In Re Bruyette

7ermont Superior Court
Filed
Rutland nit

VERMONT SUPERIOR COURT Ky CIVIL DIVISION
Rutland Unit Case No. 182-3-18 Rdev
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

In Re: Joseph Bruyette

FINDINGS AND ORDER

This is a post-conviction relief petition brought by Joseph Bruyette alleging ineffective assistance
of counsel. The court held a final hearing on this matter on November 18, 2024. The Petitioner was
represented by Attorneys Alexander Donn and Briana Houser. The Respondent was represented by
Attorneys Michael Novelli and Franklin Paulino. Petitioner filed a post-hearing memorandum on
December 23, 2024, along with a response to the Respondent's oral motion for judgment as a matter of
law. Respondent filed a post-hearing memorandum on December 30, 2024, arguing that the petition
should be denied because Petitioner failed to prove his claim of ineffective assistance of counsel, and
because the Petition is barred as a matter of law under the doctrine of claim preclusion. For reasons
explained below, the Petition for post-conviction relief is denied.

Findings of Fact
The court finds the following facts by a preponderance of the evidence. Petitioner was convicted
of one count of burglary and three counts of sexual assault in docket number 536-4-87 Rcr. Ex. 1, p. 2.
Attorney Joseph Kershaw represented Petitioner at his sentencing. Id at 1. A presentence investigation
report ("PSI") was authored by Probation and Parole Officer Terri Forte and filed with the court on
January 11, 1990. Ex. 1, p. 2; Ex. 2, p. 14. An addendum was filed on January 16, 1990 by Ms. Forte. Ex.
1, p. 2. Attorney Kershaw reviewed the PSI with Petitioner and filed written objections to the PSI on
January 23, 1990. Id. at 3.
On January 26, 1990, the trial court held a contested sentencing. Ex. 1. At the beginning of the
hearing, Attorney Kershaw told the court the Petitioner wished to file motion for the appointment of
cea

new counsel. Id. at 4. The trial court declined to hear the motion at the sentencing and indicated it would
be set for a separate hearing. Id at 5. Attorney Kershaw raised five objections to the PSI, which the trial
court addressed prior to the presentation of evidence or argument. Td. at 3-13. The court sustained
Attorney Kershaw's first, third, and fourth objection and overruled his second objection. Id The court
allowed Attorney Kershaw to supplement how Petitioner had done since his initial incarceration on the
case with additional testimony or oral presentation. Id at 13. Petitioner declined to be interviewed for the
PSI because he had not spoken with his attorney. Ex. 2, p. 3.

Attorney Kershaw did not present any testimony or evidence at the sentencing. Ex. 1, p. 14.
Attorney Kershaw began his argument to the court with the following:
Thank you, your Honor. I have not had the pleasure to appear before this Court in any
other proceedings. And I am not well versed as to what the Court might be looking for
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and expect at a sentencing proceeding. Prior to my practice here in Vermont, I practiced in
the State of Florida for about 15 years.

Ex. 1, p. 25. Attorney Kershaw went on to respond to the State’s sentencing argument, addressing general
deterrence, rehabilitation, and Petitioner’s criminal record. Id. at 25-28. Attorney Kershaw argued for a
sentence that would have some portion suspended to allow for inpatient treatment. Id. at 30.
At the end of Attorney Kershaw’s argument, the court turned to the Petitioner and asked the
following:
Mr. Bruyette, is there anything you wish to say on your own behalf? I invite you at this
point to tell me anything you feel I should know about yourself or about the case.
Anything that may not be included in the presentence investigation report. Anything that
you may think that you would like to state in different terms than Mr. Kershaw has stated.

Id. at 31. Petitioner responded through Attorney Kershaw who stated, “Your Honor, Mr. Bruyette would
just like me to inform the court that he understands the pain that the victim went through. He is sorry
that this happened to her.” Id. The trial court addressed the arguments raised by Attorney Kershaw, but
ultimately rejected them in imposing a sentence of 45-85 years to serve on consecutive sentences. Id. at 36.
The trial court included the following as part of its analysis in determining the appropriate sentence:

 “Is there a rehabilitation program that is ready for Joe Bruyette now? An outpatient program.
Nope. Nope.” Ex. 1, p. 33.
 “Joe Bruyette is a devout hedonist. What he wishes to take, he will take, What he wishes to obtain,
he will obtain. Joe Bruyette’s satisfaction is the center of his decisions.” Id.
 “What he did is nearly indescribable in the devastation to his target … I have never seen a witness
sit in the witness box and giver her testimony for two solid days with her head down and with the
tears flowing, sincerely. And that only began to describe the depth of the hurt.” Id. at 34.
 “There is real punishment involved in this sentence because it hast to be that way.” Id. at 35.
 “It is safety now for Tracy Christie and safety for all victims.” Id. at 36
After Petitioner’s conviction and sentence was affirmed on appeal, Petitioner filed a motion for sentencing
review. Ex. 3, p. 1. The trial court denied Petitioner’s motion through a written decision on March 3,
1993. Id. at 5.
Petitioner presented two witnesses at the final hearing in this case: Crystal Barry and Daniel Albert.
Crystal Barry is a rostered psychotherapist employed at Therapeutic Works, Inc with a Master’s Degree in
clinical psychology. She has worked in the mental health field for eighteen years. Ms. Barry was hired to
review Petitioner’s case. She gathered historical information about Respondent’s upbringing, education,
mental health, substance use, and criminal record.
Attorney Daniel Albert is a criminal defense attorney who practiced in Franklin and Grand Isle
Counties for thirty-one years. He received his law degree from the Northeastern University School of Law
and was admitted to practice in 1981. For sixteen years, Attorney Albert acted as a supervisor of other
defense attorneys. He has participated in approximately three hundred sentencing hearings.
Attorney Albert was hired to evaluate the performance of Petitioner’s trial counsel, Joseph
Kershaw, during his sentencing hearing. Attorney Albert reviewed the transcript for Petitioner’s

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sentencing, the PSI, the Supreme Court decision affirming Petitioner’s convictions and sentence, and the
testimony of Ms. Barry. Attorney Albert opined that Attorney Kershaw provided ineffective assistance of
counsel. Attorney Albert identified the following areas of possible deficiency:
1. Attorney Kershaw stated he was not well versed in what the trial court was looking for.
2. Attorney Kershaw did not present any information about Petitioner as an individual, only making
generic arguments.
3. Attorney Kershaw didn’t present any information about Petitioner’s background.
4. Attorney Kershaw didn’t participate in Petitioner’s PSI interview after repeated attempts by Ms.
Forte to reach out to him.
Attorney Albert opined there were hints in the PSI that would have been helpful to Petitioner at
sentencing. He opined that a defense attorney should investigate a client’s past in order to present
mitigating evidence at the sentencing to humanize the client. Attorney Albert opined that if the court had
been presented with mitigating evidence from Petitioner’s childhood, there is a reasonable probability the
outcome would have been different.
During cross-examination, Attorney Albert acknowledged that Attorney Kershaw had practiced
for fifteen years in Florida, representing defendants in serious cases. He acknowledged Attorney Kershaw
made objections to the PSI. He acknowledged that Attorney Kershaw did reference Petitioner’s history
with probation and parole and the impact that had on Petitioner’s family during his argument. Attorney
Albert acknowledged Attorney Kershaw made an articulate argument about the importance of
rehabilitation and the weakness of deterrence. He acknowledged the trial court reviewed the PSI.
Analysis
I. Merits of Claim of Ineffective Assistance of Counsel
In considering an ineffective assistance of counsel claim, the court “must consider the totality of
the evidence before the judge or jury.” Strickland v. Washington, 446 U.S. 668, 695 (1984). The standard the
court must apply is as follows:
Vermont uses a two-part standard for evaluating an ineffective assistance of counsel claim
- a test that is essentially equivalent under the United States and Vermont constitutions.
Ineffective assistance of counsel cases first require that the petitioner show by a
preponderance of the evidence that defense counsel's performance fell below an objective
standard of reasonableness informed by prevailing professional norms. If this first burden
is met, petitioner must further show that counsel's performance prejudiced the defense by
demonstrating a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.
In re Combs, 2011 VT 75, ¶ 9, 190 Vt. 559 (internal quotations and citations omitted). To establish the first
element, “petitioner must first overcome the strong presumption that counsel[‘s] performance, absent the
distorting effects of hindsight, fell within the wide range of reasonable assistance.” In re Plante, 171 Vt. 310,
313 (2000). As to the second element, the United States Supreme Court has defined a “reasonable
probability” in this context as “a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “In making this showing, petitioner cannot rely on the distorting effects of
hindsight, and must surpass the strong presumption that counsel's performance fell within the wide range
of reasonable professional assistance.” In re Grega, 2003 VT 77, ¶ 7, 175 Vt. 631 (mem.).

