Provencher, In re

• Citation: 127 Vt. 558,255 A.2d 180
• Decision Date: 03 June 1969
• Docket Number: No. 22-68,22-68
• Parties: In re Raymond N. PROVENCHER.
• Court: United States State Supreme Court of Vermont

Page 180

255 A.2d 180

127 Vt. 558

In re Raymond N. PROVENCHER.

No. 22-68.

Supreme Court of Vermont.

June 3, 1969.

Joseph W. Kozlik, Rutland, for petitioner.

Robert I. Tepper, State's Atty., and Petar A. Cady, Asst. State's Atty., Rutland, for defendant.

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

BARNEY Justice.

The petitioner is under sentence and in confinement for escape from jail. He pleaded guilty to the offense, but now, by the post-conviction relief petition, questions the lawfulness of his confinement. After hearing, having found the facts, the lower court denied the petition.

The fact of the escape from jail is not questioned. Instead, the petitioner argues that his breakout was justifiable, or at least excusable. He seeks invalidation of his conviction and release from confinement on the grounds that his detention at the time of his escape was itself illegal.

As is the case in so many areas of judicial review, the simplicity of the problem presented is superficial. The consequences of uncritical application of judicial catchphrases is frequently injustice to the parties, or an aberrant decision, or both. The tempting answer in this case is to say, without reservation, that the plea of guilty to escape ends the matter as to issues appropriate for appeal. See In re Dobson, 125 Vt. 165, 166, 212 A.2d 620. Although that case arose under the classical habeas corpus proceeding, rather than the post-conviction statute invoked here, the substantive considerations are essentially the same. In re Clark, Vt., 255 A.2d 178. The authority of the courts to examine into the legaility of the sentence, the jurisdiction of the sentencing court and the constitutionality of the proceedings is set out in 13 V.S.A. § 7131.

The Dobson approach is grounded in the concept of waiver. The policy consideration is put forth in its statement that a respondent ought not to have the benefit of a more complete review after pleading guilty than he would have after a complete trial. In re Dobson, supra, 125 Vt. 165, 166, 212 A.2d 620. This is manifestly true and just with respect to the lesser shortcomings that pester most proceedings without substantively wronging a respondent. Furthermore, typically, the appellate court does more reviewing than it is required to do, or than it says it will. See State v. Kalis, Vt., 248 A.2d 721, 722.

In spite of these considerations, there is one kind of situation which requires further definition. Particularly where more serious crimes are charged, if the consequences of a guilty plea are held to comprehend a waiver of all defects subject to waiver, a respondent may be driven to stand trial in order to preserve for review an issue essentially legal in nature. This dilemma has received recent attention. See ABA Standards, § 1.3(c) and commentary thereto (Tent. Draft, March 1969).

Vermont is fortunate and forehanded in having already available legal machinery for testing such legal questions in advance of trial within its criminal procedure. 12 V.S.A. § 2386. Thus, challenges to criminal proceedings resting on questions of legal sufficiency or propriety do not require a full-dress trial in order to have such issues reviewed. Furthermore, the broad availability of counsel for indigent respondents in this state, under 13 V.S.A. § 6503 and the associated court rules, justifies the insistence on compliance with procedural requirements fairly set out by this Court.

Therefore, claimed defects appropriate for raising by pre-trial motion should be preserved by such a motion. They are then available for testing by certification if their nature and content warrants. Failure to carry through this procedure will justify a holding by the court concerned that a plea of guilty operates as a waiver of those claims of error subject to waiver.

The respondent who fails to comply with this procedural approach exposes himself to the allegation of waiver, and must, in the usual case, abide that consequence. But the scope of review in post-conviction relief is broad, and its concerns include the exercise of discretionary powers by courts. See State v. Morse, 126 Vt. 314, 320, 229 A.2d 232. On that account, the courts may reserve the right, in any case, to review the application of this doctrine of waiver on plea of guilty. Certainly this will be true during the period when the requirements of this case are becoming a matter of known and understood practice. And it must...