State v. Hunt

485 A.2d 109, 145 Vt. 34

• Court: Supreme Court of Vermont
• Decided: November 2, 1984
• Docket: 83-451
• Status: Published

Opinions

Underwood, J.

We are called upon to decide a question of first impression in Vermont: whether two lay assistant judges of the superior court,¹ constituting a majority of the superior court, have the power to overrule the lawyer trained, presiding judge by rejecting a proffered plea bargain agreement.

The defendant is charged with first degree murder; he has pled not guilty and has raised the defense of insanity or diminished mental capacity. Prior to trial the state’s attorney, the defendant’s attorney and the defendant each signed an instrument entitled Plea and Sentencing Agreement (Agreement), which they submitted to the Chittenden Superior Court for its acceptance. V.R.Cr.P. 11 (e). Pursuant to the Agreement, should the court agree to impose a minimum sentence of no-,more than ten years, and a maximum sentence of its own choosing, the defendant would agree to enter a plea of guilty to an amended charge of second degree murder.

The presiding judge would have accepted the Agreement for three reasons: first, it might be difficult for the State to prove premeditation;' second, it might be difficult for the State to prove that the defendant was sane at the time of the off ensé; and finally, the State may have seized evidence. against • the defendant in violation of his constitutional guarantees. Although the presiding judge had previously denied the defendant’s motion to suppress the evidence, he felt the final outcome on his ruling, if overturned on appeal, could deprive the State of the evidence necessary to prevail at trial.

The two assistant judges, comprising a majority of the court, rejected the Agreement, apparently because they could not condone the minimum sentence provision. Consequently the presiding judge noted upon the record, “The judgment of the Court is that the plea agreement as proposed is rejected.” The presiding judge did not contest the assistant judges’ authority to reject the Agreement.

Defendant moved for permission to appeal the ruling pursuant to V.R.A.P. 5(b). The State joined with the defendant in the motion. The controlling questions of law for review as set forth in the motion were substantially as follows:

1. Did the lay judges act beyond their jurisdiction,² as defined by State v. Dunkerley [134 Vt. 523, 365 A.2d 131 (1976)] and V.R.Cr.P. 54, in rejecting a plea agreement involving legal issues ?

2. Are the defendant’s rights to counsel and due process denied by giving lay judges jurisdiction to overrule a lawyer judge and reject a plea agreement involving legal issues ?

3. Does rejection of the plea agreement by lay j.udges violate the defendant’s right to equal protection ?

The motion for permission to take an interlocutory appeal was granted. Thereafter both the State and the defendant filed briefs arguing that only the presiding judge could accept or reject the Agreement. Amicus curiae briefs also supporting the exclusive power of the presiding judge to make the ruling were filed by Vermont Chapter of the American Civil Liberties Union and by the Vermont Bar Association. An amicus curiae brief supporting the authority of the two assistant judges to reject the Agreement was filed by the Vermont Association of Assistant Judges.

I.

On appeal the defendant and the State both argue that the assistant judges, who are lay judges,³ exceeded their authority when they overruled the lawyer trained presiding judge by rejecting the Agreement because it involved legal issues. To support their position they rely heavily upon State v. Dunker-ley, 134 Vt. 523, 365 A.2d 131 (1976), and V.R.Cr.P. 54(c) (1) (ii).

Dunkerley, Avhich involved a prosecution for first degree murder, also came before this Court on an interlocutory appeal. Although the defendant in Dunkerley challenged the constitutionality of permitting lay assistant judges to participate in a murder trial at all, we narrowed the issue on appeal as follows:

Is it a violation of due process to conduct a trial before a court consisting of a majority of lay judges authorized to adjudicate matters of law as well as fact?

Id. at 524, 365 A.2d at 131. The Court held that:

the possibility of a lay majority ruling on questions of law in a trial is a suificient deviation of due process to require proscription. . . . [Tjherefore, the Assistant Judges must be disqualified from participation in the legal issues relating to trial.

