In Re Collette

2008 VT 136, 969 A.2d 101, 185 Vt. 210, 2008 Vt. LEXIS 199

• Court: Supreme Court of Vermont
• Decided: December 12, 2008
• Docket: 2007-040
• Status: Published

Opinions

Burgess, J.

¶ 1. Petitioner appeals from the trial court’s dismissal of his request for post-conviction relief (PCR) pursuant to 13 V.S.A. § 7131. Petitioner complained that his sentence for Driving Under the Influence-Second Offense (DUI-2) was enhanced on account of an improper prior conviction for a first offense of DUI-1, claiming the earlier plea of guilty was uncounseled in violation of the Sixth Amendment, and without the recitations necessary for a valid plea under Rule 11 of the Vermont Rules of Criminal Procedure. Because petitioner was discharged from his sentence before the trial court reviewed the claim, the court dismissed the petition as moot. We affirm.

¶ 2. Following his conviction and sentence for DUI-2 on October 11, 2005, petitioner filed this petition for PCR pro se on November 1, 2005, collaterally attacking his 1992 DUI-1 conviction. At the time of filing, petitioner was on probation under a suspended sentence of eighteen months to five years for his 2005 DUI-2, and so was a person “in custody under sentence of a court” entitled to seek PCR pursuant to § 7131. See State v. Wargo, 168 Vt. 231, 234-35, 719 A.2d 407, 410 (1998) (holding that probationers were “in custody” for purposes of the PCR statute). While still on probation, and with the help of an attorney, petitioner filed an amended PCR complaint on April 7, 2006, alleging violations of his right to counsel and Rule 11, and requesting the court to “vacate the convictions and sentences entered against him.”

¶ 3. The next month, on May 24, 2006, petitioner was discharged from his probation and underlying sentence for the DUI-2 conviction. Asserting lack of jurisdiction due to the expiration of the sentence, the State moved for dismissal on August 17, 2006. The trial court dismissed the action as moot on December 20, 2006, reasoning that since the sentence was over, any further court action to “undo the past and reduce sentences that petitioner has already served” would be futile, regardless of jurisdiction. Petitioner appeals, arguing that dismissal was in error because he met the jurisdictional requirements of § 7131 when the action was commenced.

¶ 4. That the court had jurisdiction when the PCR was filed does not mean the action was not moot when the trial court considered the motion to dismiss. An action “becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” State v. Lee, 2007 VT , 181 Vt. 605, 924 A.2d 81 (mem.) (quotation omitted). In this regard, the trial court correctly observed that it was obvious there was no relief left to be ordered: assuming the 1992 plea of guilty to DUI-1 was assailable procedurally, petitioner was no longer subject to any enhanced sentence that could be corrected by court order. Regardless of § 7131 jurisdiction over the subject matter of PCR, the trial court also correctly observed that it could not reverse time and undo a sentence that had already passed. As determined by the trial court, the PCR petition was moot.

¶ 5. While not briefing the issue at any length, petitioner posits that, contrary to the court’s conclusion, he remained vested in having “one less conviction” and in getting his “license back sooner”¹ — presumably on the theory that PCR would result in the erasure of his earlier 1992 DUI-1 conviction. Petitioner misapprehends the nature of the post-conviction relief afforded by § 7131 to nullify enhancement of a current sentence based on a prior conviction determined, in hindsight, as procedurally faulty, but where the prior conviction itself is final because it was never appealed or challenged in a timely fashion. As we held in State v. Boskind, 174 Vt. 184, 807 A.2d 358 (2002), where the sentence on an earlier conviction has completely expired, a petitioner may nevertheless collaterally attack the validity of the prior DUI conviction while “in custody under sentence” from a subsequent DUI conviction, but “ ‘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.’ ” Id. at 193, 807 A.2d at 365-66 (quoting Young v. Vaughn, 83 F.3d 72, 77-78 (3d Cir. 1996)) (emphasis added).

