Velde v. State

• Citation: 2023 Vt Super 110101
• Docket Number: 22-CV-01314
• Decision Date: 01 November 2023
• Parties: Thomas Velde, Jr. v. State of Vermont et al
• Court: Superior Court of Vermont

1

2023 Vt Super 110101

Thomas Velde, Jr.
v.
State of Vermont et al

No. 22-CV-01314

Superior Court of Vermont, Civil Division, Rutland Unit

November 1, 2023

ENTRY REGARDING MOTION

Mary Miles Teachout, Superior Judge (Ret.), Specially Assigned

Title: Motion for Summary Judgment; Cross Motion for Summary Judgment; (Motions: 2; 3)

Filer: Emily Tredeau; Nicholas R. Battey

Filed Date: March 09, 2023; April 10, 2023

Petitioner Velde seeks post-conviction relief from the sentence imposed pursuant to a plea agreement which allowed for habitual offender sentence enhancement. He seeks to vacate the habitual offender enhancement portion of the sentence and be resentenced.

Facts

The parties do not dispute the material facts:

In 2009, Mr. Velde was convicted of unlawful trespass based on a plea of guilty and sentenced to one month to two years State v. Velde, 1218-8-08 Rdcr. As the transcript shows, it is undisputed that when he pled guilty to that charge in 2009, he did not agree to the facts upon which the charge was based

In March of 2018, Petitioner Velde was being tried on four criminal charges and the State was seeking an enhanced habitual offender penalty based on prior convictions, one of which was the 2009 unlawful trespass. State v. Velde, 461-4-16 Rdcr.

Midway through the trial in 2018, he reached a plea agreement with the State that was accepted by the court. He pled guilty to two charges: leaving the scene of an accident with a fatality and careless and negligent driving. The other two charges were dismissed. In addition, he pled guilty to being a habitual offender because of prior convictions, including the 2009 conviction. This provided for the possibility of penalties to be enhanced. The maximum penalty for each of the offenses to which he pled guilty was 15 years. A contested sentencing hearing was scheduled. At the sentencing hearing, he received the enhanced sentence of 19 years to life imprisonment on each of the two charges.

In this post conviction relief case, Mr. Velde does not seek to vacate any conviction. He seeks relief from the enhancement portion of the sentence imposed in March of 2018 and the opportunity to be resentenced on the two convictions.

2

Analysis

Petitioner acknowledges that at the 2018 change of plea hearing, he did not specifically preserve the opportunity to challenge habitual offender status in a later post conviction relief action, but argues that at the time he was not required to do so and so did not waive the opportunity. The State argues that case law establishes that the right was waived as a matter of law when not preserved at the time of the 2018 change of plea.

In addition to the factual history set forth above, there is a legal history over the same time period in which the legal requirements for challenging the basis for sentence enhancement were evolving and not necessarily with clarity and consistency.

In 2002, in Boskind, the Vermont Supreme Court ruled that a person who was no longer serving a sentence for a prior DUI conviction but was charged with DUI-3, which carries a higher penalty if there are prior convictions, could not challenge the prior conviction at a sentencing hearing in the criminal court in the new DUI-3 case but was required, and allowed, to challenge the basis for the conviction through a post conviction relief action filed in the civil court pursuant to 13 V.S.A. § 7131. State v. Boskind, 174 Vt. 184, 192 (2002).

In 2004, in Torres, the Vermont Supreme Court issued a ruling relied on by the State in this case. The Petitioner had pled guilty to a second degree aggravated assault charge, which allowed for an enhanced sentence if he had a conviction for a prior domestic assault. It turned out that although he had been previously charged with a domestic assault, the charge had been dismissed, so at the time of his plea he did not actually have a prior conviction. The Court ruled, however, that when he pled guilty to the aggravated charge, he waived all non-jurisdictional defects. The Court nonetheless remanded the case to allow him to pursue his alternative claim based on ineffective assistance of counsel. In re Torres, 2004 VT 66.

In 2017, in Stocks, the Vermont Supreme Court granted post conviction relief on the basis that a criminal conviction based on a plea could not stand unless the person had affirmed the facts that supported the elements of the crime in compliance with the requirements of Rule 11 of the Vermont Rules of Criminal Procedure. In re Stocks, 2014 VT 27.

In 2016, in Manning, Petitioner, who had been convicted of DUI-4 after a trial and received an enhanced sentence based on having prior convictions, sought post conviction relief from his DUI-3 conviction in order to remove the sentence enhancement. The Court ruled that although his plea to the DUI-3 was defective, the remedy sought was "at odds with our established law as articulated in State v. Boskind . . .Boskind held that the relief available to petitioner on account of the improper conviction for DUI-3 is limited to a challenge to any enhancement of his sentence in the context of his DUI-4 conviction." In re Manning, 2016 VT 53, ¶ 20. The Court vacated the sentence to provide for him to be resentenced without the habitual offender enhancement. This is the case relied on by Petitioner in this case.

In 2017, in Bridger, the Court again ruled, as in Stocks, that prior convictions resulting from guilty pleas based on a change of plea record that showed no admission to the charged facts could be vacated through the post conviction relief process.

3

This was the state of the law when Mr. Velde pled guilty on March 18, 2018 to the two charges and being a habitual offender. Thus, for the 18...