State v. Brown

• Decision Date: 22 March 1996
• Docket Number: 94-380,Nos. 94-277,s. 94-277
• Citation: 676 A.2d 350,165 Vt. 79
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Shawn E. BROWN. STATE of Vermont v. Richard A. PERYER.

Page 350

676 A.2d 350

165 Vt. 79

STATE of Vermont v. Shawn E. BROWN.

STATE of Vermont v. Richard A. PERYER.

Nos. 94-277, 94-380.

Supreme Court of Vermont.

March 22, 1996.

Robert L. Sand, Department of State's Attorneys, Montpelier, for plaintiff-appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for defendants-appellants.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Defendants appeal felony sentences imposed following convictions for driving under the influence of intoxicating liquor (DUI), third offense. 23 V.S.A. § 1210(d). Defendants contest the use of their prior uncounseled DUI convictions to support the felony third-offense sentences on two grounds: (1) that enhancing third-offense sentences based on prior uncounseled convictions violates the right to counsel under the federal and state constitutions; and (2) that prior uncounseled convictions in which defendants received suspended sentences violate our decision in State v. DeRosa, 161 Vt. 78, 633 A.2d 277 (1993), and cannot be used to enhance a sentence for a later offense. Defendants' first claim is addressed in State v. Porter, 164 Vt. 515, 671 A.2d 1280 (1996). In Porter, this Court held that a defendant's prior uncounseled DUI conviction, for which the defendant was sentenced only to pay a fine, could be used to support a felony third-offense DUI sentence. ¹ Porter, 164 Vt. at ----, 671 A.2d at 1284. In this opinion, we address only defendants' second claim. Although we hold that prior convictions that violate DeRosa may not be used for enhancement purposes, we find that defendants have not made a sufficient showing that their prior convictions were obtained in violation of DeRosa. Accordingly, we affirm defendants' felony third-offense sentences.

I.

Defendant Brown's 1993 felony sentence for DUI, third offense, was predicated on a 1992 conviction, for which he was sentenced to pay a fine of $200, and on a 1985 conviction, for which he received a zero-to-nine month sentence, all suspended. In both cases, Brown entered pro se guilty pleas. The record of the 1992 conviction indicates that counsel was denied because no jail term would be imposed. For the 1985 conviction, the record produced by Brown indicates only that counsel was denied, without giving the reason for the denial. On appeal, the State has produced two documents that indicate that Brown was denied counsel in 1985 because he was not financially eligible, and that he waived his right to be represented by counsel in that proceeding.

Defendant Peryer's 1994 felony sentence for DUI, third offense, was predicated on a 1986 conviction, for which he received a zero-to-twelve month sentence, all suspended, and on a 1985 conviction, for which he received a $200 fine and a thirty-day suspended sentence. Peryer was represented by counsel in the 1986 proceeding. Peryer produced a record for the 1985 conviction indicating only that counsel was denied, without giving the reason for denial. Again, on appeal the State has produced documents that indicate that Peryer was denied counsel in 1985 because he was not financially eligible, that he filed a notice of intent to hire a lawyer, and then later signed a waiver of counsel.

Defendants moved to strike the portions of the State's printed cases containing these additional documents, and to strike all references to the documents in the State's briefs. The documents were not among the original papers and exhibits on file in the trial court and consequently are not part of the record on appeal. V.R.A.P. 10(a); State v. Williams, 143 Vt. 396, 406, 467 A.2d 667, 672 (1983). Having failed to introduce the documents as evidence below, the State may not attempt to "proffer [evidence] through the 'back door' of a printed case." Williams, 143 Vt. at 406, 467 A.2d at 672. Defendants' motion to strike is granted. For the purposes of this opinion, we will disregard the additional documents presented by the State.

II.

In DeRosa, we held that when a trial judge denies counsel to an indigent defendant because a sentence of imprisonment will not be imposed, the trial judge may not "impose on defendant a conditionally suspended sentence and probation." DeRosa, 161 Vt. at 81, 633 A.2d at 279. We specifically grounded our decision in the Public Defender Act (PDA), 13 V.S.A. §§ 5201-5277, although we noted that "[o]ur interpretation of the PDA [was] in accord with federal precedent defining a defendant's federal constitutional right to assistance of counsel." DeRosa, 161 Vt. at 81, 633 A.2d at 279.