¶ 6. The dissent decries a lack of caselaw for this proposition, but it is stated in Boskind, and in its reference to Vaughn. Vaughn explained that, “although the district court lacked jurisdiction over . . . petitions attacking two convictions whose sentences had expired, we could review those sentences because of their collateral enhancement of the sentence that [petitioner] was still serving.” 83 F.3d at 76 (emphasis added) (citing Clark v. Pennsylvania, 892 F.2d 1142, 1143 n.2 (3d Cir. 1989)). That Vaughn meant no jurisdiction remained to actually strike the earlier conviction is confirmed by its reliance on Clark, which considered a petitioner’s attacks on two 1974 convictions after the sentences imposed had run, along with an attack on a 1979 conviction and a then-pending sentence enhanced because of the previous convictions, holding that “[ajlthough subject matter jurisdiction is lacking over the two earlier petitions, these convictions nonetheless are subject to limited review in the third petition because of their collateral consequences on the later 1979 conviction.” 892 F.3d at 1143 n.2 (emphasis added).

¶ 7. That the prior conviction remains final under Vaughn and Boskind is an entirely unsurprising and logical result of defendant’s election not to appeal or pursue any timely challenge to his earlier conviction. The finality of undisputed judgments is no stranger to our law, which is replete with deadlines, and indeed is expressly favored despite belatedly perceived flaws. See Lackawanna County Dist. Att’y v. Coss, 532 U.S. 394, 402-03 (2001) (explaining that collateral attack on unchallenged convictions is untenable given the primary and “compelling interest” in the finality of convictions when, because of defendant’s choice not to seek review, the “conviction becomes final and the State that secured the conviction obtains a strong interest in preserving the integrity of the judgment”).² Moreover, correcting a wrongly enhanced sentence in no way depends on overturning an expired conviction. Petitioner offers no justification why he is now entitled to an opportunity, denied all other convicted persons not charged as repeat offenders, to overturn a conviction never contested as amply provided for by law.

¶ 8. Under Boskind, collateral relief in these circumstances requires that the enhanced sentence be stricken in the event of a meritorious claim, but there is no jurisdiction to vacate the long final 1992 conviction. Thus, petitioner could achieve neither the goal of one less conviction, nor an earlier reinstatement of his license. As concluded by the trial court, whatever the enhancement of defendant’s 2005 sentence by virtue of the prior conviction, the sentence was finished, irremediable, and moot upon petitioner’s discharge from probation and his sentence.

¶ 9. The dissent advances a number of objections to the conclusion that petitioner’s claim is moot, none of which withstand scrutiny. First, the dissent posits that, as it forewarned in Boskind, 174 Vt. at 199, 807 A.2d at 370 (Dooley, J., dissenting), this case proves that Boskind can operate to deprive defendants facing an enhanced sentence based on a prior conviction of a meaningful challenge to the validity of that earlier conviction so as to avoid the enhancement. We held in Boskind that, except where a defendant claimed a prior conviction was obtained in violation of his Sixth Amendment right to counsel, attacks on the validity of prior convictions may not be made before sentencing, but must be pursued under the PCR statutes after an enhanced sentence is imposed. 174 Vt. at 191, 807 A.2d at 364. Given that PCR proceedings afforded greater opportunities to obtain necessary transcripts and to present evidence not ordinarily available at the time of sentencing, and the interest in avoiding protracted sentencing hearings, the PCR process was determined better to “safeguardG a defendant’s rights while promoting the State’s interest in finality of judgments.” Id. That determination remains sound and ultimately augments, rather than limits, already existing and ample avenues by which defendants can challenge the procedural validity of past convictions.

¶ 10. The avenues of redress available to a claimant seeking to challenge a prior plea are myriad. First, Boskind did nothing to alter the settled rule that petitioners asserting a denial of their Sixth Amendment right to counsel may later raise the claim directly in the enhanced penalty proceeding. 174 Vt. at 187, 807 A.2d at 361. Petitioner here failed to do so. “Our rules require a party to raise and preserve all objections at trial . . . .” State v. Yoh, 2006 VT 49A, ¶ 36, 180 Vt. 317, 910 A.2d 853; see also Daniels v. United States, 532 U.S. 374, 382 (2001) (noting, in the context of federal PCR proceedings, that a “defendant may challenge a prior conviction as the product of a Gideon [Sixth Amendment] violation . . . , but generally only if he raised that claim at his federal sentencing proceeding”). Accordingly, petitioner’s claim in this regard was waived.

