In re Frederick Sheldon

VERMONT SUPREME COURT Case No. 2020-186
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
OCTOBER TERM, 2021
In re Frederick Sheldon* } APPEALED FROM:
} Superior Court, Rutland Unit, Civil Division
} CASE NO. 293-6-17 Rdcv
Trial Judge: William D. Cohen
In the above-entitled cause, the Clerk will enter:
Petitioner appeals the order of the civil division denying his petition for post-conviction
relief (PCR). We affirm.
Petitioner was charged with first-degree aggravated assault in September 2014 based on
allegations that he assaulted his girlfriend, who was living with him at the time. He was
convicted by a jury and received a sentence of three-to-twelve years’ imprisonment. Petitioner
was released on parole after three years. He filed this PCR action, asserting that his conviction
should be vacated because his trial counsel rendered ineffective assistance.
In September 2019, the civil division held an evidentiary hearing, after which it issued an
order denying petitioner’s PCR claim. The court made the following findings in its order. The
affidavit filed by the arresting police officer stated that in September 2014, the complainant
reported to him that petitioner had assaulted her. The complainant stated that the altercation
began when petitioner found a hotel key card and accused her of cheating. During the course of
the fight, petitioner climbed on top of her, choked her, and banged her head against the floor.
She tried to leave but petitioner dragged her back into the apartment. She was only able to calm
him by laying down with him. Fearful for her safety, she waited three days before filing for an
abuse prevention order and reporting the incident to police.
After taking her statement, the police officer went to petitioner’s home. The officer
approached the back of the building, following a stone pathway around the side of the building.
At the back, there was a screen door through which the officer could see petitioner. The officer
asked petitioner to step outside and petitioner complied. The officer then placed petitioner under
arrest and escorted him to the police department for processing.
At the police department, the officer informed petitioner of his Miranda rights. Petitioner
acknowledged his rights and agreed to talk to the officer about the incident. He agreed that he
and the complainant had an altercation two days earlier. He said that she had initiated the fight
by losing her temper and throwing things at him. He told the officer that the complainant had

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bitten his finger and would not let go, so he grabbed her. The officer related the complainant’s
version of events to petitioner, and he responded that he could not believe that happened. The
officer asked petitioner why he had strangled the complainant, and petitioner responded that all
he knew was that she was biting his finger. Petitioner told the officer that they had both
consumed a large amount of alcohol. The officer asked petitioner whether he denied choking the
complainant, and he stated, “I don’t know, sir, all I know, umm, I really don’t remember.” The
officer asked if petitioner denied causing the complainant’s injuries, and petitioner stated that he
could not.
The trial took place in December 2014. The complainant, her drug-treatment provider,
and the police officer testified consistently with the allegations in the affidavit. The officer
testified about petitioner’s post-arrest statements, including the fact that he did not deny choking
the complainant. Petitioner also took the stand. He testified that the complainant drank a lot and
was drinking on the day in question. She was angry and took a walk, and when she returned she
was angry and started throwing things at him and biting his fingers. In response he pushed her
against the wall. He could not recall what happened after that. He stated that he had no
knowledge of strangling the complainant. At closing, trial counsel focused on petitioner’s
testimony that the complainant bit his finger. Counsel argued that any injuries the complainant
sustained were an accidental consequence of petitioner trying to remove his finger and that he
did not specifically intend to strangle her. The jury found petitioner guilty of aggravated assault.
In the PCR action, petitioner argued that trial counsel was ineffective because he failed to
file a motion to suppress the statements petitioner made after his warrantless arrest, and because
he failed to investigate whether the complainant’s injuries could have been caused by her ex-
boyfriend, with whom she had a tumultuous relationship. The PCR court concluded that the first
claim failed because it was unlikely that a motion to suppress would have been granted. It
reasoned that petitioner’s arrest did not violate the Fourth Amendment and, under this Court’s
decision in State v. Libbey, 154 Vt. 646 (1990) (mem.), likely did not violate Article 11 of the
Vermont Constitution. As to the second claim, the court was persuaded by the testimony of the
State’s expert that the failure to pursue a third-party defense did not fall below the standard of
care.
On appeal, petitioner challenges the PCR court’s ruling that trial counsel’s failure to
move to suppress his post-arrest statements did not constitute ineffective assistance. Petitioner
contends that the officer violated Article 11 of the Vermont Constitution by arresting him within
his home without a warrant and absent exigent circumstances. Accordingly, he argues, the
inculpatory statements he made following his arrest should have been excluded.
When seeking to vacate a conviction based on ineffective assistance of counsel, a
petitioner “must show by a preponderance of the evidence that counsel’s performance fell below
an objective standard of reasonableness informed by prevailing professional norms.” In re
Dunbar, 162 Vt. 209, 212 (1994). If the petitioner meets that burden, the petitioner must then
show that he was prejudiced by the deficient performance “by demonstrating ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). This is a
difficult standard to meet; defense attorneys have wide discretion in decisions regarding trial
strategy and there is a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. (quotation omitted). When reviewing a PCR decision,
“[w]e will not disturb the decision of the trial court unless clearly erroneous.” In re Miller, 168
Vt. 583, 584 (1998) (mem.).