Id. at 526, 365 A.2d at 132 (emphasis added) .4

Dunkerley in no way limited the authority of assistant judges to participate in deciding questions of fact in the: sentencing process or in exercising judicial discretion in criminal cases. Shortly after the decision was handed down, thé’'Supreme Court amended V.R.Cr.P. 54(c) (1) (ii) ais follows: ’ :

In superior, court cases all questions of fact appropriate for decision by the court shall be determined by a majority of the judges, who shall also determine the facts involved in mixed questions of law and fact. Application of the law to the facts so found shall be determined by the Presiding Judge in each instance.

V.R.Cr.P. 54(c) (1) (ii). See Reporter’s Notes (1976 Amendment). Thus, it is readily apparent that assistant judges have authority to participate in the trial of a criminal case in superior court, subject to specific limitations imposed on their authority by Dunkerley and by V.R.Cr.P. 54.

The litigants and the amicus curiae briefs seem to'agree on these principles: (1) the assistant judges are disqualified from deciding legal issues in criminal cases; (2) the assistant judges may decide factual issues in criminal cases; and (3) absent a plea bargain agreement, the assistant judges may participate in the sentencing procedures. The area of disagreement-involves acceptance or rejection of plea bargain agreements, which, some seem to infer, raise issues of law or at least mixed questions of law and fact. Only the briefs of the Assistant Judges’ Association and the Vermont Bar Association point out that acceptance or rejection of the plea bargain agreement may only call for an exercise of discretion.

Although disputes of fact and of law may very well have been the impetus for- plea bargaining between the parties, the Agreement itself, which was the culmination of those negotiations, contained no legal issues for the trial court to resolve in conjunction with its acceptance or rejection. The presiding judge had already ruled as a matter of law after suppression hearings that the purported murder weapon and the alleged confession of the-defendant should be admitted into evidence at the time of trial.

Nevertheless, the State and the defendant contend that acceptance or rejection of the Agreement calls upon the ability of the lay assistant judges to recognize and understand the impact un this case of relevant case law, statutes, and federal and state constitutional standards. In addition, they argue, the lay judges must be able to evaluate the State’s ability to prove the defendant’s guilt beyond a reasonable doubt as well as to evaluate the merits of defendant’s plea of not guilty and his defense of insanity or diminished mental capacity. Because of the complexity of these evidentiary and constitutional issues, both the State and the defendant insist that only a lawyer trained judge would be able to weigh intelligently the propriety and fairness of the Agreement.

The amicus curiae brief filed by the Vermont Association of Assistant Judges contends that the posture in which the Agreement was presented to the court did not call for a ruling of law, but rather for an exercise of discretion. It is further claimed in the brief that the reason the two assistant judges rejected the Agreement was because they focused exclusively on its dispositional or correctional phase — that is, whether a minimum sentence of ten years was appropriate in exchange for a plea of guilty to a reduced charge of second degree murder. It appears that the question foremost in their minds was whether upon his conviction for second degree murder the defendant should be sentenced to a minimum term of incarceration for ten years, or whether this sentence was too lenient. The same brief presupposes that the assistant judges in rejecting the proffered Agreement were aware that the litigants in drafting and executing the Agreement had taken into account the defendant’s defense of insanity or diminished mental capacity, as well as the questionable admissibility of the murder weapon and defendant’s confession, and therefore the only remaining issue for them to consider was the sentencing provision of the Agreement. We are mindful that one of the functions of judges, in accepting or rejecting a plea bargain agreement, “is to insure the appropriateness of the correctional disposition reached by the parties and to guard against any tendency of the prosecutor to overcharge or to be excessively lenient . . . .” The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice 136 (1967). Neither the litigants nor the amicus briefs have cited any instance where the assistant judges have been excluded from participating in sentencing procedures which required the exercise of judicial discretion.