¶ 11. Second, neither Boskind nor our holding today undermines any of the several independent options otherwise available to petitioner and other defendants by which they can freely challenge the procedural validity of earlier guilty pleas. For example, defendants may assert a deficiency in a guilty plea pursuant to a timely motion to withdraw under V.R.Cr.P. 32(d). Such a motion may be made prior to or within 30 days of the entry of judgment, and “at any time” by a defendant not subject to incarceration. Id. In addition, defendants, including this petitioner, may file for post-conviction relief challenging the validity of their plea at any time while they remain “in custody under sentence,” including while on probation. 13 V.S.A. § 7131; State v. Yates, 169 Vt. 20, 22, 726 A.2d 483, 485 (1999). Petitioner here was convicted and sentenced on his first DUI offense in September 1992, and was not discharged from probation until nearly August 1994, providing a two-year window in which to obtain post-conviction relief based on the allegedly deficient plea. That petitioner sat on his rights for two years cannot be attributed to Boskind.

¶ 12. Nor is it the case — contrary to the dissent’s assertion — that petitioners who choose for whatever reason to ignore these more timely procedures and defer the filing of a PCR petition until after an enhanced sentencing proceeding will invariably find the claim mooted by completion of their sentence. Petitioner here, for example, filed his original pro se petition within three weeks of sentencing and counsel was appointed less than a month later. Nevertheless, his amended petition was not filed until five months later, with no apparent effort to alert the court to a need for expedited handling, notwithstanding the clear warning in Boskind that petitioner’s potential discharge from probation, which occurred seven weeks later, would moot the matter. Had petitioner filed a more timely amended petition or a motion to expedite, there is no evident reason why the petition could not have been heard and resolved before his discharge from probation. The so-called promise in Boskind upon which the dissent relies was no more than a commitment to revisit the issue if subsequent cases revealed the dissent’s prediction of a “right without a remedy” to be “a real — not theoretical — problem.” 174 Vt. at 192, 807 A.2d at 365. As the record here shows, petitioner’s circumstance cannot be separated from his own past inattention or inaction, and the dissent’s concern for a lack of remedy appears to remain abstract, except for the less than diligent.

¶ 13. The dissent further proffers several negative collateral consequences relating to defendant’s enhanced sentence that should allegedly keep the controversy alive. See In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 101 (1997) (even if otherwise moot, a case may retain legal life if “negative collateral consequences are likely to result” from the action under review). None of those adverse consequences, however, were curable, even had petitioner prevailed in his claim of Rule 11 noncompliance. There was, quite literally, no relief to be obtained from the trial court when it dismissed this case.

¶ 14. First, the dissent notes that petitioner received a mandatory enhanced license suspension based on the earlier conviction, which remained in effect even after he completed his sentence. Assuming, for the sake of argument, that petitioner’s plea of guilty to the first DUI was so proeedurally deficient as to invalidate enhancement of his sentence for the second DUI, it does not follow that the enhanced license suspension was similarly invalid. Nor does it follow at all, despite the dissent’s assumption, that petitioner would be entitled to immediate reinstatement of his license. While petitioner may seek to “vacate, set aside or correct the sentence” pursuant to the PCR statute, 13 V.S.A. § 7131, his license suspension was no sentence. It is settled that suspension is “a civil, not a criminal, sanction.” See State v. Strong, 158 Vt. 56, 60-62, 605 A.2d 510, 513-14 (1992) (characterizing license suspension as a remedial measure, the “nonpunitive purpose” of which was “clear and compelling”); see also In re LaMountain, 170 Vt. 642, 643, 752 A.2d 24, 25 (2000) (mem.) (PCR petitioner challenging guilty plea was “not ‘in custody,’ and the court lacked jurisdiction to hear his petition” where all that remained was civil suspension of petitioner’s license). Regardless of the merits of the PCR, petitioner would remain twice convicted of DUI, and the length of his license suspension was beyond the reach of post-conviction relief.

¶ 15. The dissent next asserts that, should petitioner’s claim be successful, he would be entitled to reconsideration of the $400 fine that was part of his criminal sentence for the second DUI. Several flaws inhere in this argument. First, petitioner did not raise the claim below and therefore did not preserve it for consideration on appeal. Yoh, 2006 VT 49A, ¶ 36. Second, while some courts have held that the involuntary payment of a fine may constitute an adverse collateral consequence sufficient to defeat a claim of mootness, the fine and payment here were the result of a plea agreement accepted by the court as voluntary, and petitioner makes no claim or showing to the contrary. Compare Commonwealth v. Viglione, 2004 PA Super 22, ¶ 20, 842 A.2d 454 (payment of fine was not voluntary and did not moot appeal where defendant was tried and found guilty and paid fine pending appeal to defer imprisonment), with State v. Arpi, 818 A.2d 48, 51 (Conn. App. Ct. 2003) (defendant’s payment of fine pursuant to plea agreement was voluntary and rendered appeal moot).