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The thrust of Petitioner’s allegations is that Attorney Kershaw did not adequately prepare for his
sentencing. Specifically, Petitioner alleges Attorney Kershaw did not properly investigate Petitioner’s
childhood such that mitigating evidence could have been presented at the sentencing. Petitioner relies
upon the testimony of Ms. Barry and Attorney Albert.
At the hearing, the court allowed Ms. Barry to testify about what information she gathered about
Petitioner. This testimony was not admitted for the truth of what happened in Petitioner’s childhood, but
rather for the limited purpose of what information could have been gathered through additional
investigation. There was no admissible evidence presented by Petitioner at the hearing regarding his
childhood experiences. As such, the court could not make a finding as to what childhood traumas
Petitioner experienced that could have been presented at the sentencing hearing.
Petitioner relies upon Attorney Albert’s opinion to prove his ineffective assistance of counsel
claim. Attorney Albert was qualified as an expert to testify in this case. Pursuant to Vermont Rules of
Evidence 702, an expert may testify in the form of an opinion if “(1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.” An expert’s opinion testimony need
not be validated by empirical studies, but must be based on “sufficient facts or data.” State v. Noyes, 2021
VT 50, ¶ 38. It is, however, “within the purview of the trier of fact to assess its credibility and determine
the weight to be assigned to it.” Assoc’s, Ltd. V. Daewoo Elec. Am., Inc., 2008 VT 14, ¶ 16. In other words,
“[a] court is not required to credit an expert witness’ opinion whenever the witness is qualified to testify as
an expert.” State v. Sullivan, 2018 VT 112.
In this case, Attorney Albert faulted Attorney Kershaw for not properly investigating Petitioner’s
childhood. “In assessing counsel’s investigation, we must conduct an objective review of their
performance, measured for ‘reasonableness under prevailing professional norms.” Wiggins v. Smith, 539
U.S. 510, 521 (quoting Strickland, 446 U.S. at 688). Attorney Albert opined Petitioner had childhood
trauma that could have been presented to the sentencing judge as mitigating evidence. The court cannot
credit this testimony as there was no reliable evidence presented by Petitioner on what occurred in his
childhood. Although facts or data relied upon by an expert need not be admissible for the expert to rely
upon them under Vermont Rules of Evidence 703, they must be “of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject.” V.R.E. 703. There was
no testimony from Attorney Albert regarding whether the information provided by Ms. Barry is
information “of a type reasonably relied upon by experts” such as himself. Without this testimony, the
court cannot conclude that the assertions regarding Petitioner’s childhood are reliable facts or data that
could support Attorney Albert’s opinion. Without knowing what mitigating evidence could have been
discovered through a more thorough investigation, the court cannot find Attorney Kershaw’s performance
was deficient. The court does not credit Attorney Albert’s testimony that Attorney Kershaw’s
performance fell below an objective standard of reasonableness informed by prevailing professional norms
in not investigating Petitioner’s background.
Attorney Albert further opined Attorney Kershaw’s performance was deficient because of his
statement to the trial court, “I have not had the pleasure to appear before this Court in any other
proceedings. And I am not well versed as to what the Court might be looking for and expect at a
sentencing proceeding.” Ex. 1, p. 25. The court views this statement as an introduction by Attorney
Kershaw to a new judge, rather than an admission by him that he did not know what he was doing.
Unfamiliarity with the court is not in and of itself sufficient to demonstrate a deficiency. See e.g. U.S. v.
Lewis, 786 F.2d 1278, 1281-2 (5th Cir. 1986) (lack of familiarity with local court rules is insufficient to show
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deficient performance without demonstrating specific errors and prejudice). This introductory statement
does not demonstrate a deficiency of Attorney Kershaw.
Attorney Albert further opined that Attorney Kershaw’s failure to communicate with Petitioner
during the PSI was a deficiency. This opinion was not supported by the facts. Although there was
mention of Ms. Forte attempting to reach out to Attorney Kershaw in the PSI, there was also the
statement at the sentencing by Attorney Kershaw that he has reviewed the PSI with the Petitioner.
Furthermore, the fact that Attorney Kershaw filed objections to the PSI demonstrates some
communication between him and the Petitioner, although that doesn’t necessarily demonstrate when those
communications occurred. With this inconsistent record, the court cannot find that Attorney Albert’s
