State v. Whitney

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-560

                            JANUARY TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Addison Circuit
                                  }
Earl R. Whitney                   }
                                  }          DOCKET NO. 428-6-89Acr


             In the above entitled cause the Clerk will enter:


     Defendant's motion to reargue under V.R.A.P. 40 is denied.  The motion
does not state points of law or fact, overlooked or misapprehended by the
Court, which would affect the result.  We have, however, recalled and
revised the opinion to reflect our consideration of defendant's federal
constitutional claims.

     Motion for reargument is denied.







                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice

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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. 89-560


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Addison Circuit

Earl R. Whitney                              January Term, 1991


Linda Levitt, J.

John T. Quinn, Addison County State's Attorney, Middlebury, for plaintiff-
  appellee

Margaret A. O'Rourke, Bonnie Barnes and Lauren Mickey, Law Clerk (On the
  Brief), of Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury, for
  defendant-appellant


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


     ALLEN, C.J.   Defendant appeals the sentence imposed on his conviction
for driving under the influence of intoxicating liquor.  We affirm.
     At sentencing the court granted defendant's motion to strike a 1974 DUI
conviction, but refused to strike a 1985 DUI conviction.  Defendant claimed
that the 1985 conviction, based on a guilty plea entered while defendant was
represented by counsel, was invalid under V.R.Cr.P. 11(f).  Defendant
argued that the court in that proceeding had not shown that it was
satisfied that there was a "factual basis for the plea," as required by the
Rule, and had not shown that the elements of the offense were explained to
defendant, with the result that the State could not demonstrate the
voluntariness of the plea.  See In re Dunham, 144 Vt. 444, 448-49, 479 A.2d 144, 147 (1984).
     As a threshold matter, defendant offers no authority for the
proposition that a prior DUI conviction, obtained in a proceeding in which
defendant was represented by counsel and which was not subsequently
appealed, must be disregarded in a sentencing hearing in a subsequent
proceeding because of an error of law in the first proceeding.1
     Even if defendant were to overcome that barrier, we do not find
persuasive his contention that Rule 11(f) and the federal constitution were
violated in his 1985 plea.  While it is the better practice for the court,
when considering whether to accept a guilty plea, to explain to the
defendant the elements of the offense and the factual allegations comprising
the offense, see In re Kasper, 145 Vt. 117, 120-21, 483 A.2d 608, 610-611
(1984); Dunham, 144 Vt. at 451, 479 A.2d  at 148, this is not a per se rule.
"The nature of the inquiry required by Rule 11 must necessarily vary from
case to case, and, therefore, we do not establish any general guidelines
other than those expressed in the Rule itself. . . .  In all such inquiries,
'[m]atters of reality, and not mere ritual, should be controlling.'"
McCarthy v. United States, 394 U.S. 459, 467 n.20 (1969) (quoting Kennedy v.
United States, 397 F.2d 16, 17 (6th Cir. 1968)).  For the Rule 11(f)
inquiry, "no mechanical rules can be stated, and the more complex or
doubtful the situation . . ., the more searching will be the inquiry
dictated by a sound judgment and discretion."  United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979).  Cf. State v. Gabert, 152 Vt. 83, 88-90, 564 A.2d 1356, 1359-60 (1989) (rejecting defendant's claim that, because an
implied element of the offense was not explained to him, the court failed to
determine that defendant understood the nature of the charge; facts of case
conclusively established the implied element).
     The elements of this offense were readily understandable.  Defendant
was clearly informed at the 1985 plea hearing that he was charged with DUI.
At that time defendant was not a stranger to the DUI law.  It was his third
conviction.  The court satisfied itself that there was a factual basis for
the plea by examining the affidavit of the arresting officer, which the
record indicates was supplied to defendant.  We hold on these facts that
Rule 11(f), and the constitutionally required determination of voluntariness
which the Rule 11(f) inquiry is meant to address, were satisfied.  See
Swensen v. Municipality of Anchorage, 616 P.2d 874, 880-81 (Alaska 1980)
(Alaska Rule 11(f) satisfied by reading of drunk driving charge and
subsequent plea).
     Affirmed.

                                        FOR THE COURT:




                                        Chief Justice

FN1.    In Burgett v. Texas, 389 U.S. 109 (1967), and United States v.
Tucker, 404 U.S. 443 (1972), the Supreme Court held that a court cannot
consider previous uncounseled felony convictions when imposing sentence.
Some states have applied the principle to cases raising the issue of
enhanced DUI convictions for cases involving noncustodial sentences.  See,
e.g., State v. Dowd, 478 A.2d 671, 676-78 (Me. 1984).  Tucker has also been
construed by some courts to apply to constitutional deprivations beyond the
Sixth Amendment right to counsel, including voluntariness of a plea.  United
States v. Johnson, 612 F.2d 305, 307 (7th Cir. 1980).  See generally Leake,
Limits to the Collateral Use of Invalid Prior Convictions to Enhance
Punishment for a Subsequent Offense:  Extending Burgett v. Texas and United
States v. Tucker, 19 Col. Hum. Rts. L. Rev. 123, 142-45 (1987) (discussing
United States ex rel. Stubbs v. Mancusi, 442 F.2d 561, 562 (2d Cir. 1971)
(Sixth Amendment right to confrontation); Beto v. Stacks, 408 F.2d 313, 316-
17 (5th Cir. 1969) (unlawful search and seizure)).  We need not reach that
issue in the present case.