State v. DeRosa

STATE_V_DEROSA.92-306; 161 Vt. 78 ; 633 A.2d 277

[Filed 08-Oct-1993]

 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. 92-306


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Bennington Circuit
 Robin J. DeRosa
                                              March Term, 1993


 Theodore S. Mandeville, Jr., J.


 Jonathan Cohen, Bennington County Deputy State's Attorney, Bennington, for
    plaintiff-appellee

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


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



      JOHNSON, J.   Defendant Robin DeRosa appeals the trial court's denial
 of her motion to correct a sentence imposed by the Bennington District Court
 in April 1991.  Defendant, a needy person, claims that the imposition of a
 sentence of imprisonment, suspended, and probation, after she was denied
 assistance of counsel, violated her rights under the Sixth and Fourteenth
 Amendments to the United States Constitution, Chapter I, Article 10 of the
 Vermont Constitution, and the Vermont Public Defender Act, 13 V.S.A. {{
 5201-5277.  We reverse and remand.
      Defendant was arraigned on an information charging her with driving
 under the influence of intoxicating liquor (DUI), first offense.  23 V.S.A.

 

 { 1201(a)(2).  At the time, this offense was punishable by a fine of up to
 $750, imprisonment up to one year, or both.(FN1) 23 V.S.A. { 1210(b) (1991).
 At the arraignment, the trial court found defendant to be a needy person,
 but denied her counsel on the ground that the court would not sentence her
 to a period of imprisonment or a fine of over $1,000.  Subsequently,
 defendant waived counsel on the record (FN2) and entered a plea of nolo
 contendere.  The court accepted her plea and sentenced her to pay a $508
 fine and to serve a term of imprisonment of zero to three months, suspended,
 and probation until further order of the court.
      In October 1991, defendant allegedly violated the terms of her
 probation and was brought before the court.  She waived counsel and was
 found in violation of the conditions of her probation, but her term of
 probation was continued.  In January 1992, defendant was arraigned on a
 subsequent violation of her probation; she requested and was assigned public
 counsel.  Defendant's counsel filed a motion to strike defendant's original
 sentence on the ground that the court had lacked the authority to impose a
 suspended prison sentence and probation after denying defendant counsel.
 The trial court denied the motion, and defendant now appeals.
      We first consider defendant's argument that her sentence violated the
 Vermont Public Defender Act (PDA), 13 V.S.A. {{ 5201-5277.  Section 5231(1)
 of the PDA provides, in relevant part, that "[a] needy person . . . who is
        
 

 charged with having committed . . . a serious crime, is entitled . . . [t]o
 be represented by an attorney to the same extent as a person having his own
 counsel."  A "serious crime" includes a misdemeanor, "the maximum penalty
 for which is a fine of more than $1,000.00 or any period of imprisonment."
 13 V.S.A. { 5201(4)(B).  The statute provides an exception, however, if "the
 judge, at the arraignment but before the entry of a plea, determines and
 states on the record that he will not sentence the defendant to a fine of
 more than $1,000.00 or a period of imprisonment if the defendant is
 convicted of the misdemeanor."  Id. (emphasis added).
      In the case at bar, the trial judge denied defendant counsel pursuant
 to the exception in 13 V.S.A. { 5201(4)(B).  Upon defendant's uncounseled
 guilty plea, the trial court sentenced her to a period of imprisonment from
 zero to three months, suspended, and placed her on probation "until further
 order of the Court."  The issue we must decide is whether the trial court's
 imposition of a suspended sentence of imprisonment and probation violated
 the trial court's representation pursuant to 13 V.S.A. { 5201(4)(B) that it
 would "not sentence the defendant to . . . a period of imprisonment" if she
 were convicted.
      The overriding objective of statutory construction is to ascertain the
 intent of the Legislature.  State v. Wilcox, __ Vt. __, __, 628 A.2d 924,
 926 (1993).  Where the meaning of a statute is plain on its face, the
 statute must be enforced according to its express terms.  Id.  In such
 cases, statutory language is to be accorded its plain, ordinary meaning,
 State v. Yudichak, 147 Vt. 418, 420, 519 A.2d 1150, 1151 (1986), because we
 presume the Legislature used the language advisedly.  State v. Camolli, 156
 Vt. 208, 213, 591 A.2d 53, 56 (1991).

         

      The Public Defender Act expressly requires appointment of counsel for
 an indigent defendant charged with a serious crime, 13 V.S.A. { 5231(1),
 unless the sentencing judge determines "that he will not sentence the
 defendant to . . . a period of imprisonment."  13 V.S.A. { 5201(4)(B).  The
 State argues that defendant's sentence was proper under { 5201(4)(B) because
 defendant was not actually imprisoned, and probation is not penal in nature.
      Both of the State's arguments ignore the fact that the trial judge
 actually sentenced defendant to a period of imprisonment, albeit suspended.
 By its plain language, { 5201(4)(B) applies any time a defendant is
 sentenced to a period of imprisonment.  Under Vermont law, a judge may
 impose probation only "[a]fter passing sentence" on a defendant and
 suspending all or part of that sentence.  28 V.S.A. { 205.  But suspension
 of a sentence of imprisonment does not negate the imposition of the
 sentence.  Moreover, when, as here, the sentence is suspended in
 conjunction with probation, the suspension is merely conditional.
 Therefore, we hold that when a trial judge denies counsel to a needy person
 by determining that defendant will not be sentenced to a period of
 imprisonment, the trial judge may not then impose on defendant a
 conditionally suspended sentence and probation.
      Because we agree that the trial court violated the Vermont Public
 Defender Act, we need not reach the federal or state constitutional questions
 raised by defendant.  It should be noted, however, that the PDA codifies an
 indigent criminal defendant's constitutional right to assistance of counsel,
 guaranteed under the Sixth and Fourteenth Amendments to the United States
 Constitution.  State v. Duval, 156 Vt. 122, 124, 589 A.2d 321, 323 (1991).

 

 Our interpretation of the PDA is in accord with federal precedent defining a
 defendant's federal constitutional right to assistance of counsel.
      In Scott v. Illinois, 440 U.S. 367 (1979), the United States Supreme
 Court held that "no indigent criminal [can] be sentenced to a term of
 imprisonment unless the State has afforded him the right to assistance of
 appointed counsel in his defense."  Id. at 374 (emphasis added).  Under
 Scott, a needy defendant is not constitutionally entitled to counsel where
 the authorized punishment for the crime charged includes the threat of
 imprisonment, but a sentence of imprisonment is not actually imposed.  Id.
 at 373.  When Scott drew the line at "actual imprisonment," it did so to
 distinguish two other possible scenarios -- when defendant's sentence is a
 monetary fine and when defendant is charged with an offense for which
 imprisonment is authorized.  Id. at 373.
      Though Scott did not rule on whether a suspended sentence and probation
 without counsel violated the Sixth Amendment, there is federal authority on
 the issue.  In United States v. Reilley, 948 F.2d 648 (10th Cir. 1991), the
 court, relying on Scott, struck down a defendant's suspended prison
 sentence, reasoning that "the constitutional right to counsel limits not the
 trial itself, but rather the sentence that may be imposed.  By denying [a]
 defendant counsel, the court effectively waives the right to sentence him to
 prison."  Id. at 654.  At least two other federal courts of appeal have held
 that where a needy defendant is denied trial counsel, imprisonment cannot be
 imposed upon defendant upon revocation of probation.  See United States v.
 Foster, 904 F.2d 20, 21-22 (9th Cir. 1990); United States v. