State v. Boskind
Annotate this Case
State v. Boskind (98-470 & 99-335); 174 Vt. 184; 807 A.2d 358
[Filed 28-Aug-2002]
[Motion to Reconsider & Clarify Granted 28-Aug-2002]
ENTRY ORDER
SUPREME COURT DOCKET NOS. 98-470 & 99-335
AUGUST TERM, 2002
State of Vermont } APPEALED FROM:
}
v. } District Court of Vermont,
} Unit No. 2, Chittenden Circuit
Jethro S. Boskind }
} DOCKET NO. 1351-3-98 Cncr
State of Vermont }
}
v. }
}
John S. Boardman } DOCKET NO. 912-2-98 Cncr
In the above-entitled cause, the Clerk will enter:
The State's June 6, 2002 motion to reconsider and clarify the opinions
in the above appeal issued on May 24, 2002 is granted. With respect to the
majority slip opinion, footnote five on page ten and the last five words of
the third full sentence on page nine, beginning with the word "or," are
stricken. With respect to the dissenting slip opinion, the last sentence
of the full paragraph beginning on page six and extending to page seven, as
well as footnote two and the citation following the last sentence of the
paragraph, are also stricken. In all other respects, the opinions remain
the same.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
------------------------------------------------------------------------------
State v. Boskind (98-470) & State v. Boardman (99-335)
[Filed May 24-2002]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
Nos. 98-470 & 99-335
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Jethro S. Boskind March Term, 2000
State of Vermont
v.
John S. Boardman
Brian L. Burgess, J. (98-470)
Amy M. Davenport, J. (99-335)
Jane Woodruff, Department of State's Attorneys, Montpelier (98-470), and
Lauren Bowerman, Chittenden County State's Attorney, Burlington (99-335),
for Plaintiff-Appellee.
Robert Appel, Defender General, and William A. Nelson, Appellate Attorney,
Montpelier (98-470), and Paul D. Jarvis of Jarvis and Kaplan, Burlington
(99-335), for Defendants-Appellants.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J. In these consolidated cases, defendants appeal their
enhanced convictions for driving while intoxicated. The appeals present
four significant issues: (1) whether a defendant can challenge a prior
conviction used to enhance a sentence when the challenge is based on a
claim other than a violation of right to counsel; (2) when a defendant has
a right to challenge a prior
conviction the State intends to rely upon for sentence enhancement, whether
the proper forum for exercising that right is the sentencing proceeding in
district court or a post-conviction relief (PCR) proceeding in superior
court; (3) when the appropriate remedy for a defendant's challenge to a
predicate conviction is governed by the post conviction relief statute (13
V.S.A. § 7131), whether a defendant who challenges the prior conviction is
"in custody under sentence" within the meaning of § 7131 when the
defendant is no longer in custody for the conviction being challenged; (4)
when a defendant challenges a prior conviction used for enhancement
purposes on the basis of a failure to comply with V.R.Cr.P. 11, whether
the burden of proof to demonstrate compliance shifts to the State where
the defendant's evidence raises a substantial question about whether the
defendant's plea to the challenged conviction was made in compliance with
V.R.Cr.P. 11.
We hold that a defendant's right to challenge a prior conviction that
the State intends to use to enhance a sentence is not limited solely to a
claim that the conviction was obtained in violation of right to counsel.
We further determine that the challenge must take place in superior court
pursuant to Vermont's post conviction relief statute and that a defendant
is "in custody under sentence" for purposes of invoking the jurisdictional
requirement of § 7131 where the defendant is challenging his current
sentence by attacking the constitutionality of a prior conviction used to
enhance the defendant's current sentence. We also conclude that the
burden of proof remains on the defendant where the defendant's challenge
to the prior conviction is based upon a claim that the trial court did not
comply with V.R.Cr.P. 11 in accepting defendant's plea to the challenged
predicate conviction.
Accordingly, we affirm the enhanced sentences imposed upon the
respective defendants and hold that defendants, should they challenge
convictions on the basis of a claim that the trial court did
not comply with V.R.Cr.P. 11, must do so pursuant to 13 V.S.A. § 7131 where
they have the burden to show that the trial court did not substantially
comply with V.R.Cr.P. 11 in their pleas and that this noncompliance
prejudiced them.
In February 1998, defendants John Boardman and Jethro Boskind were
each separately arrested for DUI and charged with violating 23 V.S.A. §
1201(a)(2) ("A person shall not operate, attempt to operate, or be in
actual physical control of any vehicle on a highway . . . when the person
is under the influence of intoxicating liquor."). For each defendant, the
State sought the enhanced penalty for a DUI-third offense pursuant to 23
V.S.A. § 1210(d) ("A person convicted of violating section 1201 of this
title who has twice been convicted of violation of that section shall be
fined not more than $2,500.00 or imprisoned not more than five years, or
both."). The State alleged that defendant Boardman had been previously
convicted of DUI in 1991 and 1992, and that defendant Boskind had been
previously convicted of DUI in 1988 and 1991.
Defendant Boardman moved to dismiss the DUI-third offense enhancement,
claiming that his prior DUI convictions, in each of which he was
represented by counsel and pled guilty, were products of unconstitutional
guilty pleas because of failure to comply with V.R.Cr.P. 11. Defendant
Boskind moved to dismiss his enhancement, claiming that the 1991
conviction, in which he was represented by counsel, was the product of an
unconstitutional nolo contendere plea because the court did not comply
with V.R.Cr.P. 11. (FN1)
The district court denied defendant Boardman's motion to dismiss his
prior convictions, precluding his collateral attack on the sentence
enhancement, because both of his prior convictions were counseled and had
not been appealed, litigated in post-conviction proceedings, or withdrawn.
Defendant Boardman pled guilty to the offense pursuant to a conditional
plea agreement, by which he was sentenced to 2-to-4 years of supervised
community service, but reserved the right to appeal from the denial of his
motion to dismiss the enhancement allegation. After the court denied his
motion to dismiss his prior conviction, defendant Boskind also pled guilty
to the offense pursuant to a conditional plea agreement, by which he was
sentenced to a term of 1-to-5 years, and similarly preserved his right to
appeal.
Both trial courts relied on Custis v. United States, 511 U.S. 485
(1994), in denying each defendant's motion. In Custis, the United States
Supreme Court considered the availability, during federal sentencing
hearings, of collateral attacks on prior convictions that serve as the
basis for enhancement under the Armed Career Criminal Act (ACCA). See 18
U.S.C. § 924(e). The Court held that Congress did not intend to permit
defendants to challenge the validity of such convictions at federal
sentencing hearings, except in cases where the prior convictions were
obtained in total denial of the right to counsel, contrary to Gideon v.
Wainwright, 372 U.S. 335 (1963). Cutis, 511 U.S. at 496; see also Burgett
v. Texas, 389 U.S. 109, 115 (1967); United States v. Tucker, 404 U.S. 443,
448 (1972).
Since briefing and oral argument in this case, the United States
Supreme Court has issued
two decisions amplifying the meaning of Custis. (FN2) In Daniels v. United
States, 532 U.S. 374 (2001), the Court considered whether, after the
sentencing proceeding has concluded, the individual who was sentenced may
challenge his federal sentence through a motion under the federal post
conviction relief statute (28 U.S.C. § 2255) on the ground that his prior
convictions were unconstitutionally obtained. The Court held that "as a
general rule, he may not." Id. at 376. In Lackawanna County District
Attorney v. Coss, 532 U.S. 394 (2001), the Court again confronted the
question of whether federal post conviction relief is available when a
prisoner challenges a current sentence on the ground that it was enhanced
based on an allegedly unconstitutional prior conviction for which the
petitioner is no longer in custody. The Court determined that "relief is
similarly unavailable to state prisoners through a petition for a writ of
habeas corpus under 28 U.S.C. § 2254." Id. at 397.
The decisions in Daniels and Coss put to rest the debate over whether
- as defendants originally argued - the lesson to be gleaned from Custis
was merely about where a defendant could attack a prior conviction for
constitutional infirmity ("Custis presented a forum question. The issue
was where, not whether, the defendant could attack a prior conviction for
constitutional infirmity." Nichols v. U.S., 511 U.S. 738, 765 (1994)
(Ginsberg, J., dissenting) (emphasis in original)). As the dissent here
accurately observes, many state courts allowed a challenge to a predicate
conviction within an enhanced sentence proceeding for reasons other than
denial of counsel because prior to Custis, it was assumed that the
federal constitution required the procedure. Defendants acknowledge - as
they must - that in light of Custis and subsequent cases, the issue before
us is not
whether the procedure they seek is constitutionally required, but whether,
as a matter of policy we should allow the challenges to predicate
convictions within the enhanced sentencing proceedings or whether the
challenge should be by a petition to superior court for post conviction
relief, assuming that the "in custody" requirement was satisfied. We
agree that Daniels and Coss do not alter the issue before us.
While Daniels and Coss are conclusive as to the limitations placed
upon defendants who seek a federal forum to collaterally attack a current
sentence on the ground that it was enhanced based on an allegedly
unconstitutional prior conviction, the decisions do not preclude this Court
from deciding: (a) whether a defendant may collaterally challenge a prior
conviction which the State intends to rely upon to enhance a sentence when
the challenge is based on a claim other than a violation of the right to
counsel, and (b) if so, where that challenge should take place.
We hold that a defendant's collateral challenge to a prior conviction
upon which the State relies to enhance a sentence is not limited solely to
claims of invalidity based upon a violation of the right to counsel.
