Ineffective assistance of counsel harmless because no “reasonable probability” that petitioner would have received a different sentence.

 In re Allen, 2014 VT 53 (23-May-2014).

SKOGLUND, J. Petitioner appeals from the trial court’s order granting summary judgment to the State on his petition for post-conviction relief (PCR). He argues that the court applied improper legal standards in reaching its decision on his ineffective-assistance-of-counsel claim. We affirm.

We conclude, as a matter of law, that there is no reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the sentencing proceeding would have been different. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” [This does not require a showing that counsel's actions "more likely than not altered the outcome," but] in assessing prejudice for purposes of an ineffective-assistance-of-counsel claim, "[t]he likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 131 S. Ct 770, 792 (2011).

DOOLEY, J., dissenting.  In deciding the prejudice question as a matter of law, the court ignored perhaps the most fundamental principle of the summary judgment standard: that the trial court must view the facts most favorably to the nonmoving party and afford that party—in this case petitioner—the benefit of all reasonable doubts and inferences. Based on the record before us, a reasonable judge, viewing the evidence and all inferences favorably to petitioner, could conclude that petitioner met his burden of showing a reasonable likelihood that his sentence would have been different had his attorney not engaged in what we must presume to be ineffective assistance of counsel. For this reason, the case should be remanded for an evidentiary hearing.