In re Collette

• Decision Date: 12 December 2008
• Docket Number: No. 07-040.,07-040.
• Citation: 969 A.2d 101,2008 VT 136
• Parties: In re Paul COLLETTE.
• Court: Vermont Supreme Court

969 A.2d 101

2008 VT 136

In re Paul COLLETTE.

No. 07-040.

Supreme Court of Vermont.

December 12, 2008.

Motion for Reargument Denied December 30, 2008.

Matthew F. Valerio, Defender General, Dawn Matthews, Prisoners' Rights Office, and Robert Gardner, Law Clerk (on the Brief), Montpelier, for Petitioner-Appellant.

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. BURGESS, J.

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 uncounselled 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 7, ¶ 10, 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 "[a]lthough 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.2d 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, 121 S.Ct. 1567, 149 L.Ed.2d 608 (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 "safeguard[ ] 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, 121 S.Ct. 1578, 149 L.Ed.2d 590 (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...