SCOVT affirms summary judgment that there was no ineffective assistance of counsel, largely because alleged professional errors did not prejudice result.

In Re Burke, 2019 VT 28 [4/26/2019]

SKOGLUND, J. Petitioner James Burke sought post-conviction relief (PCR) alleging that his trial counsel, Attorney Daniel Maguire, provided ineffective assistance because of a conflict of interest. The PCR court denied petitioner’s motion for summary judgment and granted the State’s motion for summary judgment based on the court’s determination that Attorney Maguire did not provide ineffective counsel. Petitioner appeals and, for the reasons below, we affirm.

For PCR petitions based on ineffective counsel, the trial court outlined the Strickland two-part standard where the petitioner must show: (1) "by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness informed by prevailing professional norms"; and (2) prejudice "by demonstrating a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

 Although an expert opined that Attorney Maguire's failure to hire a forensic toxicologist fell below the prevailing professional norm, there was no evidence to support the "prejudice" prong of the test with any degree of specificity because "the results of forensic toxicological evaluation remain highly speculative at best.. Similarly even if Attorney Maguire had more effectively counseled and prepared petitioner for the competency examinations, testimony, and PSI interview, there is no evidence that demonstrates or predicts how petitioner would have done anything different.