The DeRosa violations alleged by defendants occurred several years before our decision in DeRosa, at a time when, according to defendants, "trial judges commonly refused to assign counsel" although intending to impose a suspended sentence. The State argues that the rule announced in DeRosa should be limited in its application to cases on direct appeal at the time it was decided and subsequent cases. Following the State's approach, indigent defendants who were denied counsel and sentenced to a suspended sentence and probation, and whose convictions were final before DeRosa was decided, would be subject to sentence enhancement on the basis of the prior uncounseled conviction. Only those defendants whose prior convictions were not yet final when DeRosa was decided would receive the benefit of our decision in that case. In support of its argument, the State relies on our decision inState v. Shattuck, 141 Vt. 523, 529, 450 A.2d 1122, 1125 (1982). InShattuck we adopted the common-law rule on retroactivity, which provides " ' "that a change in law will be given effect while a case is on direct review." ' " Id. (quoting United States v. Johnson, 457 U.S. 537, 543, 102 S.Ct. 2579, 2583, 73 L.Ed.2d 202 (1982)) (quoting Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 1736, 14 L.Ed.2d 601 (1965)).

We also noted in Shattuck, however, that "[t]he threshold inquiry in cases raising the issue of the retroactivity of judicial decisions is whether a new rule of law has been announced." Id. at 528, 450 A.2d at 1124. We acknowledged that our decision in State v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981), which overruled an earlier decision, "plainly satisfie[d] that requirement," Shattuck, 141 Vt. at 528, 450 A.2d at 1124, because Gardner changed " 'the meaning of a statute as determined by prior decision.' " Id. (quoting State v. Burstein, 85 N.J. 394, 427 A.2d 525, 531 (1981)). In DeRosa, however, we did not announce a new rule, in the sense of overruling or significantly altering a prior decision; we merely interpreted the PDA in a case of first impression. See People v. Garcia, 36 Cal.3d 539, 205 Cal.Rptr. 265, 269-70, 684 P.2d 826, 830-31 (1984) (decision providing first authoritative interpretation of felony-murder statute did not constitute clear break with past that would prevent retroactive application of rule). Nor was our decision in DeRosa "entirely new and unanticipated." Johnson, 457 U.S. at 551, 102 S.Ct. at 2587. We relied in DeRosa upon the plain language of the PDA, and also noted that several federal courts of appeal had reached the same result under the federal constitution. DeRosa, 161 Vt. at 82, 633 A.2d at 279.

We have previously observed that the "prospectivity doctrine is an exception to the general rule that judicial decisions are applied retroactively." American Trucking Ass'ns v. Conway, 152 Vt. 363, 377, 566 A.2d 1323, 1332 (1989); see also Garcia, 205 Cal.Rptr. at 269, 684 P.2d at 830 (ordinary assumption of retrospective operation applies where decision does not establish new rule or standards, but only elucidates and enforces prior law). We therefore hold that our interpretation of the PDA announced in DeRosa applies with equal force to earlier convictions that may be used for enhancement purposes under a recidivist statute such as 23 V.S.A. § 1210(d). Cf. Halliday v. United States, 394 U.S. 831, 833-34, 89 S.Ct. 1498, 1499-1500, 23 L.Ed.2d 16 (1969) (Harlan, J., concurring) (arguing in postconviction relief case that Court's prior decision interpreting Fed.R.Crim.P. 11 should be applied to all cases arising after amended version of rule became effective); id. at 835, 89 S.Ct. at 1500 (Black, J., dissenting) (arguing that retroactivity discussion was unnecessary because rule should be enforced in any case for which relevant portions of rule were in effect).

Even if DeRosa had announced a "new rule" like that at issue in Shattuck, our holding in Shattuck would not necessarily bar the application of that rule to defendants' prior convictions. Neither Shattuck nor the Johnson decision on which Shattuck relied specifically addressed the application of a new rule to cases that had become final before the rule was announced. Rather, the question facing both Courts was whether to apply a new rule retroactively to cases not yet final on appeal when the rule was announced, or to apply the rule only prospectively. Shattuck, 141 Vt. at 527, 450 A.2d at 1123; Johnson, 457 U.S. at 541, 102 S.Ct. at 2582. In Johnson, the Court avoided the issue of retroactive application to convictions already final. 457 U.S. at 547 n. 10, 102 S.Ct. at 2586 n. 10 (noting that "[m]embers of the Court continue to offer views on this troublesome question"); see also id. at 563-64, 102 S.Ct. at 2594-95 (Brennan, J., concurring) (joining Court's opinion on understanding that decision does not disturb retroactivity precedents as applied to convictions final at time of decision). In Shattuck we also noted that "extraordinary cases" might require full retroactive application. Shattuck, 141 Vt. at 529, 450 A.2d at 1125.

The rule announced in DeRosa could be considered such an "extraordinary case." The Supreme Court noted in Johnson that it has "regularly given complete retroactive effect to new constitutional rules whose major purpose 'is to overcome an aspect of the criminal trial that...