The trial court is not bound to accept a plea agreement. State v. Reuschel, 131 Vt. 554, 561-62, 312 A.2d 739, 743 (1973). See V.R.Cr.P. 11(e)(4); 13 V.S.A. § 6565(b). A court may reject a plea of guilty in the exercise of its sound judicial discretion. Santobello v. New York, 404 U.S. 257, 262 (1971). Santobello involved a guilty plea based on a plea bargain agreement. Id. at 261-62. With these principles in mind, we look to see whether Dunkerley or Rule 54 prohibits the participation of assistant judges in rejecting the Agreement.

As previously noted, Dunkerley only limited assistant judges from ruling on legal issues raised during a criminal trial; it did not address issues calling for resolution by the exercise of judicial discretion. Therefore, Dunkerley is not controlling and imposes no limitations on the assistant judges’ exercise of judicial discretion in passing on the acceptance or rejection of the Agreement proffered to the full court in this case. V.R.Cr.P. 54(c) (1) (ii) tracks Dunkerley, but goes one step further and permits the assistant judges to participate with the presiding judge in determining the facts involved “in mixed questions of law and fact, [however] [application of the law to the facts so found shall be determined by the Presiding Judge in each instance.” (Emphasis added.) Thus, in order for Rule 54(c) (1) (ii) to govern a particular situation, there must be facts to find and law to apply. This is not the case in accepting or rejecting the Agreement here. Neither the State nor the defendant has suggested that the court should have made findings of fact when the Agreement was offered and rejected. Similarly they have nowhere suggested that any conclusions of law then be derived from facts found. Rule 54 (c) (1) (ii) applies to situations such as a motion to suppress evidence where first facts must be found and then law applied. Accepting or rejecting the Agreement in the case at hand involves nothing of this sort and, therefore, is not subject to the dictates of V.R.Cr.P. 54(c) (1) (ii).

We note that the Agreement considered below involved a reduction in the charge from first degree to second degree murder and a sentencing concession providing for a minimum term of ten years imprisonment, in exchange for a plea of guilty. The record discloses the following statement by the presiding judge:

[A] majority of this Court has voted to reject the plea agreement, primarily in that part of the agreement that deals with the minimum sentence. And, therefore, the judgment of the Court is that the plea agreement as proposed is rejected.

Thus, the record indicates that the assistant judges focused on the minimum sentence, although of course their rejection went to the entire Agreement. In this context, their rejection of the Agreement was an exercise of judicial discretion. Neither the State nor the defendant argues that Rule 54(c) (1) (ii) or Dunkerley precludes the assistant judges from exercising judicial discretion.

Judicial discretion was well defined by a federal court some years ago. “ ‘Discretion’ of course means ‘sound discretion,’ not discretion exercised arbitrarily, but with due regard for that which is right and equitable under the circumstances, and directed by reason and conscience to a just result.” United States v. D’Argento, 227 F. Supp. 596, 600 (N.D. Ill. 1964). Although D’Argento involved an exercise of discretion on a motion to set aside or remit a forfeiture of bail bond, we feel that its definition is applicable to this case.

Our Court has previously identified the discretionary nature of accepting or rejecting pleas.

While respondent. . . has no right to insist on the acceptance of a plea of guilty, the court, nevertheless, in the exercise of its discretion, has the power to accept such a plea, if it deems it wise to do so. A tendered or offered plea should not be refused without good reason but, if refused, must be shown that the court abused its discretion.

State v. Reuschel, supra, 131 Vt. at 561-62, 312 A.2d at 743 (emphasis added) (citation omitted). We see no. difference between the discretionary nature of accepting or rejecting a plea based on a plea bargain agreement and the discretionary nature of accepting or rejecting a plea based on other considerations. This is consistent with F.R.Cr.P. 11(e), after which Vermont’s rule is patterned: “The plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement. Such a decision is left to the discretion of the individual trial judge.” F.R.Cr.P. 11 (e) 1975 advisory committee note (reprinted in 8 J. Moore, Moore’s Federal Practice ¶ 11.01 [4], at 11-16 (2d ed. 1983)); accord 8 J. Moore, Moore’s Federal Practice ¶ 11.02 [1], at 11-15 (2d ed. 1983). For a recent discussion of the discretionary nature of accepting or rejecting plea bargain agreements, see United States v. Miller, 722 F.2d 562, 563-66 (9th Cir. 1983) (remanded for failure to exercise discretion).

