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State v. Russo10/8/2004
irks, 960 P.2d at 1087. Justice Mosk, who joined the Geiger opinion, concurred in overruling it because "[w]ith the experience of more than a decade, I believe that the rule of Geiger has proved to be unworkable." Id.
24. We recognize defendant's argument that the elements comparison test results in a miscarriage of justice where a lesser charge exists to fit the scenario, but does not contain exactly the same elements as the offense charged. We also recognize that there are countervailing policy considerations, as explained fully in Birks. Without fully resolving the policy arguments, we conclude, however, that in light of the clear language of Rule 31(c), and the difficulties in defining when lesser-related offense instructions are proper, change of policy in this area, if any, should come from rule-making or legislative action. We decline to impose on trial courts any obligation to go beyond the charging of leser-included offenses as determined under the traditional elements comparison test.
25. Defendant next questions the validity of his sentence. He claims that the twenty-one year sentence was based on a PSI report containing a psychiatric evaluation conducted by a non-expert who was unavailable for cross-examination. Defendant argued at the sentencing hearing that the PSI report should be rejected because the evaluator was absent or, alternatively, the hearing should be rescheduled to include the evaluator. The judge denied both requests, ruling that defense counsel was responsible for ensuring the presence of the evaluator at the sentencing hearing. Regardless of who should have called the witness, it is undisputed that defendant had only a limited opportunity to rebut the psychiatric evaluation.
26. Our rules provide for the disclosure of, and opportunity to rebut, information considered at sentencing. V.R.Cr.P. 32(c)(3), (4). When defendant challenges sentencing information, the court can respond by agreeing not to consider the information. V.R.Cr.P. 32(c)(4). In such a case, the point becomes "moot." Reporter's Notes to 1989 Amendment, V.R.Cr.P. 32; see State v. Rathburn, 140 Vt. 382, 388, 442 A.2d 452, 455 (1981) (claim that hearsay evidence used for sentencing was invalid based on the lack of opportunity for rebuttal is answered where the sentencing judge agreed not to rely on the contested material). Although the trial judge ruled that defendant was responsible for not having the evaluator at the sentencing hearing, she also indicated that she would not consider the evaluation report. As a result, any error in the court's decision was harmless.
27. Finally, defendant claims that trial counsel was ineffective for failing to: (1) conduct the factual investigation necessary to demonstrate that no automobile chase occurred and that no shots were fired; (2) subpoena the psychiatric evaluator to be present at the sentencing hearing; and (3) preserve meritorious claims for appeal. This Court is not, however, the appropriate forum to determine in the first instance whether defendant received ineffective assistance of counsel. Unless the question of effective representation of counsel is raised at trial and ruled on by the trial court, defendant must initiate a claim of ineffective assistance of counsel by post?conviction relief. See State v. Lund, 168 Vt. 102, 105, 718 A.2d 413, 415 (1998); State v. Bacon, 163 Vt. 279, 296?97, 658 A.2d 54, 66 (1995). Although defendant raised the issue of ineffective assistance of counsel at his sentencing hearing, the court never examined or ruled on it because defendant withdrew his claim. Accordingly, any claim of ineffective assistance of counsel must be raised in a petition for post-conviction relief, rather than on direct appeal.
Affirmed.
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