State v. Boskind

• Decision Date: 28 August 2002
• Docket Number: No. 98-470 , 99-335.,98-470
• Citation: 807 A.2d 358
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Jethro S. BOSKIND. State of Vermont v. John S. Boardman.

807 A.2d 358

STATE of Vermont v. Jethro S. BOSKIND.

State of Vermont v. John S. Boardman.

No. 98--335.

Supreme Court of Vermont.

May 24, 2002.

Motion to Reconsider and Clarify Granted August 28, 2002.

Jane Woodruff, Department of State's Attorneys, Montpelier (98-470), Lauren Bowerman, Chittenden County State's Attorney, Burlington, and John R. Treadwell, Assistant Attorney General, Montpelier (99-335), for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier (98-470), and Paul D. Jarvis of Jarvis and Kaplan, Burlington (99-335), for Defendants-Appellants.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

In these consolidated cases, defendants appeal their enhanced convictions for driving while intoxicated. The appeals present four significant issues: (1) whether a defendant can challenge a prior conviction used to enhance a sentence when the challenge is based on a claim other than a violation of right to counsel; (2) when a defendant has a right to challenge a prior conviction the State intends to rely upon for sentence enhancement, whether the proper forum for exercising that right is the sentencing proceeding in district court or a post-conviction relief (PCR) proceeding in superior court; (3) when the appropriate remedy for a defendant's challenge to a predicate conviction is governed by the post-conviction relief statute (13 V.S.A. § 7131), whether a defendant who challenges the prior conviction is "in custody under sentence" within the meaning of § 7131 when the defendant is no longer in custody for the conviction being challenged; (4) when a defendant challenges a prior conviction used for enhancement purposes on the basis of a failure to comply with V.R.Cr.P. 11, whether the burden of proof to demonstrate compliance shifts to the State where the defendant's evidence raises a substantial question about whether the defendant's plea to the challenged conviction was made in compliance with V.R.Cr.P. 11.

We hold that a defendant's right to challenge a prior conviction that the State intends to use to enhance a sentence is not limited solely to a claim that the conviction was obtained in violation of right to counsel. We further determine that the challenge must take place in superior court pursuant to Vermont's post-conviction relief statute and that a defendant is "in custody under sentence" for purposes of invoking the jurisdictional requirement of § 7131 where the defendant is challenging his current sentence by attacking the constitutionality of a prior conviction used to enhance the defendant's current sentence. We also conclude that the burden of proof remains on the defendant where the defendant's challenge to the prior conviction is based upon a claim that the trial court did not comply with V.R.Cr.P. 11 in accepting defendant's plea to the challenged predicate conviction.

Accordingly, we affirm the enhanced sentences imposed upon the respective defendants and hold that defendants, should they challenge convictions on the basis of a claim that the trial court did not comply with V.R.Cr.P. 11, must do so pursuant to 13 V.S.A. § 7131 where they have the burden to show that the trial court did not substantially comply with V.R.Cr.P. 11 in their pleas and that this noncompliance prejudiced them.

In February 1998, defendants John Boardman and Jethro Boskind were each separately arrested for DUI and charged with violating 23 V.S.A. § 1201(a)(2) ("A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway ... when the person is under the influence of intoxicating liquor."). For each defendant, the State sought the enhanced penalty for a DUI-third offense pursuant to 23 V.S.A. § 1210(d) ("A person convicted of violating section 1201 of this title who has twice been convicted of violation of that section shall be fined not more than $2,500.00 or imprisoned not more than five years, or both."). The State alleged that defendant Boardman had been previously convicted of DUI in 1991 and 1992, and that defendant Boskind had been previously convicted of DUI in 1988 and 1991. Defendant Boardman moved to dismiss the DUI-third offense enhancement, claiming that his prior DUI convictions, in each of which he was represented by counsel and pled guilty, were products of unconstitutional guilty pleas because of failure to comply with V.R.Cr.P. 11. Defendant Boskind moved to dismiss his enhancement, claiming that the 1991 conviction, in which he was represented by counsel, was the product of an unconstitutional nolo contendere plea because the court did not comply with V.R.Cr.P. 11.¹