There has been no allegation or showing of abuse of discretion by the assistant judges below. When the presiding judge in the case before us spoke of the rejection of the Agreement, he spoke for a majority of the court. A ruling such as this should reflect the discretion of the majority of the court unless specifically prohibited by the rule. Had the assistant judges decided a question of law, we would have an issue to decide under the rule. But the record reveals no rulings by the assistant judges on questions of law. Just because the presiding judge had reservations about the validity of some of his previous legal rulings at suppression hearings, we cannot conclude that V.R.Cr.P. 54(c) (1) (ii) barred the exercise of judicial discretion by the full court.

The American Bar Association Minimum Standards on Pleas of Guilty contain a list of considerations appropriate for application by the trial court in determining whether it should accept or reject a plea bargain agreement:

(i) that the defendant by his plea has aided in ensuring the prompt and certain application of correctional measures to him;

(ii) that the defendant has acknowledged his guilt and shown a willingness to assume responsibility for his conduct;

(iii) that the concessions [as to the charge or sentence] . will make possible álternative correctional measures Which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;

(iv) that, the defendant, has made public trial unnecessary. when there are good reasons for not having the case dealt with in a public trial

(v) that, the defendant has given or offered cooperation when such cooperation bias resulted or may result in . the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;

. (vi) that the defendant by his plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.

ABA Minimum Standards § 1.8 (a). It is interesting to note that there is not a single “legal issue” in the list suggested.for the trial court to consider.

After returning to chambers to consider its decision, if the plea bargain agreement is to be rejected by the court, each of the judges participating in the proceeding should be prepared to declare later in open court, on the record, his or her reasons why, in the exercise of sound judicial discretion, he or she rejected the plea bargain agreement. United States v. Miller, supra, 722 F.2d at 566 (citing United States v. Ammidown, 497 F.2d 615, 623 (D.C. Cir. 1973)) ; City of Akron v. Ragsdale, 61 Ohio App. 2d 107, 109, 399 N.E.2d 119, 121 (1978).

In exercising judicial discretion in accepting or rejecting a plea bargain agreement, the presiding lawyer trained judge and the lay assistant judges each registers his or her independent judgment, based upon heritage, environment, education and a myriad of other influences including the Agreement itself and the record before the court. There is nothing in the legal training of the presiding judge which makes him or her more qualified than a lay judge to exercise discretion in considering a plea bargain agreement.

Based on the record we have before us and on the particular facts of this case, we cannot agree with the parties that .either Dunkerley, supra, or V.R.Cr.P. 54(c) (1) (ii) was applicable and prohibited the assistant judges from exercising their discretion in rejecting the Agreement.

II.

The next question is whether the rejection of the Agreement by lay assistant judges denied the defendant his constitutional rights to the effective assistance of counsel and to due process of law. Defendant is not actually making separate challenges under the two constitutional guarantees; the due process and ineffective assistance of counsel arguments are intertwined. Defendant does not argue that his counsel was ineffective or incompetent; he argues that it is impossible for any counsel to represent him effectively because the presence of the lay assistant judges violates due process. Thus, the crux of defendant’s argument here revolves around the guarantee of due process.

Defendant insists he was deprived of these constitutional guarantees, citing Dunkerley, supra, in which we noted “the Assistant Judges must be disqualified from participation in the legal issues relating to trial.” 134 Vt. at 526, 365 A.2d at 132. This was based on our recognition of the constitutional requirement that a defendant has a right to representation by a legally qualified attorney, and “[t]o require a lesser standard of judicial authority would be to defeat that constitutional purpose.” Id. Defendant also cited the similar view expressed by the Indiana Supreme Court. “We cannot in good conscience concede . . . that less legal ability and knowledge is required of a judge than of the lawyers practicing before the judge.” In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350, 352, 332 N.E.2d 97, 98 (1975).

