State v. LaFountain

STATE_V_LAFOUNTAIN.92-574; 160 Vt. 313; 628 A.2d 1243


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-574


 State of Vermont                             Supreme Court

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

 Christopher J. Lafountain, et al.            December Term, 1992



 George T. Costes, J.

 Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
    Deputy State's Attorney, Burlington, and Gary Kessler, Supervising
    Appellate Prosecutor, and Peter L. Potts, Legal Intern, Montpelier, for
    plaintiff-appellee

 E.M. Allen, Defender General, and William Nelson, Appellate Attorney,
 Montpelier, for defendant-appellant


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


      ALLEN, C.J.    Defendant Lafountain brings this interlocutory appeal
 from an order denying his motion to dismiss a misdemeanor charge of driving
 with a suspended license (DLS) in violation of 23 V.S.A. { 674(b).
 Defendant's primary argument is that the State's use of his two prior
 uncounseled civil violations to enhance the penalty for a third charge
 violates his constitutional rights to counsel and due process.  Defendant
 also challenges the sufficiency of the information, the nature of proof
 required by { 674, and the non-bifurcated trial below.  We affirm.
      Prior to the charge at issue, defendant was twice found to have
 committed DLS violations under 23 V.S.A. { 676.  On June 3, 1992, defendant
 was charged with violating { 676 for the third time, which constitutes a
 criminal misdemeanor offense under 23 V.S.A. { 674.
      The only sanction for a first or second { 676 DLS violation is a civil
 penalty, carrying a maximum fine of $175.00.  23 V.S.A. { 2302 (c).  For
 further violations, however, 23 V.S.A. { 674(b) provides that "[a] person
 who violates section 676 of this title for the third or subsequent time
 shall be subject to the penalties set forth in subsection (a) of this
 section."  The penalty for violation of { 674 is imprisonment for not more
 than two years, with a mandatory minimum of two consecutive days to serve
 that may not be suspended or deferred, or a fine of not more than $5,000.00,
 or both.  23 V.S.A. { 674 (a).
      Defendant's primary contention is that { 674(b) violates his rights to
 counsel and due process.  Even though he was not entitled to counsel in his
 civil proceedings, see State v. O'Brien, ___ Vt. ___, ___, 609 A.2d 981,
 982 (1992) (license suspension proceeding under 23 V.S.A. { 1205 is not
 criminal, and therefore does not mandate a jury trial, appointed counsel,
 protection against self-incrimination, proof beyond a reasonable doubt or
 confrontation as protected by the Sixth Amendment);  Shaw v. Vermont
 District Court, 152 Vt. 1, 6-7, 563 A.2d 636, 639-640 (1989) (because
 summary suspension hearing is civil proceeding, not criminal, right under
 Vermont Constitution to trial by jury does not apply), defendant claims
 that the prior uncounseled violations cannot be used to enhance his penalty
 for the current violation.  He argues that the trial court erroneously based
 its decision on Lewis v. United States, 445 U.S. 55 (1980).  In Lewis, the
 United States Supreme Court held that a defendant's prior uncounseled felony
 conviction may support a subsequent conviction under a federal firearms
 statute, regardless of whether the prior conviction was valid.  Id. at 56.
 Lewis is distinguishable from the case at bar because the Court in Lewis
 concluded that the statute did not function to enhance the penalty based on
 prior convictions, but rather prohibited felons from possessing firearms.
 Thus, in Lewis the prior convictions were used to identify a class of
 potentially dangerous persons, not to enhance the penalty for a subsequent
 offense.  In the case at bar, however, { 674 mandates penalty enhancement.
 Prior violations under { 676 are used to enhance the penalty for subsequent
 prosecutions of the same type of conduct.  Accordingly, we agree that Lewis
 does not control the outcome of this case.
      This Court is not bound by the legal reasoning of the trial court.  See
 Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990)
 (trial court's order affirmed on different legal grounds).  We hold that
 Baldasar v. Illinois, 446 U.S. 222 (1980), rather than Lewis, supports the
 trial court's order.
      In Baldasar, the petitioner, who had a prior uncounseled misdemeanor
 theft conviction, was convicted, for the second time, of theft of property.
 Under the applicable state law, the second misdemeanor was treated as a
 felony.  The Court, although divided, concluded that the prior uncounseled
 misdemeanor conviction, which was punishable by more than six months of
 prison, could not be used under a penalty enhancement statute to convert a
 subsequent misdemeanor into a felony.  Id. at 223-224.
      Accompanying the per curiam opinion in Baldasar are two concurrences
 and one dissent.  In two separate opinions, four justices were of the
 opinion that prior uncounseled convictions could never be used to enhance
 the grading and sentencing of a second offense.  Id. at 224 (Stewart, J.,
 concurring) (joined by Justices Brennan and Stevens); id. at 225-26
 (Marshall, J., concurring) (joined by Justices Brennan and Stevens).
 Another four justices were of the opinion that a prior uncounseled
 conviction for which no sentence of imprisonment was imposed may always be