opinion regarding a deficiency in communication between Attorney Kershaw and the Petitioner is
supported by reliable facts.
Finally, Attorney Albert opined that Attorney Kershaw’s arguments at sentencing were deficient
because they were generalized as opposed to specific to the Petitioner. The court disagrees. Although
Attorney Kershaw’s argument did lean towards the general, he did specifically address the Petitioner being
failed by the system, the fact that Petitioner’s criminal record was primarily property crimes, and
referenced the impact the sentence would have on Petitioner’s family. Ex. 1., p. 26-29. In addition, the
trial court stated, “I think the argument made by Joe Kershaw today is one of the most magnificent
arguments on the weaknesses of the deterrence notion that I have ever heard.” Id. at 32. Trial counsel are
afforded a wide degree of discretion regarding strategy at trial and “failure of that strategy is not the
standard by which a reviewing court will measure trial counsel’s competence.” In re Dunbar, 162 Vt. 209,
212 (1994). Attorney Albert’s opinion relies upon the distorting effects of hindsight, which the court
cannot consider. In re Grega, 2003 VT 77, ¶ 7. Given the high praise by the trial court for Attorney
Kershaw’s argument, the court cannot find that his strategy fell below prevailing standard.
Attorney Kershaw is presumed to have performed within the wide range of reasonable
professional assistance and Petitioner has to prove that he did not. Id. The court cannot find, based upon
the evidence present at the hearing that Petitioner overcame this presumption and met his burden that
Attorney Kershaw’s performance was deficient. As such, Petitioner cannot meet his burden to prove
ineffective assistance of counsel.
Assuming in arguendo that Petitioner had met his burden to prove Attorney Kershaw’s
performance was deficient, he separately did not meet his burden of showing prejudice. Petitioner has the
burden of proving Attorney Kershaw’s alleged deficiency resulted in prejudice to him. As the Vermont
Supreme Court has noted, there are unique challenges to proving prejudice to a Petitioner as a result of
deficiencies at a sentencing hearing:
The great difficulty with proving actual prejudice to the defendant at sentencing is that it
can only be met through evidence about something which did not occur. The PCR judge
cannot ask the sentencing judge if the sentence would have been different if he or she had
heard a more effective presentation from the defense. See, e.g., Perkins v. LeCureux, 58 F.3d
214, 220–21 (6th Cir.1995) (petitioner cannot prove that counsel's ineffective assistance
prejudiced his defense using testimony of sentencing judge; risk of inaccuracy outweighs
probative value of testimony, and inquiry into judge's mental processes undermines judicial
immunity, comity, independence and finality of judgments). Instead, the PCR court must
determine whether there is sufficient circumstantial evidence to support a finding that there
is a reasonable probability that the weakness in petitioner's defense altered the outcome.
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In re Williams, 2014 VT 67, ¶ 29, 197 Vt. 39. In determining whether there is a reasonable probability that
the outcome would be different, “[a] mere showing that the attorney error had ‘some conceivable effect on
the outcome’ is insufficient.” Id. at ¶ 34 (quoting Strickland, 466 U.S. at 693). Based upon the evidence
presented, the court cannot conclude Petitioner has demonstrated that there is a reasonable probability
that the weakness in Attorney Kershaw’s performance altered the outcome of the sentence.
The trial judge in this case was clear in his analysis why he was sentencing Petitioner to a long
period of incarceration. The court outright rejected outpatient rehabilitation, given Petitioner’s history.
Ex. 1, p. 33. The court described Petitioner as a “devout hedonist” who did what he wanted and took
what he wanted. Id. In describing the impact on the victim, the court stated, “What he did is nearly
indescribable in the devastation to his target … I have never seen a witness sit in the witness box and giver
her testimony for two solid days with her head down and with the tears flowing, sincerely. And that only
began to describe the depth of the hurt.” Id. at 34. As such, the court concluded real punishment and
incapacitation for the safety of the victim required a lengthy sentence. Id. at 36. Although Attorney Albert
opined that mitigating evidence would have changed the outcome in this case, the sentencing transcript
does not support this opinion. There is insufficient circumstantial evidence presented by the Petitioner to
demonstrate there is a reasonable probability the sentence would have been different if Attorney Kershaw
had presented evidence of Petitioner’s background.
Petitioner has failed to meet his burden on the second Strickland prong, as such he has not met his
burden to prove ineffective assistance of counsel.

