In re Benoit

• Decision Date: 10 July 2020
• Docket Number: No. 2019-072,2019-072
• Parties: In re Joseph S. Benoit (State of Vermont, Appellant)
• Court: Vermont Supreme Court

2020 VT 58

In re Joseph S. Benoit (State of Vermont, Appellant)

No. 2019-072

Supreme Court of Vermont

December Term, 2019

July 10, 2020

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

On Appeal from Superior Court, Chittenden Unit, Civil Division

Helen M. Toor, J.

Paul Volk of Blodgett, Watts & Volk, P.C., Burlington, for Petitioner-Appellee.

Heather J. Gray, Department of State's Attorneys and Sheriffs, Montpelier, for Respondent-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

¶ 1. ROBINSON, J. This interlocutory appeal requires us to clarify the available legal means for collaterally challenging a predicate conviction to an enhanced charge in light of two distinct lines of case law. Petitioner pled guilty to driving under the influence, third offense (DUI-3), and subsequently challenged his underlying predicate convictions in a petition for post-conviction relief (PCR). The State sought summary judgment on the basis that by pleading guilty to DUI-3, petitioner waived his PCR challenges to any of the predicate convictions. The trial court denied summary judgment, concluding that our case law requires petitioner to raise his challenges in a post-sentencing PCR proceeding. We granted interlocutory review to resolve the question of whether and how defendants who plead guilty may raise collateral challenges to predicate convictions. We conclude that they may do so by preserving the challenge on the record before the trial court. We affirm the denial of summary judgment on different grounds from the trial court, and remand for the court to consider whether petitioner's waiver was knowing and voluntary in this case.

¶ 2. The following facts are undisputed unless otherwise noted. In 2015, the State charged petitioner with DUI-4, which requires three prior DUI convictions. See 23 V.S.A. §§ 1201, 1210(e)(1). The information listed four prior convictions between 1999 and 2009.

¶ 3. In 2016, while the DUI-4 charge was pending, petitioner's lawyer sent a letter to the State's Attorney describing potential "post conviction relief issues" regarding each of the four listed predicate convictions. Counsel closed, "it would be very helpful if we could speak prior to or at next week's calendar call as to whether we will be able to resolve the case or whether we should be entering into a discovery stipulation."

¶ 4. About ten weeks later, petitioner pled guilty to DUI-3 pursuant to a plea agreement. See id. § 1210(d). At the plea colloquy, he indicated that he understood the terms of the plea bargain and agreed to the facts as recounted by the prosecutor, including two prior DUI convictions in 2002 and 2009. Petitioner did not raise his challenges to the prior convictions at the change-of-plea hearing. The court accepted petitioner's guilty plea.

¶ 5. In 2017, petitioner filed two PCR petitions, challenging his convictions from 2002 and 2009.¹ His claims mirror the issues identified in the 2016 letter: he alleged that his 2002conviction was compromised by ineffective assistance of counsel and that his 2009 guilty plea colloquy did not comply with Rule 11 of the Vermont Rules of Criminal Procedure. In raising these claims through a PCR petition, petitioner relied on State v. Boskind, 174 Vt. 184, 185, 807 A.2d 358, 360 (2002), and In re Manning, 2016 VT 53, ¶ 20, 202 Vt. 111, 147 A.3d 645, in which we held that a defendant may challenge a predicate offense only by bringing a PCR proceeding while in custody for the enhanced sentence.

¶ 6. The State, in a motion for summary judgment, argued that petitioner waived his right to challenge the prior convictions by entering a knowing and voluntary guilty plea to DUI-3. It relied on In re Torres, 2004 VT 66, ¶ 9, 177 Vt. 507, 861 A.2d 1055 (mem.), in which we held that a petitioner who pled guilty to second-degree aggravated domestic assault had waived his claim that he did not meet the elements of the aggravated offense because he had no prior conviction for domestic assault. In response to petitioner's argument that his counsel's 2016 letter had provided notice to the State of potential PCR claims, the State countered that the letter served only to advance plea negotiations.

¶ 7. The PCR court denied the State's motion for summary judgment, but noted that "Torres appears to be in conflict with Boskind and Manning." It reasoned that "[o]n its face, Torres seems to bar [petitioner's] claim," yet under Boskind, "challenges to predicate convictions based on Rule 11 deficiencies properly belong in the context of PCR proceedings, rather than in the criminal proceeding." The court concluded that Boskind controlled, and that petitioner could pursue his PCR petitions notwithstanding his guilty plea to DUI-3, in part because "it would not make sense to require defendants who admit guilt on the current charge to go to trial just to preserve the ability to challenge their prior convictions." However, pursuant to Vermont Rule of AppellateProcedure 5(b)(1), it granted the State's motion for interlocutory appeal, concluding that this Court's applicable decisions "are not in harmony."