Defendants and the State agree that Vermont practice since In re Stewart,
140 Vt. 351, 438 A.2d 1106 (1981), has been to permit post-conviction
relief challenges to "enhancement" convictions, so long as the petitioner
was "in custody" on the recidivist sentence. See In re Kasper, 145 Vt.
117, 118, 483 A.2d 608, 609 (1984). Challenges to the State's reliance on
predicate convictions used to enhance or subject a defendant to recidivist
penalties have been predicated - as defendants seek to do in the instant
case - on alleged Rule 11 violations. See, e.g. id. (Rule 11); In re
LaMountain, 170 Vt. 642, 643, 752 A.2d 24, 25 (2000) (mem.) (petitioner
collaterally attacked a 1985 DUI conviction for Rule 11 violation but
revocation of petitioner's driver's license for life as a result of
predicate convictions insufficient to establish "in custody under sentence"
as required
by post-conviction relief statute).
Indeed, although defendants, in supplemental briefing, express concern
that the holdings of Daniels and Coss may lead to similar restrictions
under Vermont's post-conviction relief statute we note that "the
compelling interest . . . in the finality of convictions" that grounds the
Supreme Court's determination in both cases acknowledges the significance
of state-created review of convictions:
Once a judgment of conviction is entered in state court, it is
subject to review in multiple forums. Specifically, each State
has created mechanisms for both direct appeal and state
post-conviction review . . . even though there is no
constitutional mandate that they do so.
Coss, 532 U.S. at 402.
It would be anomalous, to say the least, if at the moment the United
States Supreme Court was limiting access to post-conviction relief in
federal forums because of confidence in state post-conviction review
procedures, we chose this time to narrow the grounds upon which a
collateral attack on a predicate conviction could be made in a post
conviction relief proceeding.
Defendants further assert that if they may challenge prior convictions
that the State intends to use for sentence enhancement purposes, they are
entitled to do so at the sentencing hearing in district court. (FN3)
Defendants also contend that, as a practical matter, the district court is
in a better
position to determine the validity of prior convictions, as the files and
transcripts may be more readily available.
We disagree. We note that even those decisions that predate Daniels
and Coss overwhelmingly determined that such challenges should occur in
post-conviction relief procedures, not at sentencing hearings. See, e.g.,
United States v. Clark, 203 F.3d 358, 363 (5th Cir. 2000), vacated by, 532 U.S. 1005 (2001) ("Custis announced only a prohibition on [collateral
attacks] in the context of federal sentencing hearings. This Court has
consistently sanctioned the use of [federal habeas corpus statute] to
attack a federal sentence being currently served on the ground that it was
enhanced on the basis of a constitutionally invalid prior conviction.");
United States v. Walker, 198 F.3d 811, 814 (11th Cir. 1999) (applying
Custis ban to prior conviction challenge at sentencing, but allowing
habeas corpus attack in separate post-conviction proceeding); United States
v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999) (same); United States v.
Garcia, 42 F.3d 573, 581 (10th Cir. 1994) (same); Fairbanks v. State, 629 A.2d 63, 68 (Md. 1993) ("A defendant who is prevented [by our ruling] from
challenging the constitutionality of a prior conviction . . . during a
sentencing proceeding . . . may thereafter mount a collateral challenge by
any means that remain available, including post-conviction procedures.").
We also are unpersuaded by defendants' argument that requiring a
defendant to proceed in
a forum other than the sentencing court "would be cumbersome and lavishly
wasteful of resources." In asserting that records and transcripts
relating to challenged predicate convictions would be more readily
available at the court in which the sentencing hearing is held, defendants
envision a more orderly confluence of present court and past record than
is reflected by experience. The prior conviction being attacked is
ordinarily several years old. It may have been a conviction resulting
from a proceeding in the same courthouse, but is as likely to have been a
conviction obtained in another district court, or, indeed, an out-of-state
court. Custis itself recognized a distinction between a Gideon error -
presumably the most easily identified basis for challenge - and other
constitutional challenges that "would require sentencing courts to rummage
through frequently nonexistent or difficult to obtain state-court
transcripts." Cutis, 511 U.S. at 497. Although defendants argue that it
is more practical and efficient to require the district court to determine
the validity of its own convictions, we disagree and decline to "force the
sentencing court to look behind every conviction with practically no
record to rely on." State v. Delacruz, 899 P.2d 1042, 1049 (Kan. 1995).
(FN4)
Moreover, we concur with Custis's observation that allowing attacks
for non-Gideon error at sentencing would only result in "delay and
protraction of the . . . sentencing process." Cutis, 511 U.S. at 497.
"Other courts have also recognized the need to limit the defendant's right
to be heard
at sentencing to prevent the sentencing hearing from becoming a trial."
People v. Padilla, 907 P.2d 601, 609 (Colo. 1995); see also United States
v. Fondren, 54 F.3d 533, 534 (9th Cir. 1994) (rejecting judicial economy
arguments and adopting Custis rule).