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We conclude that the PCR court’s determination that counsel’s performance did not fall
below the objective standard of reasonableness is supported by the evidence. As the court found,
trial counsel opted not to file a motion to suppress petitioner’s statements because he did not
believe he had a viable claim. The State’s expert testified at the PCR hearing that there was
compelling federal and state case law indicating that such a motion would not succeed. The
court therefore did not err in concluding that trial counsel’s decision not to pursue the motion
under these circumstances fell within his broad discretion to make strategic decisions.
Counsel’s decision not to file a motion to suppress was reasonable given the state of the
record and existing case law. The U.S. Supreme Court has held for purposes of the Fourth
Amendment that “where the police have probable cause to arrest a suspect, the exclusionary rule
does not bar the State’s use of a statement made by the defendant outside of his home, even
though the statement is taken after an arrest made in the home in violation of Payton [v. New
York, 445 U.S. 573 (1980)].” New York v. Harris, 495 U.S. 14, 21 (1990). Thus, even
assuming that petitioner was arrested in his home without a warrant, the statements would not be
subject to exclusion under the Fourth Amendment.
Moreover, petitioner’s claim that his warrantless arrest violated Article 11 would have
been unlikely to succeed given the record in this case, and our analysis in State v. Libbey, a case
involving facts very similar to this one. 154 Vt. at 646. In Libbey, two police officers who had
probable cause to arrest the defendant for sexual assault on a child, drove to the defendant’s
house, parked their unmarked car in his driveway, and walked to the side door. The defendant
saw the officers drive in and met them at a screen door on the porch of his residence. As he
stood there, one of the officers, whom the defendant recognized as a police officer, asked him to
step outside. When he complied, the officers informed the defendant of the charge and arrested
him. The defendant moved to suppress statements he subsequently made at the police station,
arguing that his arrest violated Article 11 of the Vermont Constitution. The trial court denied the
motion.
We affirmed the denial of the motion to suppress. Id. We first noted that the defendant’s
statements would be admissible at trial under the Fourth Amendment even if he had been
arrested inside his home, citing Harris. Id. We rejected the defendant’s argument that Article 11
prohibited a warrantless arrest on the steps of his home absent exigent circumstances. We
reasoned that Vermont Rule of Criminal Procedure 3(a) permits a law enforcement officer to
arrest a person without a warrant if the officer has probable cause to believe that the person has
committed a felony. Id. We further reasoned that there is a difference between a driveway, steps
and a walkway to a home and other areas of the curtilage because, absent some indicia of privacy
like a fence or gate, they ‘serve[] as the normal access route for anyone visiting the premises.’ ”
Id. (quoting State v. Ryea, 153 Vt. 451, 453 (1990)). Accordingly, we concluded that the arrest
of defendant outside of his porch, an area within this implied license to approach, did not violate
Article 11.
Petitioner argues that Libbey is distinguishable because he was behind a screen door
inside his home, not on an enclosed porch, when the officer first approached. He claims that he
was effectively placed under arrest within his home when the police officer asked him to step
outside at a time when he was sitting at his kitchen table.
The question before us is not whether or how we should now distinguish this case from
Libbey, but whether his counsel was ineffective for failing to make such an argument by filing a
motion to suppress prior to trial. Petitioner’s counsel had reviewed an affidavit in which the

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arresting officer testified that he saw petitioner through the screen door and asked if he would
step outside the residence, and petitioner agreed. Counsel could reasonably assess that the court
was likely to credit this testimony. On this view of the facts, the case would be difficult to
meaningfully distinguish from Libbey. See In re Kirby, 2012 VT 72, ¶ 13, 192 Vt. 640 (“Where
the theory of law is untested or unsettled, counsel cannot be faulted for failing to raise every
possible defense—this is both an unduly heavy and impractical burden.”). We agree with the
civil division that trial counsel was not ineffective for not pursuing a motion that would likely
have been futile. See In re Miller, 168 Vt. at 585 (“Since the motion would not have been
granted, we cannot find ineffective assistance of counsel based on the failure to file it.”).
Affirmed.
BY THE COURT:
Beth Robinson, Associate Justice
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice