State v. Rosenfield
Decision Date | 26 February 2016 |
Docket Number | No. 15–080.,15–080. |
Citation | 2016 VT 27,142 A.3d 1069 |
Parties | STATE of Vermont v. Michael ROSENFIELD. |
Court | Vermont Supreme Court |
H. Dickson Corbett, Chittenden County Special Deputy State's Attorney, Orange County State's Attorney's Office, Chelsea, for Plaintiff–Appellee.
Paul D. Jarvis of Jarvis and Kaplan, Burlington, for Defendant–Appellant.
Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.
REIBER
, C.J.
¶ 1. Defendant appeals the denial of his motion, which requested that the trial court “correct the record” by amending his third driving-under-the-influence (DUI) conviction to appear as a DUI–1. Defendant filed the motion with the ultimate goal of reducing his conviction from a felony to a misdemeanor to reduce its collateral consequences. We affirm.
¶ 2. In 2005 and 2008, defendant was convicted of two DUIs that occurred while he was eighteen and twenty-one years old, respectively. In February 2014, defendant pleaded guilty to a DUI–3, which occurred when he was twenty-seven years old. Because he had previously been convicted of two DUIs, defendant was subject to enhanced penalties. See 23 V.S.A. § 1210(d)
(). Based on the plea agreement, the court sentenced him to one-to-three years, all suspended except for 180 days of home confinement, with standard and special conditions of probation. Because the maximum term of imprisonment for a DUI–3 is greater than two years, defendant's latest conviction is a felony conviction. See 13 V.S.A. § 1
(). Defendant stresses that it will not only preclude him, a hunter, from owning a gun but also negatively affect his job prospects.
¶ 3. Just days after this DUI–3 conviction, defendant filed a motion to seal the records of the two prior convictions through 33 V.S.A. § 5119(g)
, which allows for the sealing of records for many crimes committed before age twenty-one, including most DUIs. Defendant supported this motion by stating that he was charged with the first two DUIs when he was twenty-one years old or younger. He made this argument even though the relevant statute requires that the underlying crime—not the charge—occur prior to the defendant attaining the age of twenty-one and the second DUI actually occurred when defendant was already twenty-one.1 33 V.S.A. § 5119(g). Nevertheless, this motion was granted in April 2014 and the DUI–1 and DUI–2 were both sealed.
¶ 4. Defendant then filed a motion to modify the third sentence. In this motion, he argued simply that the sealing of his two prior convictions retroactively made the existing third sentence outside the statutory maximum for a DUI–1; in other words, that the third sentence must be amended because defendant was no longer subject to enhanced, felony sentencing and the crime must be a misdemeanor. A week after the court granted the motions to seal, this motion was denied on the basis that his record had shown two prior DUI convictions at the time of sentencing. In other words, at the time of conviction on the DUI–3 charge defendant's record showed two prior offenses. The court stated that Defendant next filed what he describes as a “motion to correct the record,” which was denied for the same reason as the motion to modify. He then filed a motion to reconsider, which was also denied. Defendant now appeals the denial of the motion to correct the record.2
¶ 5. Defendant styles his pleading as a “motion to correct the record,” but the relief he seeks is not available through either Rule 35
or Rule 36 of the Vermont Rules of Criminal Procedure. A Rule 35 challenge can be brought at any time to correct an illegal sentence. See V.R.Cr.P. 35(a) (). However, this rule tracks its federal analogue—Federal Rule of Criminal Procedure 35 —which is intended to correct ambiguous sentences and arithmetical, technical, or other clear errors in sentences. See V.R.Cr.P. 35, Reporter's Notes (“This rule is derived from Federal Rule 35 ”); see also United States v. Gallego, 943 F.Supp. 343, 344–45 (S.D.N.Y.1996) ( ). Defendant's DUI–3 record is not the result of an arithmetical, technical, or other clear error because the record at sentencing indicated that defendant already had two DUI convictions.