Of equal or greater significance than matters of administration and
expeditiousness of sentencing are the benefits offered by utilizing
established PCR procedures for challenges to non-Gideon errors:
The defendant must allege with specificity the claimed
deficiencies, thus allowing the State a reasonable opportunity to
investigate, respond, and prepare a defense. Prior proceedings,
including any direct appeals and previous collateral challenges,
can be explored, with concomitant opportunity to determine
whether the issues have been previously litigated, waived, or are
otherwise barred by prior proceedings.
Fairbanks, 629 A.2d at 65. Indeed, in a PCR, the State has the ability to
call the defendant as a witness, whereas in a sentencing proceeding it
does not. Providing a clear record and fully articulated arguments from
all material witnesses in a PCR appeal is precisely why we have a 13
V.S.A. §§ 7131-7137. See Stewart, 140 Vt. at 356, 438 A.2d at 1107-08)
(PCR statutes "enacted to simplify the often cumbersome procedures
associated with habeas corpus . . . and to provide a more convenient forum
for obtaining relevant records and witnesses."). (FN5)
Adhering to our PCR procedures safeguards a defendant's rights while
promoting the State's interest in finality of judgments. See In re
Rebideau, 141 Vt. 254, 257, 448 A.2d 144, 146 (1982) ("[P]ost-conviction
relief is not a vehicle for reexamining a defendant's guilt or innocence,
but is
rather designed to correct fundamental trial errors without jeopardizing
the State's interest in finality."); State v. Provencher, 128 Vt. 586,
591, 270 A.2d 147, 150 (1970) ("[F]inality . . . is of vital significance
in the administration of criminal justice.") (Holden, C.J., concurring with
all members of the Court in accord). Although the dissent asserts that
adherence to established PCR procedures may result in offenders convicted
in DUI enhancement cases serving their sentences before a PCR petition
challenging a predicate conviction is resolved (in superior court), our
system of justice does not guarantee convicted defendants that all avenues
of appeal must be exhausted before any sentence is imposed. If PCR
decisions in cases of collateral attack on predicate DUI convictions
demonstrate that defendants are serving all or most of their sentence prior
to a PCR determination that the predicate convictions used for enhancement
are constitutionally infirm, the Supreme Court by administration or rule
may calibrate a practical remedy to a real - not theoretical - problem.
Nor do we agree with the dissent's view that our approach will bring
the "risk" of early constitutional challenges to convictions. If one
assumes - as we do - that a constitutional challenge is made in good
faith, early challenges to convictions ought to be encouraged. We fail to
see how the defendant, judicial administration, or justice are served by a
system that provides incentives for defendants or their counsel to ignore
alleged constitutional violations at the time they take place in the
belief that some tactical advantage may be gained by challenging a
conviction remote in time. If "risk-benefit" analysis is to be used, we
seek the benefit of ensuring that constitutional attacks on convictions
are resolved as early as possible, whatever risk this may pose to an
increase in judicial workload.
Given these policy concerns, it simply cannot be persuasively
maintained that defendants
should be allowed to challenge their predicate convictions at the
sentencing phase of an enhancement charge. If defendants choose to
challenge the district courts' compliance with V.R.Cr.P. 11 in taking
defendants' prior pleas, they must do so in PCR proceedings pursuant to 13
V.S.A. § 7131.
Defendants express concern that, since their sentences for their
predicate convictions have expired, they may not be able to avail
themselves of post-conviction relief because of 13 V.S.A. § 7131's
requirement that only a defendant who is "in custody under sentence" may
challenge his or her conviction. The State concedes, however, that a
defendant seeking to challenge an expired prior DUI conviction that was
used to enhance a sentence satisfies the "in custody under sentence"
requirement of § 7131. As the Third Circuit Court of Appeals explained:
[A post-conviction relief] petitioner in custody under a sentence
enhanced by a prior conviction may attack that prior conviction,
even if he is no longer in custody for it. However, he may do so
only in the context of a challenge to the enhanced sentence for
which he is in custody. In other words, a prisoner may attack
his current sentence by a [post-conviction] challenge to the
constitutionality of an expired conviction if that conviction was
used to enhance his current sentence.
Young v. Vaughn, 83 F.3d 72, 77-78 (3rd. Cir. 1996); see also Williams v.
Edwards, 195 F.3d 95, 96 (2d Cir. 1999) ("However, the 'in custody'
requirement for federal habeas jurisdiction is satisfied when a pro se
petition, liberally construed, can be read as asserting a challenge to a
current sentence, as enhanced by an allegedly invalid prior conviction.")
(citation omitted).
