In re Gay

• Decision Date: 20 September 2019
• Docket Number: No. 18-323,18-323
• Citation: 220 A.3d 769
• Court: Vermont Supreme Court
• Parties: IN RE Jeffrey R. GAY II

220 A.3d 769

IN RE Jeffrey R. GAY II

No. 18-323

Supreme Court of Vermont.

May Term, 2019

September 20, 2019

Reargument Denied October 17, 2019

Matthew Valerio, Defender General, and Jill P. Martin, Seth Lipschutz, and Emily Trudeau, Prisoners' Rights Office, Montpelier, for Petitioner-Appellant.

David Tartter, Deputy State's Attorney, Montpelier, for Respondent-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

CARROLL, J.

¶ 1. Defendant appeals orders denying his motion for summary judgment and granting summary judgment in favor of the State on his petition for post-conviction relief (PCR). He argues that the superior court erred when it concluded that, by pleading guilty to a charge carrying a habitual-offender enhancement, he waived the right to subsequently contest the sufficiency of the pleas in the underlying convictions that made him subject to the enhancement. We affirm.

¶ 2. In 2014, defendant pled no contest to obstruction of justice. As part of his plea colloquy with the sentencing court, defendant acknowledged that by changing his plea from not guilty to no contest, he was giving up his right to appeal, which he would have had if he had maintained his not-guilty plea, gone to trial, and been convicted. The court imposed a sentence that was enhanced under Vermont's habitual-offender statute, 13 V.S.A. § 11.¹ Between 2001 and 2006, defendant was convicted of four felonies that enhanced the sentence on the obstruction-of-justice conviction. He pled guilty to two of those convictions—false pretenses and grand larceny—at one proceeding in 2004.

¶ 3. In 2018, defendant filed a PCR petition, seeking to vacate the sentence imposed on the 2014 obstruction-of-justice conviction. He argued that he was entitled to a resentencing because his pleas to the charges of false pretenses and grand larceny in 2004 were not made knowingly and voluntarily. Specifically, he alleged that the pleas were deficient because the court failed to elicit from him an admission to the factual basis supporting each of the charges. Defendant argued that without these two prior convictions, his sentence on the obstruction-of-justice conviction should not have been enhanced pursuant to 13 V.S.A. § 11.

¶ 4. Defendant filed a motion for summary judgment. His motion relied, in part, on the transcript of the colloquy he and the court engaged in during the 2004 change-of-plea hearing on the false-pretenses and grand-larceny charges. He argued that the colloquy did not satisfy the dictates of In re Stocks, 2014 VT 27, ¶¶ 17, 20, 196 Vt. 160, 94 A.3d 1143 (vacating convictions and determining that plea was not voluntary based on court's failure to elicit admission to facts forming basis for charges, as required by Vermont Rule of Criminal Procedure 11(f) ). Defendant urged the court to vacate his 2014 sentence and to impose a sentence no greater than five years to serve.

¶ 5. The State opposed defendant's motion for summary judgment and cross-moved for summary judgment. The State argued that it was immaterial whether the colloquy resulting in the 2004 convictions satisfied Rule 11(f) because defendant, by entering a knowing and voluntary plea to obstruction of justice, waived any challenge to the sufficiency of the plea colloquy on the underlying convictions used to enhance his sentence. Because he entered a knowing and voluntary guilty plea to the obstruction-of-justice charge, and the agreed-upon sentence was imposed, defendant was barred from collaterally attacking the validity of the 2004 convictions and had waived all nonjurisdictional defects in that proceeding.

¶ 6. The court denied defendant's motion for summary judgment and granted the State's cross-motion for summary judgment. It reviewed the transcript of the 2004 proceeding and ultimately concluded that the change-of-plea colloquy on the false-pretenses and grand-larceny charges suffered from the same deficiencies this Court identified in Stocks.² Defendant did not argue that his plea to the obstruction-of-justice charge was not made knowingly and voluntarily. The court then reviewed the transcript of that proceeding and found that it complied with Rule 11(f) and concluded that defendant made his plea knowingly and voluntarily. Finally, the court relied, in part, on In re Torres, 2004 VT 66, ¶ 9, 177 Vt. 507, 861 A.2d 1055 (mem.), to hold that defendant had waived all nonjurisdictional defects in the 2004 proceedings by entering a knowing and voluntary plea to a charge of obstruction of justice and was barred from collaterally attacking the convictions used to enhance his sentence. Defendant appealed.

¶ 7. We review the court's summary-judgment decisions de novo, applying the same standard as the trial court. Sabia v. Neville, 165 Vt. 515, 523, 687 A.2d 469, 474 (1996). Summary judgment is appropriate when there are no genuine issues of material fact, and a party is entitled to judgment as a matter of law. V.R.C.P. 56(a).