Defendant does not seek to eliminate completely the judicial powers of the assistant judges, but only to impose a limitation on those powers in situations in which the lay assistant judges are confronted with a plea bargain agreement which is fraught with complex constitutional and evidentiary issues. Defendant argues that the lay assistant judges effectively ruled that the resolution of these legal issues, reached by the defendant’s attorney and the state’s attorney and acceptable to the presiding lawyer trained judge, was unacceptable to them. To permit two lay judges to overrule the lawyer trained judge and reject such an Agreement, defendant contends, undermines his right to effective assistance of counsel.

We note that defendant was represented by counsel at all stages of the proceedings below, that there was a lawyer trained judge on the bench, that there was a verbatim record of the proceedings, and that defendant could petition the superior court for permission to appeal the interlocutory ruling of the assistant judges, and, if denied, could petition the Supreme Court directly for permission to appeal. The Supreme Court consists of five lawyer trained justices and is empowered to hear such appeals.

The defendant has presented us with authority indicating a trend away from the use of lay judges based on due process considerations. In Gordon v. Justice Court, 12 Cal. 3d 323, 525 P.2d 72, 115 Cal. Rptr. 632 (1974), cert. denied, 420 U.S. 938 (1975), the California Supreme Court abolished that state’s system of lay judges as violative of the Due Process Clause of the Fourteenth Amendment. The California court observed that “ [w'jhatever the justification for permitting laymen to preside over criminal trials in the 1800’s, it is a well-recognized principle that even long-standing practices are subject to constitutional scrutiny and must meet the advancing standards of due process.” Id. at 328, 525 P.2d at 75, 115 Cal. Rptr. at 635. In California, the lay judges presided alone and ruled on all issues at trial. The court in Gordon noted that “ [w] e do not suggest that a fair criminal trial is impossible in a court presided over by a non-attorney judge, but only that the likelihood of such a trial would be substantially diminished.” Id. at 329, 525 P.2d at 76, 115 Cal. Rptr. at 636. Assuming arguendo that the above statement by the Gordon court may be true, the defendant has not demonstrated any abuse of discretion on the part of the assistant judges in ruling as they did. The presence of the presiding lawyer trained judge in any event distinguishes the instant case from Gordon. Dunkerley and V.R.Cr.P. 54(c) (1) (ii) carefully limit the authority of assistant judges in Vermont. Thus, the situation in Vermont is distinguishable from that in California.

The United States Supreme Court decision in North v. Russell, 427 U.S. 328 (1976), while not directly on point, raised issues similar to this appeal. There the defendant appeared before a single lay judge on a charge of first offense of driving under the influence of intoxicating liquor. Under Kentucky lav? the penalty on conviction of a first offense was a fine of $100 to $500; for a subsequent offense the fine was the same plus imprisonment for not more than six months. Defendant, who was not represented by an attorney, appeared and pled not guilty and asked for a jury trial to which he was entitled under Kentucky law. The lay judge denied defendant’s request for a jury trial, found defendant guilty, sentenced him to thirty days in jail, fined him $150 and revoked his driver’s license.

Kentucky law further provided the defendant with an absolute right of appeal with a trial de novo before a lawyer judge and a jury, and to bail while awaiting the trial de novo. Proceedings before the lay judge, however, were not recorded; thus there was no record for appeal. North, supra, 427 U.S. at 336 n.5 (citing Colten v. Kentucky, 407 U.S. 104, 114 (1972)). Although the lay judge had patently exceeded his judicial authority, defendant did not avail himself of a de novo trial on appeal but instead brought a writ of habeas corpus to contest his incarceration by a lay judge.

Chief Justice Burger, writing the opinion of the Court, stated:

We conclude that the Kentucky two-tier trial court system with lay judicial officers in the first tier in smaller cities and an appeal of right with a de novo trial before a traditionally law-trained judge in the second does not violate either the due process or equal protection guarantees of the Constitution of the United States ....

