. Strickland v. Washington, 466 U.S. 668, 692 (1984); Cuyler v. Sullivan, 446 U.S. 335 (1980).

195. No. 91-223 (Vt. Nov. 6, 1992).

196. In re J.B., No. 91-223, slip op. 5. (Vt. Nov. 6, 1992).

197. In re Savo, 139 Vt. 527, 529 (1981).

198. Burger v. Kemp, 483 U.S. 776 (1987); Strickland v. Washington, 466 U.S. 668, 692 (1984); Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

199. Holloway v. Arkansas, 435 U.S. 475, 484 (1975).

200. Burger v. Kemp, 483 U.S. 776, 783 (1987). Cf. In re T.E., 155 Vt. 172, 177-78 (1990) (no conflict, or immaterial conflict, in same lawyer representing siblings with different interests in CHINS proceedings).

201. See § 6.11, supra (describing the system of assigned counsel contractors whose principal function is to avoid conflict of interests).

202. Holloway v. Arkansas, 435 U.S. 475, 475 n.5 (1978).

203. Wheat v. United States, 486 U.S. 153, 164 (1988).

204. State v. Gabaree, 149 Vt. 229 (1988) (quoting State v. Durling, 140 Vt. 491, 497-98 (1981)). See also State v. Campanelli, 142 Vt. 363, 366 (1982). See §§ 44.01-41.04, infra.

205. It is therefore not uncommon for defendants to follow a no-plain-error affirmance on appeal with a PCR claiming ineffective assistance of counsel. See, e.g., In re Ross, No. 90-316 (Vt. Feb. 14, 1992); State v. Ross, 152 Vt. 462 (1989); In re Kasper, 142 Vt. 31 (1982). State v. Kasper, 137 Vt. 184 (1979).

206. See In re J.B., No. 91-223 (Vt. Nov. 6, 1992) (where the ineffectiveness claim was first litigated in a postrial motion).

207. V.R.Cr.P. 44.2(c). For assigned counsel and public defenders, "the responsibility for the representation shall continue in all subsequent proceedings until the attorney is relieved by the Defender General, the trial court making the appointment or by the Supreme Court on appeal." A.O. 4 § 4(b). Withdrawal only by leave of the court is also the rule for appeals, V.R.A.P. 45.1(f), and in civil proceedings, V.R.C.P. 79.1(f).