State v. Duval

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-006


State of Vermont                             Supreme Court

      v.                                     On Appeal from
                                             District Court of Vermont
Reginald Duval                               Unit No. 2, Chittenden Circuit

                                             January Term, 1990


Dean B. Pineles, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and Gary S.
  Kessler and Rosemary Hull, Department of State's Attorneys, Montpelier,
  for plaintiff-appellee

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


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     MORSE, J.   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
(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 (1979); Argersinger v. Hamlin, 407 U.S. 25, 37 (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 $1000.00 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 (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 acceptance of a guilty plea is neither automatic
nor irrevocable.  United States v. Santiago Soto, 825 F.2d 616, 618 (1st
Cir. 1987).  "The mere acceptance of a guilty plea does not carry the same
expectation of finality and tranquility that comes with a jury's verdict or
with an entry of judgment and sentence."  Id. at 620; see United States v.
Sanchez, 609 F.2d 761 (5th Cir. 1980)(jeopardy did not attach when the court
conditionally accepted a guilty plea); Santiago Soto, 825 F.2d  at 618 (1st
Cir. 1987)(jeopardy did not attach when court accepted guilty plea to a
lesser-included offense, then rejected the plea without having imposed
sentence and entered judgment).  Cf. Ricketts v. Adamson, 483 U.S. 1, 8
(1987) (Court "assume[s] that jeopardy attached at least when respondent was
sentenced . . . on his guilty plea" (emphasis added)); United State v. Cruz,
709 F.2d 111, 114 ( 1st Cir. 1983)("We agree that jeopardy must attach
somewhere and bar reconsideration at some point, but acceptance of the plea
is not the only possible point.").
     The issue here is not whether defendant was subjected to the kind of
governmental overreaching that the double jeopardy clause was designed to
prevent.  Ohio v. Johnson, 467 U.S. 493, 502 (1984).  Rather, it is a much
narrower and simpler one -- whether the court ought be able to correct a
mistake.  The court's decision not to appoint counsel for defendant was
based on incomplete information.  Defendant, who was in the best position to
know the correct information, participated in this mistake; at arraignment,
defendant told the court he "had a DWI seven years ago," but did not recount
more recent convictions.  No reason appears to justify defendant benefitting
from the mistake.  Therefore, given the false assumptions preceding the
"acceptance" of the plea, the acceptance should have no more legal
significance than the mistake that led to it.  The court simply corrected
the mistake by erasing the plea acceptance and proceeded to treat the case
as it should have been treated from the outset.  Although it would have been
better practice for the court to have made a more thorough inquiry before
determining whether defendant was entitled to appointed counsel, under the
facts presented here jeopardy did not attach.  And, even if we were to
follow a procrustean analysis that jeopardy did attach, it was not
irrevocable.  Santiago Soto, 825 F.2d  at 618; Cruz, 709 F.2d  at 113-14.

                                   III.

     We recognize that heavy caseloads sometimes prevent judges from
acquiring the kind of knowledge that would allow them to make fully informed
decisions about whether a jail sentence will be appropriate.  The best
solution to the problem is not to appoint a public defender in all doubtful
cases.  Judge Wolchik's investigation was perfunctory, but arraignment is a
preliminary stage of the criminal proceeding.  Much information that will be
available at sentencing -- about the crime, about the defendant -- cannot be
known at this stage no matter how diligent and thorough the judge is.  The
courts are overburdened now, but so also are the public defenders.  Dilution
of public defender resources with marginal cases will render the system less
effective in dealing with defendants truly in need of its services.  A
better solution is to encourage more probing by judges and to allow
reasonable room to correct mistakes.

     Affirmed.

                                        FOR THE COURT:


                                        ___________________________________
                                        Associate Justice