Finally, defendants argue that if they can show near non-compliance
with V.R.Cr.P. 11 in their prior plea proceedings, the burden of proof
should shift to the State to show that those convictions may nevertheless
be used to enhance their subsequent sentences. This contention is
essentially the corollary to defendants' argument that they should be
allowed to challenge their prior
convictions at sentencing. We have already rejected this premise by
holding that defendants may challenge their predicate convictions only in
PCR proceedings. Accordingly, we reject defendants' burden-shifting
argument, and hold that the burden is on defendants to prove that their
respective trial courts did not substantially comply with V.R.Cr.P. 11 in
accepting their plea agreements and that this non-compliance prejudiced
their pleas. See In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113
(1997); see also Fairbanks, 629 A.2d at 65 ("Because a facially valid
conviction is entitled to a strong presumption of regularity, [a
post-conviction relief] procedure clearly places the burden of proof where
it should be - upon the defendant attacking the conviction.").
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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Footnotes
FN1. Transcripts from defendant Boardman's 1991 and 1992 convictions
reveal that in each case defendant executed waiver of rights forms and
written plea agreements, the court inquired and confirmed that defendant
understood these documents, and that defendant stipulated to a factual
basis for the charge. The State contends that the V.R.Cr.P. 11 colloquies
at the changes of plea hearings in 1991 and 1992 were adequate. See State
v. Morrissette, 170 Vt. 569, 570-71, 743 A.2d 1091, 1093 (1999) (mem.).
Transcripts from defendant Boskind's 1991 conviction reveal that the court
inquired and confirmed that defendant understood the charges and penalties
he was facing, and that a factual basis was given by the State. The State
contends that the V.R.Cr.P. 11 colloquy at this hearing was adequate. See
Morrissette, 170 Vt. at 570-71, 743 A.2d at 1093.
FN2. We granted defendant's Motion for Leave to File Supplemental Briefs to
address the relevance of Daniels and Coss. In supplemental briefing, the
defendants and the State each argue that the opinions are unnecessary to a
resolution of this case. "Daniels and Coss should have no effect on the
Court's decision in these cases." "This Court need not consider Coss or
Daniels in this appeal."
FN3. Defendant Boardman also asserts that the prior offense is an element
of the repeat-offender charge and that, under 23 V.S.A. § 1210(d), the
jury was not at liberty to acquit him on the ground that a predicate
conviction was legally invalid. We have, however, previously addressed
that issue in State v. Porter, 164 Vt. 515, 520, 671 A.2d 1280, 1283-84
(1996), noting:
Although we require the State to allege prior convictions as an
element of the repeat-offender charge, we nevertheless held in
[State v. Cameron, 126 Vt. 244, 249, 227 A.2d 276, 280 (1967)]
that "the fact of a prior conviction or convictions does not
become material until after the conviction of the accused on the
substantive offense on trial is established and then only for the
purpose of enabling the trial judge to impose the proper
sentence." . . . The bifurcated procedure established in Cameron
. . . is expressly intended to allow a jury to convict or acquit
a defendant of the substantive offense without regard to any
prior offenses for which the defendant was convicted.
FN4. The dissent's exception to our judgment as to the policy choice best
fitted to Vermont's trial courts is based upon the California Supreme
Court's assessment of "efficient judicial administration" in the
California judiciary. See People v. Allen, 981 P.2d 525, 532 ( Cal. 1999)
(internal citation omitted). Although the dissent has characterized the
California approach as "carefully calibrated" to meet the administrative
difficulties of predicate conviction challenges in enhancement proceedings,
three members of the seven member Court in Allen expressed reservations
about the majority's confidence in the ease of administration. See id. at
540 (Baxter, J., concurring) ("[T]he instant majority opinion rel[ies]
heavily on the assumption that a complete record of the prior conviction
will be readily available, so that it can easily be ascertained whether . .
. procedures were followed. However, our own decisions belie this
assumption.").
FN5. While the dissent accurately notes that DUI enhancement in Vermont can
only be based on Vermont convictions, collateral challenges to predicate
convictions in the district court would not, under the dissent's
rationale, be limited solely to DUI prosecutions. Out of state convictions
are relevant to several penalty enhancement statutes. See, e.g., 13
V.S.A. § 2602 (lewd and lascivious conduct with child); 13 V.S.A. §
1063(a)(2) (aggravated stalking).
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Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
Nos. 98-470 & 99-335
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Jethro S. Boskind March Term, 2000
State of Vermont
v.
John S. Boardman
Brian L. Burgess, J. (98-470)
Amy M. Davenport, J. (99-335)
Jane Woodruff, Department of State's Attorneys, Montpelier (98-470), and
Lauren Bowerman, Chittenden County State's Attorney, Burlington (99-335),
for Plaintiff-Appellee.