 used to enhance the grading and sentencing of a subsequent conviction.  Id.
 at 233 (Powell, J., dissenting) (joined by Chief Justice Burger, Justices
 White and Rehnquist).  Finally, one justice wrote that an uncounseled
 conviction may not be used to enhance the grading and sentencing of a
 subsequent offense if the first offense was one which was punishable by more
 than six months imprisonment or for which the defendant was actually
 sentenced to a term of imprisonment.  Id. at 229 (Blackmun, J., concurring).
 Justice Blackmun's opinion gives us the narrowest rule.  Thus, under the
 narrowest interpretation of the Baldasar plurality, see Marks v. United
 States, 430 U.S. 188, 193 (1977) (mandating that plurality opinions be
 interpreted on the "narrowest grounds" possible), defendant's prior
 uncounseled { 676 civil DLS violations may be used to enhance grading and
 sentencing for his most recent offense under { 674.  Other jurisdictions
 have derived the same rule from Baldasar.  See Bilbrey v. State, 531 So. 2d 27, 32 (Ala. Crim. App. 1987);  State v. Orr, 375 N.W.2d 171, 176 (N.D.
 1985);  State v. Chance, 405 S.E.2d 375, 376 (S.C. 1991).
      Since Baldasar, the Court has further explained its position on
 recidivism statutes.  In Parke v. Raley, 113 S. Ct. 517, 521 (1992), the
 Court stated that "[s]tatutes that punish recidivists more severely than
 first offenders have a long tradition in this country that dates back to
 colonial times."  Parke involved a constitutional challenge to a burden-
 shifting provision of a Kentucky penalty enhancement statute.  Although
 states do not have unlimited scope in defining enhancement penalties within
 recidivism statutes, the Court has repeatedly upheld recidivism statutes
 "against contentions that they violate constitutional strictures dealing
 with double jeopardy, ex post facto laws, cruel and unusual punishment, due
 process, equal protection, and privileges and immunities."  Id. at 522.  The
 Court noted with approval Justice Harlan's statement that "'tolerance for a
 spectrum of state procedures dealing with [recidivism] is especially
 appropriate' given the high rate of recidivism and the diversity of
 approaches that the States have developed for addressing it."  Id. (quoting
 Spencer v. Texas, 385 U.S. 554, 560 (1967)).  The Court concluded that the
 Kentucky recidivist statute "easily" satisfied constitutional muster.  Id.
      Although the United States Supreme Court was addressing the narrow
 question of whether a specific criminal procedure in an enhancement statute
 was constitutional, the principles stated in Parke are applicable to the
 present case.  Parke endorses tolerance of the state legislature's attempts
 to address the problem of recidivism.  Vermont has recently attempted to
 handle repeat DLS offenders by creating a recidivism statute,  placing
 three-time offenders in a separate category from first- and second-time
 offenders.  Three-time offenders are subject to criminal sanctions that are
 predicated on the previous civil violations.  Defendant's due process
 challenge cannot stand in the face of the Parke decision.
      Defendant also contends that the information fails to charge any crime
 because defendant's repeat-offender status was not fully pled and should be
 dismissed on that basis.  We reject this argument.  The information cited
 the statute defendant was accused of violating, the dates of his two
 previous civil DLS violations, and the penalty for the present offense.
 This was sufficient to apprise defendant that the { 674 charge stemmed from
 his prior { 676 violations.  See State v. Brown, 153 Vt. 263, 271-273, 571 A.2d 643, 648-49 (1989) (Court favored common sense approach to
 constitutional sufficiency of an information).
      Next, defendant challenges the nature of the proof required by { 674.
 He contends that the statute requires that the State prove the prior civil
 violations at the { 674 criminal trial.  The text provides that "[a] person
 who violates section 676 of this title for the third . . . time shall be
 subject to penalties set forth in subsection (a) of this section."  23
 V.S.A. { 674(b).  Defendant argues that by using the term "violates" in {
 674(b) instead of "has been convicted," the Legislature intended that the
 State prove each of defendant's two previous civil violations rather than
 merely rely on the existence of previous violations.  We disagree.  The text
 does not require that the State prove each previous civil violation.  If the
 Legislature had wanted the State to prove the prior violations in the
 criminal prosecution, it could have easily so specified.
      Finally, defendant incorrectly insists that State v. Cameron, 126 Vt.
 244, 227 A.2d 276 (1967) mandates a bifurcated trial here.   Cameron was
 limited to requiring a bifurcated trial where the record itself was
 questioned, not the merits of the previous convictions.  Id. at 249, 227 A.2d  at 279.  Cameron is inapplicable in the present case because defendant
 wishes to challenge the merits of the prior convictions, not merely the
 record.  We conclude that the proof of prior violations is sufficient in a {
 674(b) prosecution.
      Affirmed.
                                    FOR THE COURT:

                                    ____________________________________
                                    Chief Justice