Post Conviction Relief denied because “not in custody under sentence.” SCOVT divided whether in custody without bail on other charges counts.

In re Russo (2011-004)(24-May-2013)(Skoglund, J.)(Robinson, J., joined by Dooley J., dissenting.)
SKOGLUND, J.  Petitioner appeals a civil division order dismissing his post-conviction relief (PCR) petition for lack of jurisdiction.  Petitioner sought to attack convictions for which his sentences had been completed, and the court concluded that petitioner was not “in custody under sentence” as required by 13 V.S.A. § 7131.  Petitioner argued that he satisfied the custody requirement because, although his sentences were completed, they were used by the criminal division to hold him without bail pending trial on a different charge.  Because petitioner has failed to allege that his pretrial incarceration was sufficiently linked to the convictions he seeks to attack, we conclude that petitioner failed to meet the jurisdictional requirements of the PCR statute, and affirm.

ROBINSON, J., dissenting.   I don’t doubt that petitioner faces a steep uphill battle in showing the necessary causal relationship between the convictions he challenges and his hold-without-bail status, but I believe the court’s dismissal of his case on the pleadings, and prior to referral to counsel, was premature. Before closing the door to the possibility of post-conviction relief for petitioner, I believe we ought to allow for the possibility that petitioner may qualify for counsel and that counsel may present evidence or may identify and brief the issues more persuasively. For these reasons, I respectfully dissent.  I am authorized to state that Justice Dooley joins this dissent.