Robert Appel, Defender General, and William A. Nelson, Appellate Attorney,
Montpelier (98-470), and Paul D. Jarvis of Jarvis and Kaplan, Burlington
(99-335), for Defendants-Appellants.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J., dissenting. If the majority opinion provided a
meaningful remedy for a defendant, facing an enhanced sentence, to
challenge a predicate conviction, I would join it. The reality, however,
is that the challenge method the majority has allowed is likely, in DUI
cases like those before us, to provide relief only after the defendant has
served the enhanced sentence. Thus,
the remedy comes too late to be meaningful, an overriding factor ignored by
the majority. For that reason, I dissent.
Consistent with its decision that these defendants can bring
post-conviction relief (PCR) proceedings under 13 V.S.A. § 7131, but only
after defendants have been sentenced on the enhanced offense, the majority
faced two options on how it would allow defendants to challenge one or more
of the predicate convictions: (1) as defendants sought, they could
challenge the predicate offenses as part of the proceedings in the
criminal case in which the State seeks enhancement; or (2) defendants
could challenge the predicate convictions in a PCR filed under § 7131. In
choosing to allow only the second option, the majority relies heavily on
three decisions of the United States Supreme Court - Custis v. United
States, 511 U.S. 485 (1994); Lackawanna County District Attorney v. Coss,
532 U.S. 394 (2001); and Daniels v. United States, 532 U.S. 374 (2001). I
do not find these decisions to be dispositive.
If this case had arisen before Custis, it is highly likely that
defendants would have prevailed. Although we had never ruled directly on
the question presented here, the lower courts were allowing constitutional
challenges to predicate convictions based on guilty pleas in the proceeding
in which the State was seeking an enhanced sentence, and we reviewed a
number of these decisions without questioning the procedure. See, e.g.,
State v. Tatro, 161 Vt. 182, 186, 635 A.2d 1204, 1207 (1993). The
procedure was consistent with black letter law from around the country:
Generally, underlying prior convictions based on pleas of guilty
must be obtained in compliance with constitutional standards, and
a plea without these advisements may not be used to supplement
the charge in an habitual offender proceeding, or to serve as a
basis for enhancing punishment.
24 C.J.S. Criminal Law § 1658, at 308-09.
Custis changed this situation primarily by ruling that this procedure
is not constitutionally
required except in the case of challenges based on denial of the right to
counsel. 511 U.S. at 496. Thus, in light of the Custis holding,
defendants have not argued here that the procedure they seek is
constitutionally required. They argue instead that it is the fairest and
most efficient method of resolving the legality of predicate convictions
and is consistent with the statutory scheme.
Some, but not yet a majority of, state courts have reconsidered their
holdings on challenging predicate convictions in light of Custis. Many of
these courts have assumed that defendants were allowed to challenge
predicate convictions within the enhanced sentence proceeding for reasons
other than denial of the right to counsel because it was thought that the
federal constitution required this procedure. Once Custis made clear
there was no such constitutional requirement, these courts simply
abandoned the challenge procedure in non-counsel cases without analysis of
whether it should be continued as a policy matter. Thus, these courts
never considered the arguments defendants are making here.
Among the remaining courts that have considered the policy arguments,
the most thorough and persuasive analysis has come from the California
courts. In a pre-Custis decision, the California Supreme Court held in
People v. Sumstine, 687 P.2d 904, 914 (Cal. 1984) that a defendant could
challenge a predicate conviction, within the enhanced sentence proceeding,
where the challenge alleged that the predicate conviction was based on an
unconstitutional guilty plea procedure in violation of the requirements of
Boykin v. Alabama, 395 U.S. 238 (1969). In reaching this decision, the
court relied upon an earlier case, People v. Coffey, 430 P.2d 15 (Cal.
1967), in which the challenge of the predicate conviction was based on a
denial of the right to counsel. Coffey held that "it is clearly in the
interest of efficient judicial administration that attacks upon the
constitutional basis of prior convictions be disposed of at the earliest
possible opportunity, and we are therefore of the view that, if the issue
is properly raised at or prior to trial, it must be determined by the trial
court." Id. at 22. Sumstine held that this rationale applied equally in
cases involving challenges to predicate convictions based on
constitutional attacks to the guilty plea procedure. 687 P.2d at 912-13.
In three decisions, the California Supreme Court reconsidered Sumstine
after Custis. See People v. Allen, 981 P.2d 525 (Cal. 1999); Garcia v.
Superior Court, 928 P.2d 572 (Cal. 1997); People v. Horton, 906 P.2d 478
(Cal. 1995). In the last and most relevant, People v. Allen, (FN1) the
court rejected the analysis of Custis that suggested that considering
attacks on predicate convictions in the enhanced sentence proceeding was
not the most efficient procedure. Central to the court's decision is its
recognition that:
Custis . . . set[s] the floor for federal constitutional purposes,
[but does] not . . . prohibit states from establishing rules of
procedure to facilitate the smooth and efficient operation of
their trial courts.