¶ 6. Indeed, defendant's challenge to his DUI–3 does not even fall under the purview of Rule 35
, which is focused on sentences, not on convictions. His challenge is a challenge to a conviction, not a challenge to a sentence, because a DUI–3 is a chargeable offense rather than simply an enhanced sentence. See State v. Morrissette, 170 Vt. 569, 569, 743 A.2d 1091, 1091 (1999) (mem.) (upholding defendant's DUI–3 conviction, where he was both charged with and convicted of DUI–3, rather than merely subject to enhanced punishment), overruled on other grounds by
In re Manosh, 2014 VT 95, 197 Vt. 424, 108 A.3d 212. Moreover, as defendant concedes, the “[third conviction] was correct when it was entered” because it was based on the two prior unsealed DUI convictions. See State v. Oscarson, 2006 VT 30, ¶ 9, 179 Vt. 442, 898 A.2d 123 ( ). In short, the DUI–3 cannot now be amended through Rule 35 because it was correct when entered and—as a conviction, not a sentence—is not subject to Rule 35.
¶ 7. Similarly, the correction of record provision of Rule 36
does not apply because the authorization in the rule is limited to clerical mistakes. Amending defendant's conviction from a DUI–3 to a DUI–1 is a substantive amendment dependent on the underlying facts, not a mere correction of a clerical mistake. Compare State v. Cornell, 2014 VT 82, ¶ 9, 197 Vt. 294, 103 A.3d 469 () with Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 367, 543 A.2d 1320, 1322 (1988) ( ) and State v. Champlain Cable Corp., 147 Vt. 436, 439, 520 A.2d 596, 599 (1986) ().
¶ 8. Rather than relying on a procedural mechanism, defendant argues that relief is available directly through 33 V.S.A. § 5119(g)
. This section requires the court to determine that defendant committed the crime before turning twenty-one years old, that two years have elapsed since defendant's final discharge, and that defendant has been rehabilitated. It reads, in its entirety:
or adjudicated delinquent for such an offense after the initial conviction, and no new proceeding is pending seeking such conviction or adjudication; and
(3) the person's rehabilitation has been attained to the satisfaction of the Court.
33 V.S.A. § 5119(g)
. Defendant claims that this section allows the court to do more than just seal records. He contends that it allows the court retroactively to amend convictions that had been enhanced by earlier sentences that were later sealed. Referring to the effect of § 5119(g), defendant maintains that “there are no conditions on this relief,” because, when the Legislature passed the statute, “it indicated that a juvenile or someone under the age of twenty-one has the right to a fresh new start.”
¶ 9. We conclude that § 5119(g)
does not have such a broad scope—it allows a defendant to make a motion to seal, not to make a motion to correct the record. In doing so, we read the statute according to its plain meaning. See Heisse v. State, 143 Vt. 87, 89, 460 A.2d 444, 445 (1983) (). The statute is entitled “sealing of records,” and empowers the court to order “the sealing of files.” 33 V.S.A. § 5119(g). It makes no mention of correcting records or amending later convictions. Had the Legislature intended for the statute to have that effect, it would have included such language. See State v. Jacobs, 144 Vt. 70, 75, 472 A.2d 1247, 1250 (1984) ( ). Furthermore, reading that effect into the statute would interfere with the principle of finality and veer from the principle that substantive review of an enhanced conviction is...
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State v. Cady, 17–277
...(per curiam). The writ is used only in extraordinary cases to correct errors when "necessary to achieve justice." State v. Rosenfield, 2016 VT 27, ¶ 24, 201 Vt. 383, 142 A.3d 1069 (Dooley, J., dissenting) (quotation omitted). Coram nobis relief is only available as a last resort and cannot ......
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Gray v. Treder, 2018-146
...by the Act interests that arise by operation of law in the absence of a deeded right, it would have said so. See, e.g., State v. Rosenfield, 2016 VT 27, ¶ 9, 201 Vt. 383, 142 A.3d 1069 ("Had the Legislature intended for the statute to have that effect, it would have included such language."......
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Gray v. Treder, 18-146
...the Act interests that arise by operation of law in the absence of a deeded right, it would have said so. See, e.g., State v. Rosenfield, 2016 VT 27, ¶ 9, 201 Vt. 383, 142 A.3d 1069 ("Had the Legislature intended for the statute to have that effect, it would have included such language."). ......
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State v. Cady
...266 (1964) (per curiam). The writ is used only in extraordinary cases to correct errors when "necessary to achieve justice." State v. Rosenfield, 2016 VT 27, ¶ 24, 201 Vt. 383, 142 A.3d 1069 (Dooley, J., dissenting) (quotation omitted). Coram nobis relief is only available as a last resort ......