State v. Duval

• Decision Date: 15 February 1991
• Docket Number: No. 88-006,88-006
• Parties: STATE of Vermont v. Reginald DUVAL.
• Court: Vermont Supreme Court

Page 321

589 A.2d 321

156 Vt. 122

STATE of Vermont v. Reginald DUVAL.

No. 88-006.

Supreme Court of Vermont.

Feb. 15, 1991.

William Sorrell, Chittenden County State's Atty., Burlington, and Gary S. Kessler and Rosemary Hull, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and William A. Nelson and Henry Hinton, Appellate Defenders, Montpelier, for defendant-appellant.

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

MORSE, Justice.

Defendant claims, in this appeal from a sentence for driving under the influence (DUI), that his rights to assistance of counsel and freedom from double jeopardy were violated when the sentencing judge failed to honor a prior determination that defendant would not be incarcerated. We affirm.

On October 5, 1987, defendant appeared for arraignment on a charge of DUI before Judge Wolchik, who denied defendant's request for assistance of counsel at public expense. A court form entitled "Request for Assignment of Lawyer & Order" had been filled out by defendant, and the judge checked the parts of the order indicating:

The Court finds as fact your income and expenses, dependents and property as set forth above, and has determined that you do not qualify for the appointment of a Public Defender or assigned counsel for the following reasons:

....

c. x Although you may be a needy person, you are not entitled to a lawyer. This Court has determined at arraignment, and stated on the record, that if you are convicted it will not sentence you to a period of imprisonment or fine you more than $1,000.00.

See 13 V.S.A. §§ 5231, 5201(4)(B); V.R.Cr.P. 44(a). At this time, defendant pled not guilty and was released on his own recognizance.

Defendant returned to court on November 6, 1987, and indicated he wanted to change his plea. The presiding judge, Judge Pineles, permitted defendant to appear pro se and, after taking appropriate steps to ensure the plea was voluntary, accepted the plea of guilty.

Prior to sentencing, Judge Pineles questioned defendant about his prior criminal history. Only then did the court learn that defendant was on probation for two recent related driving offenses involving alcohol. Still believing that defendant voluntarily appeared pro se, the judge ordered a presentence investigation. After this hearing, when it became apparent that a sentence involving incarceration might be appropriate, Judge Pineles sent notice to a public defender assigning him to represent defendant.

At a status conference, Judge Pineles refused to honor the "no incarceration" pledge given by Judge Wolchik and instead offered defendant the opportunity to withdraw his plea of guilty. On the advice of appointed counsel, defendant rejected the judge's offer and proceeded to sentencing, maintaining that Judge Pineles could not impose incarceration. Defendant was thereafter sentenced to three to six months, all suspended except for nine days and probation with conditions. Defendant appeals this sentence.

I.

Indigent criminal defendants have a constitutional right to assistance of counsel at public expense. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963). However, this right is limited to offenses for which the defendant receives a sentence of imprisonment upon conviction. Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). In our public defender statute, Vermont has statutorily codified this right, 13 V.S.A. § 5231, and expanded it to include convictions which carry a fine in excess of $1,000. 13 V.S.A. § 5201(4)(B). The statute, however, provides an exception if "the judge, at the arraignment but before the entry of a plea, determines and states on the record that he [or she] will not sentence the defendant to a fine of more than $1,000.00 or a period of imprisonment if the defendant is convicted of the misdemeanor." Id.

The statute requires the court to make a sentencing forecast before the entry of a plea made without counsel. This requirement protects defendants from having to proceed, without benefit of counsel, through plea negotiations that might result in imprisonment. See Vermont Code of Professional responsibility DR 7-104(A)(1) (prohibiting communications with parties known to be represented by counsel).

Defendant claims that this requirement also prevents the court from changing its mind after it makes its initial § 5201(4)(B) determination. He maintains that, once the plea is accepted in a case where assistance of counsel was denied, the court may not reverse its prior denial of counsel. Rather, the court is bound just as if it had accepted a plea agreement reached by the parties that defendant not be incarcerated. Cf. In re Meunier, 145 Vt. 414, 420, 491 A.2d 1019, 1024 (1985) (prosecution held to most meticulous standards of both promise and performance and will be bound by express terms of its agreement). Generally, breach of a plea agreement is treated like breach of a contract, and a defendant may demand specific performance of the terms of the agreement. Id. at 422, 491 A.2d at 1025.