Allen, 981 P.2d at 537. That recognition should guide this decision, but
unfortunately does not. I discuss the California court's reasoning in
connection with the majority's analysis of these issues below.
Although it is in a sense backward, I start with the majority's
reasons not to allow the challenge to the predicate convictions in the
enhanced sentence proceeding. The majority draws two from the Custis
analysis. The first is that requiring PCR review supports finality of
judgments. Custis explained this policy as additional support for its
conclusion, stating that " 'inroads on the concept of finality tend to
undermine confidence in the integrity of our procedures.' " 511 U.S. at
497 (quoting United States v. Addonizio, 442 U.S. 178, 184 n.11 (1979)).
It also noted that this
concept has extra weight when the challenged judgment is based on a guilty
plea.
As commentators noted about Custis, the Court's discussion of finality
of judgments made sense only if the Court was precluding all federal
review of state judgments that are used as a predicate to an enhanced
federal sentence. See Note, More than a Question of Forum: The Use of
Unconstitutional Convictions to Enhance Sentences Following Custis v.
United States, 47 Stan. L. Rev. 1323, 1336 (1995). As the majority notes
here, that is exactly the effect of the later cases, Daniels v. United
States and Lackawanna County Dist. Attorney v. Coss. Thus, the Custis rule
supports a total denial of review, not a decision on where and when review
should occur. The majority acknowledges that we are deciding where and
when review should occur, not whether review should occur. While the
majority suggests that finality of a predicate judgment is promoted by
requiring that the challenge to it be in a separate PCR proceeding, exactly
the opposite is true. Allowing the challenge in the enhancement criminal
case will only deny its use in enhancement. A successful PCR challenge
will entirely overturn the judgment.
Like the Supreme Court in Custis, the majority grounds most of its
rationale on practical concerns. The Supreme Court noted in Custis that
it is easy to determine whether there has been a denial of right to
counsel, the only ground on which it allowed a challenge to the predicate
conviction, but not easy to determine whether a guilty plea was voluntary,
knowing and intelligent. It commented that federal courts would have to
"rummage through frequently nonexistent or difficult to obtain state-court
transcripts or records that may date from another era, and may come from
any one of the 50 States." Custis, 511 U.S. at 496. It also noted that
such challenges would "require . . . delay and protraction of the federal
sentencing process." Id. at 497.
The majority relies on the above language from Custis noting that the
needed transcript may come from any district court in Vermont or from
another state. It also asserts that allowing
challenges to predicate convictions in the criminal proceeding in which the
State seeks the enhanced sentence would turn sentencing into a trial. It
asserts that a PCR proceeding allows for notice and evidentiary
development, including calling the defendant as a witness, and that these
important procedures could not happen in the district court. Finally, it
asserts that more complicated enhancement proceedings impose a substantial
burden on the district court. None of these reasons are persuasive.
With respect to the availability of transcripts, Custis eliminated any
problem to the State or the court caused by the unavailability of
transcripts in its holding that defendant has the burden to show lack of
substantial compliance with Rule 11, a holding in which I join. See also
State v. Brown, 165 Vt. 79, 88, 676 A.2d 350, 356 (1996) (in challenging
predicate DUI convictions on basis of denial of right to counsel, a
defendant has the burden to show he was eligible for appointed counsel).
Even if defendant did not have the burden, I cannot accept the argument
that we face difficulty in obtaining needed transcripts. Nowhere in our
criminal and PCR appeal decisions is there any indication that lack of
transcripts has made impossible review of guilty pleas, even pleas
rendered some years ago. Nor is the majority's concern about the
availability of out-of-state transcripts an issue because DUI enhancement
in Vermont can be based only on Vermont convictions. (FN2) See 23 V.S.A.
§ 1210(d) (enhancement based on prior violations of "section 1201 of
this title").
Second, DUI enhancement is already part of the trial in Vermont. See
State v. Cameron, 126 Vt. 244, 249-50, 227 A.2d 276, 280 (1967).
Enhancement is determined by the jury in "the second phase of the
bifurcated proceeding." State v. Baril, 155 Vt. 344, 346, 583 A.2d 621,
622 (1990). The majority's characterization of the claim in this case as
"defendants should be allowed to challenge their predicate convictions at
the sentencing phase of an enhancement charge" shows a fundamental
misunderstanding of the enhancement procedure in this state. Even if the
majority's discussion accurately described the enhancement process,
however, it ignores that the constitutionality of a guilty plea is a
question of law that must be raised pretrial in a motion to suppress or
strike. See V.R.Cr.P. 12(b); see also People v. Allen, 981 P.2d at 532.
Resolution of a challenge to a predicate conviction could not hold up
sentencing. Further, adherence to the motion rules will allow exactly the
notice and evidentiary development that the majority sees in PCR
proceedings.