II. Motion for Judgment As A Matter of Law Under Doctrine of Claim Preclusion

Alternatively, even assuming Petitioner had proved an ineffective assistance of counsel claim, the
Court would grant the State’s motion for judgment as a matter of law, on grounds of claim preclusion.

“Claim preclusion, also referred to as res judicata, ‘bars the litigation of a claim or defense if there
exists a final judgment in former litigation in which the parties, subject matter and causes of action are
identical or substantially identical.’” Sutton v. Purzycki, 2022 VT 56, ¶ 21, 217 Vt. 326 (quoting, with
internal quotations omitted, Lamb v. Geovjian, 165 Vt. 375, 379 (1996)). These conditions are met here. In
a PCR petition filed by Mr. Bruyette in this Court in 2014 (docket number 587-9-14 Rdcv), he claimed—
just as he does in the instant proceeding—that his sentencing counsel provided ineffective assistance of
counsel for failing to investigate and present mitigating evidence.1 The State pled “abuse of the writ” as to
such claim and the court granted summary judgment to the State on that ground.

In the context of PCR claims by a prisoner, the “abuse of the writ” doctrine ordinarily supplants,
and is applied in place of, the doctrine of claim preclusion. See id. In re Laws, 2007 VT 54, ¶ 14, 182 Vt. 66.
Like claim preclusion, the “abuse of the writ” doctrine may bar a successive PCR petition for having
sought relief on grounds that were previously known by the petitioner but not previously asserted in the

1 Based on filings made in that prior PCR proceeding, which filings were submitted by the State in the instant case (as exhibits in

support of the State’s motion to dismiss filed on November 15, 2024), the Court takes judicial notice of claims made by the
parties in the prior proceeding, as well as actions taken by the courts in that other proceeding. See McCormick on Evidence § 330
(8th ed., July 2022 update) (judicial notice may be taken of “claims made by the parties in the other case and action taken by the
court in the other proceeding” but not “of factual determinations or contested facts in other cases”); see also Fine Foods, Inc. v.
Dahlin, 147 Vt. 599, 604-05 (1986) (trial court may take judicial notice of facts after the close of evidence).
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earlier petition. See id. ¶ 15. A petitioner may survive a motion to dismiss for abuse of writ if the
petitioner proves: (a) “that some objective factor external to the defense impeded counsel’s efforts to raise
the claim in the earlier proceeding” (i.e., “cause”); and (b) “not merely that the errors at his trial created the
possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions” (i.e., “actual prejudice”). Id. ¶¶ 20-21. By contrast, the
doctrine of claim preclusion applies to bar claims that were litigated by the same parties, as well as those
that were not litigated but should have been raised in the prior litigation, regardless of any proof that the
petitioner or plaintiff may be able to marshal on the issues of cause or actual prejudice. See In re Dunkin
Donuts S.P. Approval (Montpelier), 2008 VT 139, ¶ 10, 185 Vt. 583 (mem.) (“Claim preclusion is a rigid
doctrine that ends litigation without regard to equitable considerations”).