Defendant argues that a 13 V.S.A. § 5201(4)(B) ruling should be treated as a binding plea agreement: "The undertaking by a judge ... not to impose a sentence of imprisonment, is analogous to the undertaking by a prosecutor, pursuant to a plea agreement, to recommend a particular sentence." The flaw in defendant's argument is that no sentencing contract was created here. The arraignment judge did not unconditionally promise that defendant would not be incarcerated under any circumstances. Rather, the judge made a conditional promise that defendant would not be incarcerated without benefit of assigned counsel. Defendant was entitled to rely only on that limited promise.

We considered a similar issue in State v. Loehmann, 143 Vt. 372, 467 A.2d 118 (1983). In Loehmann, at defendant's arraignment on a DUI charge, the state's attorney denied any intention of requesting imprisonment. Id. at 374, 467 A.2d at 119. The judge then denied defendant assigned counsel because he was not poor enough to qualify. Id. On appeal, defendant argued that he had changed his plea in reliance on the state's attorney's "promise" and was entitled to specific performance. Id. at 375, 467 A.2d at 119. The Court rejected defendant's argument:

[T]he prosecutor's response during arraignment [did not] rise to the level of a "promise," given the limited context in which it was made. The prosecutor was merely responding to a question on the preliminary matter of assignment of counsel.

Id. at 376, 467 A.2d at 120.

Similarly, Judge Wolchik's statements here did not rise to the level of a plea agreement. The pledge not to incarcerate was made in the "limited context" of "the preliminary matter of assignment of counsel" and did not operate as consideration to induce defendant into entering a plea of guilty. Indeed, defendant initially pled not guilty and only later changed his plea to guilty. He was then offered the opportunity to withdraw his guilty plea and start over with the assistance of counsel. Based on the advice of counsel, defendant chose as a matter of strategy to stand on his guilty plea in order to preserve his objection for this appeal. The offer to withdraw the guilty plea restored to defendant his Sixth Amendment rights as if he had not previously entered a plea.

Finally, even if defendant relied on the court's "promise" in making damaging admissions about his driving record, this reliance caused him no prejudice. Defendant's prior convictions were a matter of record, and it only could have been to his benefit to own up to information that inevitably would be brought to the court's attention.

II.

The remaining issue is whether double jeopardy prevents a judge from imposing a harsher sentence on defendant than that originally intended after acceptance of his plea. Defendant first argues that, because he was compelled to proceed without counsel and enter a plea of guilty in the hopes of not being incarcerated, he cannot now be compelled to waive his double jeopardy right against harsher punishment.

In State v. Boyer, 144 Vt. 393, 481 A.2d 15 (1984), we reviewed a double jeopardy claim challenging the validity of an increased sentence imposed under 13 V.S.A. § 7042(b). Defendant pled nolo contendere to two driving-related offenses and was sentenced. After defendant began serving his sentence, the State moved for sentence review on the ground that, at the time of sentencing, both the State and the court were unaware that defendant had previously been convicted for DUI in which a fatality had occurred. The court granted the motion and imposed a harsher sentence. Id. at 394, 481 A.2d at 15-16. We rejected defendant's double jeopardy claim, relying on United States Supreme Court precedent for the proposition that " 'the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase.' " Id. at 395, 481 A.2d at 16 (quoting United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980)). See also State v. Rice, 145 Vt. 25, 29-30, 483 A.2d 248, 250-51 (1984) (reaffirming Boyer and stating that double jeopardy does not give defendant the "right to know at any specific moment in time what the exact limit of his punishment would turn out to be"). Similarly, defendant was not put in double jeopardy here.

Defendant goes on to argue that, because the court accepted a guilty plea, the defendant was convicted of a crime, jeopardy attached, and he could not be convicted a second time.

First, the rule is only that jeopardy "generally" attaches at the time of acceptance of the guilty plea, State v. Forbes, 147 Vt. 612, 616, 523 A.2d 1232, 1234-35 (1987); the rule has exceptions. The attachment of jeopardy upon the court's...