The Supreme Court of California thoroughly examined the burden of
resolving guilty plea related challenges to predicate convictions in the
enhanced sentence proceeding. See Allen, 981 P.2d at 537. Based on 15
years of allowing such challenges, it found that they entailed "little
disruption." Id. Our limited experience in handling such challenges also
shows no disruption. See, e.g., Tatro, 161 Vt. at 186, 635 A.2d at 1207.
I think the California conclusion is particularly reliable because the
court did refuse to allow predicate conviction challenges in the
enhancement proceeding if the challenge is based on ineffective assistance
of counsel. See People v. Garcia, 928 P.2d at 579. There the court found
that allowing such challenges would seriously disrupt the criminal trial
in the enhancement proceeding. Thus, the court carefully calibrated the
administrative difficulties raised by the type of challenge
involved. (FN3)
Although none of our cases indicate that additional evidence would be
necessary in a Rule 11 proceeding, the majority raises the specter that
such evidence could not be obtained from the defense in a criminal motion
hearing. In fact, we held that the defendant could be required to give
exactly such evidence in Brown, 165 Vt. at 88, 676 A.2d at 356. Moreover,
the California courts routinely require such evidence in challenges to
predicate convictions based on guilty pleas because the California rule is
that the defendant must show that despite the lack of advisement from the
court he or she did not actually know of the rights being waived. See
Allen, 981 P.2d at 535. Thus, the defendant must routinely testify in
California, and despite the need to take additional evidence, the
California Supreme Court found no substantial burden from challenges to
predicate convictions.
The majority's final reason is equally unavailing. The majority has
simply transferred a burden from the district court to the superior court.
Since trial judges are assigned to superior and district court as needed
to meet demand, and are frequently assigned to both courts at once, I fail
to see how a decision on which court will hear a predicate challenge is
relevant. Indeed, the risk of the majority's approach is that defendants
will bring early challenges to convictions that will never actually be
used for enhancement purposes knowing that a later challenge will be
ineffective. Thus, the risk is that the majority's ruling will increase
the work of the trial courts, not decrease it.
While I find the majority's reasons for its policy choice weak, my
fundamental disagreement with the majority lies in its failure to consider
the main reason why not to require a separate PCR
proceeding in DUI enhancement cases. Although a third conviction of DUI is
a felony, a defendant is unlikely to spend much more than a year in jail
for this offense alone. At the same time a PCR petition challenging a
predicate conviction is unlikely to be resolved in less than a year in most
superior courts in Vermont. Thus, PCR relief can come only after a
defendant has served all, or most of, a sentence. It is not a practical
remedy because it does not precede the imposition of the enhanced
sentence.
The majority's secondary response is that if the above accurately
states the facts we can "calibrate a practical remedy to a real - not
theoretical - problem." Ante at 11. I hope our criminal rules committee
will act on this statement to provide by rule the meaningful remedy the
majority is unwilling to provide by this decision.
But I am more concerned by its primary response - that defendants are
not entitled to "all avenues of appeal" before sentence is imposed. The
question before us is whether we should consider the challenge to the
predicate conviction an essential part of the criminal case in which
enhancement is sought or a separate event to occur in a later separate
proceeding, post-conviction relief. In neither case is it an appeal, and
labeling it so does not advance our inquiry except to belittle the
position that we should ensure that a sentence is correctly and
constitutionally imposed in compliance with the law before demanding that
a defendant serve that sentence. Because I hold that position, and
believe that ensuring the accuracy of a conviction is more important than
ensuring a speedy sentencing, I dissent. I am authorized to state that
Justice Johnson joins this dissent.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Allen arose under California's three strikes law for recidivist felony
convictions. The issue does not actually arise in DUI cases in California
because the right to challenge predicate convictions within the DUI case
in which enhancement is sought is provided by statute in California. See
Cal. Veh. Code § 41403 (2000).
FN2. The majority has responded that the rationale of this dissent would
apply to other enhancement schemes where the predicate convictions do not
have to have occurred in Vermont courts. I disagree. My only point is
that the difficulty of determining the validity of out-of-state
convictions is not relevant to the enhancement scheme currently before this
Court.
The concurring opinion in People v. Allen urged that the defendants
not be allowed to challenge predicate out-of-state convictions in the
enhancement proceeding. 981 P.2d at 539-40. That limitation has been
imposed in the one relevant California Court of Appeal decision following
Allen. See People v. Green, 96 Cal. Rptr. 2d 811, 816-17 (Cal. Ct. App.
2000). Although I would await a case where the issue is before us, I am
not opposed to such a limitation.
FN3. The majority suggests that the California approach cannot be carefully
calibrated if three members of the California Supreme Court concurred in
the Allen decision, but did not join its reasoning. In fact, the main
point of the concurrence was to support additional restrictions on
challenging predicate convictions, not directly raised by the facts of the
case. Allen, 981 P.2d at 538-43. I agree with the restrictions urged in
the concurrence.
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