SCOVT reverses dismissal of PCR proceeding, because of procedural unfairness in failing to review amended petition.

In Re Dow, 2019 VT 72 [filed October 4, 2019]

EATON, J. Petitioner, Miles Otis Dow, Jr., filed a motion for post-conviction relief (PCR) with the Windham Civil Division. The Defender General's Office reviewed the petition and determined that petitioner's claims lacked merit, pursuant to 13 V.S.A. § 5233(a)(3). Petitioner amended the PCR petition, adding arguments that had not been reviewed by the Defender General's Office, and proceeded without assigned counsel.The State filed a motion for summary judgment, which the PCR court granted. Petitioner appeals the PCR court's dismissal to this Court, arguing that the PCR court erred in granting the State's motion for summary judgment because it failed to properly address the claims petitioner raised in his amended petition. We reverse and remand for the PCR court to conduct proceedings consistent with this opinion.

The lack of a complete record regarding the court's decision not to grant a second review for the amended petition results in a procedural failing that—in the interest of fairness and due process—requires us to vacate the PCR court's grant of summary judgment in favor of the State and remand for the court to determine whether or not petitioner's amended petition raises claims that may have substance and merit such that additional review by the Defender General's Office is required under 5233.