In docket number 587-9-14 Rdcv, the Court (Hoar, J.) granted the State’s motion for summary
judgment and dismissed the petition “with prejudice.” The Court observed that Petitioner had failed—
despite ample opportunity and time—to demonstrate why his ineffective assistance of counsel claim was
not precluded by the “abuse of the writ” doctrine. On appeal, the Vermont Supreme Court issued an
unpublished entry order affirming the dismissal. The Supreme Court concluded that Petitioner failed to
“produce any evidence to demonstrate ‘cause and actual prejudice,’” and thus failed to meet his evidentiary
burden—to “disprove” the State’s well-pled claims of abusive petitions. In re Bruyette, 2019 WL 6523008,
at *2 (Vt. Dec. 2, 2019) (unpub. mem.).

The dismissal granted in the 2014 litigation will be given preclusive effect here. Petitioner argues
that the judgment in the 2014 case was not a decision on the merits, and thus, should have no preclusive
effect. To the contrary, the prior dismissal was made “with prejudice,” upon granting the State’s motion
for summary judgment. See Giantasio v. D’Agostino, 862 F. Supp. 2d 343, 349 (S.D.N.Y. 2012) (“A dismissal
with prejudice constitutes a judgment on the merits just as fully and completely as if the order had been
entered after trial.” (omitting internal quotation marks)). Petitioner appears to be arguing that because he
was never granted an opportunity to prove his ineffective assistance claim at trial in the 2014 litigation, the
dismissal in that case was not a decision on the merits. However, “a judgment on the merits for purposes
of res judicata is not necessarily a judgment based upon a trial of contested facts; it may, for example, be a
default judgment, a judgment on stipulation or agreement, or a summary judgment.” Id. (removing
alterations and internal quotations); see, e.g., Deutsche Bank v. Pinette, 2016 VT 71, ¶¶ 16-18, 202 Vt. 328
(dismissal of foreclosure action under V.R.C.P. 41(b) for plaintiff’s failure to prosecute a claim of default
judgment, though issued without notice that dismissal was “with prejudice,” operates as adjudication on
the merits for purposes of claim preclusion doctrine). Further, a decision on summary judgment is
essentially a determination that the plaintiff or petitioner has failed to adduce sufficient admissible
evidence to warrant a trial; the failure to have contested facts decided at trial is only because the plaintiff or
petitioner did not survive summary judgment. Petitioner was never denied the opportunity to have an
evidentiary hearing in the prior case, except for his lack of proof at the summary judgment stage.

As noted, claim preclusion was historically inapplicable to PCR proceedings. In re Laws, 2007 VT
54, ¶ 14. However, Petitioner’s claims in this case raise the identical ineffective assistance counsel claim
raised in his 2014 petition. To not apply the doctrine of claim preclusion under these facts would be
illogical as it would allow a petitioner to repeatedly raise, in successive petitions, identical claims for of
ineffective assistance of counsel that were already adjudicated to have been “abusive.”

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Thus, because the parties, the subject matter, and the claims raised now by Petitioner are identical
to those raised in No. 587-9-14 Rdcv, and because they were dismissed with prejudice on the merits, the
present claims are barred from litigation under the doctrine of claim preclusion.

Conclusion
For the foregoing reasons, Mr. Bruyette’s petition for post-conviction relief is DENIED. The
Respondent’s motion for judgment as a matter of law is GRANTED in the alternative. Judgment is
entered for the Respondent.

Electronically signed on February 4, 2025 pursuant to V.R.E.F. 9(d)

__________________________
Alexander N. Burke
Superior Court Judge

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