¶ 8. On appeal, defendant attempts to distinguish Torres, arguing that it is inapplicable because, in that case, we addressed only the legality of a conviction that was enhanced by a prior illegal conviction, but not the sentence that was imposed. He further submits that this case is controlled by In re Manning, 2016 VT 53, 202 Vt. 111, 147 A.3d 645. In Manning, we reversed the sentence imposed on a DUI-4 conviction after concluding that the plea colloquy on a prior DUI-3, used to enhance the defendant's sentence on the DUI-4, was inadequate. Id. ¶¶ 18-19. Finally, defendant argues that, at best, these two cases are in conflict and therefore Manning controls as the more recent case.

¶ 9. We conclude that Torres is applicable here. In Torres, the defendant filed a PCR petition, claiming that his conviction for second-degree aggravated domestic assault required a prior domestic-assault conviction and that, because he had no such prior conviction, his conviction for second-degree aggravated domestic assault must be vacated.³ The defendant also claimed that his attorney was ineffective when he failed to investigate the alleged prior conviction and allowed him to plead guilty to the second-degree aggravated domestic assault charge. We acknowledged that the defendant had not previously been convicted of domestic assault—the case had been charged but was later dismissed—but held that the defendant waived his right to challenge his supposed prior domestic-assault conviction as an element of his subsequent aggravated-domestic conviction when he pled guilty to the subsequent offense.⁴ Torres, 2004 VT 66, ¶ 1, 177 Vt. 507, 861 A.2d 1055.

¶ 10. We reiterated that a voluntary plea of guilty, with an acknowledgement that by pleading guilty the defendant is giving up appeal rights, waives all "non-jurisdictional defects" in the prior proceedings, with limited exceptions that are "inherent in the requirement that pleas be made knowingly and voluntarily." Torres, 2004 VT 66, ¶ 9, 177 Vt. 507, 861 A.2d 1055 (quotations omitted); see also State v. Armstrong, 148 Vt. 344, 345-46, 533 A.2d 1183, 1184 (1987) (noting that guilty plea constitutes waiver of "procedural shortcomings," claims that "prosecution obtained evidence unlawfully," and "all nonjurisdictional defects in the proceedings leading up to the plea, including allegedly illegal searches and seizures"). Thus, a guilty plea or plea of no contest waives most appellate challenges to a defendant's conviction, with few exceptions.⁵ See United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001) (holding that venue is nonjurisdictional); United States v. Schuman, 127 F.3d 815, 818 n.* (9th Cir. 1997) (Kozinski, J., concurring) (listing jurisdictional issues, which are not subject to waiver by guilty plea).

¶ 11. In Torres, after examining the record of the plea to the second-degree aggravated assault, we determined that the defendant entered a knowing and voluntary guilty plea to the charge and concluded that he "understood that he was giving up appeal rights by pleading [guilty]." 2004 VT 66, ¶ 11, 177 Vt. 507, 861 A.2d 1055. Therefore, we concluded, "he may not challenge his conviction now on grounds that he has never been convicted of a domestic assault, and thus cannot be guilty of committing a ‘second or subsequent offense.’ " Id.

¶ 12. Torres dictates the outcome here. Indeed, it is undisputed that defendant pled no contest to obstruction of justice, and, in doing so, knowingly, voluntarily, and expressly waived his right to appeal. This waived his right to appeal all nonjurisdictional defects to his obstruction charge, and, under Torres, this includes the existence of any underlying convictions that made him eligible for a sentencing enhancement.

¶ 13. Defendant's argument that the waiver doctrine applies only to challenges to convictions and not to sentences is unavailing. The defendant in Torres argued that both his conviction and sentence should be vacated. Id. ¶ 4. He challenged the enhancement to the charge, and thus also challenged the increase to his sentence, based upon the alleged prior conviction. In Torres we were not required to address the sentence because we held that the defendant waived the right to challenge the conviction upon which the sentence was based. Id. ¶ 15. Here, defendant challenges a sentence that was enhanced by prior convictions. Any distinction between Torres and this case with respect to what was challenged is of no moment. As in Torres, here defendant attempts to collaterally attack nonjurisdictional defects in a prior proceeding. He expressly waived this right when he entered a voluntary and knowing no contest plea to obstruction of justice, and, in doing so, affirmed that he understood that he was relinquishing any right to appeal.

¶ 14. Defendant's next argument is that Manning is controlling. However, the procedural posture of this case is easily distinguished from that of Manning because Manning did not involve a knowing and voluntary guilty plea that would...