¶ 16. Moreover, our recognition of negative collateral consequences as an exception to mootness is limited to situations where proceeding to a decision in an otherwise dead case is “justified by a sufficient prospect that the decision will have an impact on the parties.” All Cycle, Inc. v. Chittenden Solid Waste Dist., 164 Vt. 428, 432, 670 A.2d 800, 803 (1995) (quotation omitted). For example, we have found “negative collateral consequences are likely” from the recognized stigma of an adjudication of mental illness and involuntary hospitalization, so as to keep an appeal alive despite termination of the temporary hospitalization. State v. J.S., 174 Vt. 619, 620, 817 A.2d 53, 55-56 (2002) (mem). Petitioner made no showing whatsoever that his $400 fine, already well below the $750 maximum fine for first-offense DUI under 23 V.S.A. § 1210(b), was “likely” to be reduced upon reconsideration. Petitioner offered no support for the notion that his fine, arrived at by his plea agreement, was enhanced at all. Certainly there was no particular enhancement under the DUI-recidivist statute providing for up to a $1500 fine for second-offense DUI. 23 V.S.A. § 1210(c). Any prospect that some of the fine would be refunded is slight to nil, and is insufficient to justify the continued application of judicial resources towards a remedy that is purely speculative.

¶ 17. Finally, the dissent contends that the controversy here remains live because the 1992 DUI conviction carries the possibility of unspecified future negative consequences. As earlier noted, however, the challenge here is to the enhanced sentence rather than the fact of petitioner’s long-final prior DUI conviction. Furthermore, apart from the situation where a social stigma attached to an involuntary commitment to a mental hospital, J.S., 174 Vt. at 620, 817 A.2d at 55-56, we have declined to hold that the mere possibility of negative collateral consequences is sufficient to avoid a finding of mootness. See In re Moriarty, 156 Vt. 160, 163-65, 588 A.2d 1063, 1064-65 (1991) (holding that appeal of officer’s administrative transfer was moot and rejecting claim that possibility of adverse affect on unspecified “employment prospects” was sufficient negative collateral consequence to avoid mootness).

¶ 18. Contrary to the dissent’s characterization, we renege on no promise to solve a problem, should one emerge, of defendants being denied relief from enhanced sentences on account of procedurally suspect prior convictions. Petitioner’s is one case brought to our attention in the six years since Boskind where the remedy sought is moot on account of the sentence ending before his PCR was decided — here, apparently, just as likely the result of a fortuitous discharge from an indeterminate probation as from the ordinary passage of time on this docket in the trial court. Petitioner could have requested an expedited hearing, but did not. His petition might have been more clearly or more timely pled, but was not. Petitioner’s complaint was one of probably dozens, if not hundreds, of otherwise nondescript PCR and other petitions filed yearly with the superior court. Their merits are important, but it should not be the obligation of the superior courts, as the dissent would impose, to unilaterally identify and analyze, without prompting or assistance from counsel familiar with the case, that one complaint is more worthy of attention than another. In any event, it is not at all clear that in this case, or in any other, petitioner has been effectively deprived of an opportunity to correct an erroneously enhanced sentence by operation of Boskind alone.

¶ 19. Accordingly, we find no exception to the mootness doctrine, and no basis to disturb the trial court judgment.

Affirmed.

1 See 23 V.S.A. § 1205(m) (establishing a longer suspension period for those convicted of a second violation of § 1201).

2 Lackawanna settled federal law, as presaged in Vaughn, that no challenge could be maintained against a prior conviction, once its sentence had expired, through an attack on a current sentence enhancement based on that prior conviction. “[W]e hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid.” Lackawanna, 532 U.S. at 403. Unlike our more generous ruling in Boskind, allowing petitioners to contest a new sentence enhanced due to an allegedly faulty, yet final, conviction, 174 Vt. at 188-89, 807 A.2d at 362-63, Lackawanna foreclosed even those attacks in federal court: “If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition ... on the ground that the prior conviction was unconstitutionally obtained.” 532 U.S. at 403-04.