The district court denied defendant Boardman's motion to dismiss his prior convictions, precluding his collateral attack on the sentence enhancement, because both of his prior convictions were counseled and had not been appealed, litigated in post-conviction proceedings, or withdrawn. Defendant Boardman pled guilty to the offense pursuant to a conditional plea agreement, by which he was sentenced to 2-to-4 years of supervised community service, but reserved the right to appeal from the denial of his motion to dismiss the enhancement allegation. After the court denied his motion to dismiss his prior conviction, defendant Boskind also pled guilty to the offense pursuant to a conditional plea agreement, by which he was sentenced to a term of 1-to-5 years, and similarly preserved his right to appeal.

Both trial courts relied on Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), in denying each defendant's motion. In Custis, the United States Supreme Court considered the availability, during federal sentencing hearings, of collateral attacks on prior convictions that serve as the basis for enhancement under the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e). The Court held that Congress did not intend to permit defendants to challenge the validity of such convictions at federal sentencing hearings, except in cases where the prior convictions were obtained in total denial of the right to counsel, contrary to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Custis, 511 U.S. at 496, 114 S.Ct. 1732; see also Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 448, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

Since briefing and oral argument in this case, the United States Supreme Court has issued two decisions amplifying the meaning of Custis.² In Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), the Court considered whether, after the sentencing proceeding has concluded, the individual who was sentenced may challenge his federal sentence through a motion under the federal post-conviction relief statute (28 U.S.C. § 2255) on the ground that his prior convictions were unconstitutionally obtained. The Court held that "as a general rule, he may not." Id. at 376, 121 S.Ct. 1578. In Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), the Court again confronted the question of whether federal post-conviction relief is available when a prisoner challenges a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody. The Court determined that "relief is similarly unavailable to state prisoners through a petition for a writ of habeas corpus under 28 U.S.C. § 2254." Id. at 396-97, 121 S.Ct. 1567.

The decisions in Daniels and Coss put to rest the debate over whether—as defendants originally argued—the lesson to be gleaned from Custis was merely about where a defendant could attack a prior conviction for constitutional infirmity. "Custis presented a forum question. The issue was where, not whether, the defendant could attack a prior conviction for constitutional infirmity." Nichols v. United States, 511 U.S. 738, 765, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (Ginsburg, J., dissenting) (emphasis in original). As the dissent here accurately observes, many state courts allowed a challenge to a predicate conviction within an enhanced sentence proceeding for reasons other than denial of counsel because prior to Custis it was assumed that the federal constitution required the procedure. Defendants acknowledge—as they must—that in light of Custis and subsequent cases, the issue before us is not whether the procedure they seek is constitutionally required, but whether, as a matter of policy we should allow the challenges to predicate convictions within the enhanced sentencing proceedings or whether the challenge should be by a petition to superior court for post-conviction relief, assuming that the "in custody" requirement was satisfied. We agree that Daniels and Coss do not alter the issue before us.

While Daniels and Coss are conclusive as to the limitations placed upon defendants who seek a federal forum to collaterally attack a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction, the decisions do not preclude this Court from deciding: (a) whether a defendant may collaterally challenge a prior conviction which the State intends to rely upon to enhance a sentence when the challenge is based on a claim other than a violation of the right to counsel, and (b) if so, where that challenge should take place.

We hold that a defendant's collateral challenge to a prior conviction upon which the State relies to enhance a sentence is not limited solely to claims of invalidity based upon a violation of the right to counsel. Defendants and the State agree that Vermont practice since In re Stewart, 140 Vt. 351, 438 A.2d 1106 (1981), has been to permit post-conviction relief challenges to "enhancement" convictions, so long as the petitioner was "in custody" on the recidivist sentence. See In...