427 U.S. at 339.

Defendant attempts to distinguish North from the situation at hand. He points to the absolute right of appeal from the lay judge’s decision, with a trial de novo by jury in North, as opposed to only an appeal to the Supreme Court of Vermont from the ruling made by the lay assistant judges in rejecting a plea bargain agreement. Although Vermont law does not provide the defendant with a de novo appeal from the superior court as in North, it does provide the means for interlocutory appeal, V.R.A.P. 5, or an absolute right to an appeal from a final judgment of conviction to the Supreme Court of Vermont where five lawyer trained justices sit. 13 V.S.A. § 7401; V.R.A.P. 4; State v. Buck, 139 Vt. 310, 314-15, 428 A.2d 1090, 1093 (1981). As previously mentioned, the Kentucky system reviewed in North made no record of the proceedings before the lay judge; thus there could be no appellate review of the proceedings. The superior courts in Vermont do make verbatim records of their proceedings, enabling this Court to review claims of error on appeal. Under these circumstances, the fact that North involved a de novo trial is not a sufficient ground to distinguish the case. Furthermore, in a case involving a sentence of life imprisonment or death, the appeal to this Court is automatic. V.R.A.P. 3 (b). We also note that Vermont has provided for review of a defendant’s sentence for a period of ninety days on motion of the defendant or of the trial court itself. 13 V.S.A. § 7042. These may be more cumbersome and costly procedures, but we hold that the presence of the lawyer trained presiding judge below, the limits on the authority of assistant judges in Dunkerley, supra, and V.R.Cr.P. 54, the availability of appeal, and the provision for sentence review bring this case within the due process parameters announced in North. Defendant’s rights to effective assistance of counsel and due process of law were not violated.

III.

Finally, defendant argues that because Vermont law allows criminal cases to be brought in either the district or superior courts, he is deprived of equal protection under the law. Defendant observes that in district court only a lawyer trained judge sits, whereas in superior court a lawyer trained judge sits with two lay judges. Since under current Vermont law, 4 V.S.A. §§ 114, 439, the state’s attorney has discretion to decide whether to bring a criminal case in one of two courts, defendant argues that irrational classes of courts are established in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution.

The record in the instant appeal, however, indicates that at the time the State’s information was filed on April 20,1982, charging the defendant with murder in the first degree, the state’s attorney could bring a murder case only in superior court. Defendant acknowledges this fact in his brief. At that time 4 V.S.A. § 439 provided: “The district court shall have jurisdiction to try, render judgment and pass sentence in prosecutions for felon [ies] loherein the maximum penalty is imprisonment for less than life.” (Emphasis added.) Defendant now attempts to rely on the amended 4 V.S.A. § 439 (effective July 1, 1982), which omits the emphasized language, thus enabling a state’s attorney to elect between the district and superior courts when prosecuting a murder.

Since the state’s attorney had no discretion as to where to bring the murder charge in this case, defendant was unaffected by the amendment to 4 V.S.A. § 439. This is analogous to the requirement of standing in a civil case. The principle was well stated in Sandoval v. Ryan, 535 P.2d 244, 246 (Colo. Ct. App. 1975): “The essence of standing is that no person is entitled to assail the constitutionality of an ordinance or statute except as he himself is adversely affected by it.” Since the defendant was not adversely affected by any action of the prosecutor, he has no standing to attack the constitutionality of 4 V.S.A. §§ 114, 439 (as amended).

The three certified questions are answered in the negative.

1 The office of Assistant Judges, or side judges as they are sometimes called, is included in the Vermont Constitution. The Legislature first delineated the judicial duties of the assistant judges in 1781. 1781 Vt. Acts (an Act Directing the Courts in Their Office and Duty, April 14, 1781).

2 Although the parties use the term “jurisdiction,” we do not address the issue as a jurisdictional question. We consider the issue as a challenge to the authority of the assistant judges.

3 We take judicial notice that at all times material each of the twenty-eight assistant judges in the State of Vermont was a lay judge. V.R.E. 201.

4 'A concurring opinion of one of- the justices would have extended the holding to legal issues in civil cases as well. . .