¶ 8. The controlling question of law identified by the PCR court was: "Does a defendant who pleads guilty to a DUI-3 waive the right to raise a PCR challenge to the predicate DUIs for purposes of striking the enhanced sentence based upon those predicate convictions?" Petitioner argues that under Boskind, the PCR challenge cannot be waived. The State argues that it is waived. We review this question of law without deference to the trial court's analysis. State v. Phillips, 2018 VT 85, ¶ 14, 208 Vt. 145, 195 A.3d 1099.

¶ 9. In resolving this question, we must harmonize two lines of case law: our case law related to waiver, and our case law related to collateral challenges to predicate offenses. We conclude that a defendant can plead guilty but preserve a PCR challenge to a predicate offense by providing clear notice on the record when entering a guilty plea. In this case, we remand for a determination of whether petitioner's plea was knowing and voluntary.

I. Two Lines of Cases

¶ 10. In this case, two lines of authority intersect. In the first—the Boskind line—we have held that defendants must challenge predicate convictions through PCR petitions, rather than at sentencing for the enhanced charge. 174 Vt at 185, 807 A.2d at 360. In the second—the Torres line—we held that defendants who plead guilty to a charge predicated on a prior conviction waive any nonjurisdictional challenges, including challenges to the validity of the prior conviction. 2004 VT 66, ¶ 9. As described below, these lines developed in parallel, until they recently collided in State v. Gay, 2019 VT 67, ¶ 9, ___ Vt. ___, 220 A.3d 769, where we held that Torres controls in cases where defendants plead guilty to an enhanced charge. Left unresolved in Gay was whethera defendant who is prepared to plead guilty has any means to challenge a prior, enhancing conviction without contesting the merits of the enhanced charge.

¶ 11. In Boskind, we held that a challenge to a prior conviction used to enhance a sentence "must take place in superior court pursuant to Vermont's PCR statute." 174 Vt. at 185, 807 A.2d at 360. The defendant² in a DUI-3 case moved to dismiss the sentencing enhancements based on Rule 11 challenges to the predicate convictions. The trial court denied the defendant's motion, and we reviewed his argument on appeal of his conditional guilty plea. We first defined the issue as one of policy, rather than constitutional imperative. Id. at 188, 807 A.2d at 362. We then determined that a PCR proceeding, rather than the sentencing proceeding on the enhanced charge, was the proper venue for challenges to predicate convictions. Id. at 192, 807 A.2d at 365. We based this conclusion on several policy considerations. In particular, we sought to avoid "delay and protraction" in the sentencing process, concluded that the State has a better opportunity to prepare a defense to challenges to predicate convictions in the context of a PCR proceeding, and noted that the PCR statute is designed to provide "a clear record and fully articulated arguments from all material witnesses." Id. at 191, 802 A.2d at 364-65 (quotation omitted).³

¶ 12. We reaffirmed this holding in at least two subsequent cases. See Manning, 2016 VT 53, ¶ 20; In re Collette, 2008 VT 136, ¶ 5, 185 Vt. 210, 969 A.2d 101. In both cases we also held that that the remedy in the PCR proceeding is not an order vacating the improper underlyingconviction, but, rather, is an order vacating the enhanced sentence. See Manning, 2016 VT 53, ¶ 20; Collette, 2008 VT 136, ¶ 8.

¶ 13. Two years after Boskind, and before Collette and Manning, we addressed the related question of whether by pleading guilty, a petitioner waived his right to challenge a prior conviction that served as the basis for an aggravated charge. See Torres, 2004 VT 66.⁴ The petitioner in Torres was charged with, and pled guilty to, second-degree aggravated domestic assault, which at the time was defined as a "second or subsequent offense of domestic assault." Id. ¶ 2 (quotation omitted). However, the petitioner had never been convicted of domestic assault—the State's information had incorrectly identified as a prior conviction a charge for which the petitioner had been arraigned, but which was later dismissed. The petitioner argued that his conviction was unlawful under the aggravated-domestic-assault statute because he had no prior domestic-assault conviction. He also argued that he had received ineffective assistance...