Dobson, In re

• Decision Date: 23 July 1965
• Docket Number: No. 1906,1906
• Citation: 212 A.2d 620,125 Vt. 165
• Court: Vermont Supreme Court
• Parties: In re Brandon DOBSON.

Page 620

212 A.2d 620

125 Vt. 165

In re Brandon DOBSON.

No. 1906.

Supreme Court of Vermont.

July 23, 1965.

Edwin W. Free, Jr., Barre, for petitioner.

Chester Ketcham, Deputy Atty. Gen., Essex Junction, for State.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

The petitioner pled guilty to a felony in municipal court while represented by assigned counsel, conceded to be competent. He now seeks discharge from confinement by this petition for habeas corpus. In it he attacks, among other things, claimed defects in the proceedings prior to judgment and sentence.

The State insists that the plea of guilty was review of prior irregularies. Insofar as such defects are subject to waiver, we agree. It has been many times said of a writ of habeas corpus that it is not a substitute for an appeal. In re Rickert, 124 Vt. 232, 235, 203 A.2d 602. Where, by consent to a judgment, an appeal is waived, the writ certainly ought not to function to give a review after it has been voluntarily foregone, or give more rights under a plea of guilty than are available under the writ after a full-dress trial and appellate review. The writ is not intended to replace, in any way, regular proceedings in error, but lies to question the committing court's jurisdiction of the person and the subject matter, or its authority to render, under the circumstances of the case, the kind of judgment or order it did in fact make. In re Greenough, 116 Vt. 277, 282, 75 A.2d 569.

At the time of these proceedings, the petitioner was a minor from the State of New Hampshire. His parents also resided there, in a section called Cream Poke. During an interview by law enforcement officers from both Vermont and New Hampshire, he was persuaded to return to Vermont and the scene of the alleged crime. He drove back in his own car, accompanied by a New Hampshire officer. Then, again in the company of these enforcement officers, he was driven around to be identified by certain witnesses. After this took place he was arrested. While being transported to jail, he gave a confession to these officers during a road-side interrogation.

When he was arraigned on Saturday the court noted his minority and entered, on his behalf, not guilty pleas to felony charges involving the obtaining of money by the use of a forged instrument. The court also informed the petitioner that counsel would be assigned for him for his appearance in the regular court session on Monday, and then remanded him to jail for want of bail. His case was disposed of on a guilty plea that following Monday with his assigned counsel present and participating.

The State points to 33 V.S.A. § 678 as requiring the appointment of a guardian ad litem only in cases where the minor has no attorney. It reads:

'Whenever a minor is charged with a crime in any court and is not represented by counsel the court shall forthwith appoint a guardian ad litem to defend the interests of the minor. Whenever a minor is charged with a felony in any court, he shall be represented by counsel.'

This statute overruled In re Moses, 122 Vt. 36, 163 A.2d 868, which found competency to waive counsel in a knowledgable minor verging on adulthood. More than that, it indicates legislative determination that a minor have a responsible advisor upon being subjected to criminal proceedings, since he may be called upon to decide between waiving and asserting certain of his rights, including important constitutional protections. As we decided in In re Mears, 124 Vt. 131, 141, 198 A.2d 27, the statute goes to the point of placing a minor's right to counsel in felony cases beyond waiver, even by his guardian.

The State says that the appointment of counsel here satisfied the requirements of 33 V.S.A. § 678. We cannot agree, for two reasons. First, at the time of original arraignment, the petitioner had neither guardian ad litem nor counsel, as the terms of the statute clearly require. At that point there was not even the substantial compliance noted in In re Mears, supra, 124 Vt. 131, 136, 198 A.2d 27.

Second, the appointment of a guardian ad litem is a power inherent in courts in dealing with those before it who are under disability. See In re Mears, supra, 124 Vt. 131, 137, 198 A.2d 27. Legislative insistence that such appointments be made in certain cases will not be taken as restrictions upon the power of courts to require it in others. This is especially true when, as here, the judicial requirement implements and advances legislative policy.

Up until the enactment of 33 V.S.A. § 678 there existed an anomaly in the law that held a minor competent to conduct his own affairs in criminal matters where his wife and liberty may be a stake, yet classed him as disabled to act unguarded in his civil affairs. As early as 1848, in Starbird v. Moore, 21 Vt. 529, 533, in an action where an infant had an attorney defending him, this Court stated: 'But an infant being legally incapable of appearing for himself and defending his suit in court, or of appointing an attorney to appear and defend for him, any such appearance, or defence, amounts to nothing in contemplation of law.' It was later held, in Fall River Foundry Co. v. Doty, 42 Vt. 412, 416, that the only one competent to plead in the behalf of an infant defendant, is a guardian ad litem. These holdings were recently reaffirmed in Bielawski v. Burke, 121 Vt. 62, 66-68, 147 A.2d 674, 69 A.L.R.2d 1373.

The legislature has now made clear its express opposition to uncounselled waiver of rights by a minor in criminal actions. It is certainly appropriate to the critical nature of the rights involved in criminal proceedings to give there the same procedural protection tradictionally applied in civil matters, rather than limit our concern to the minimums required by the...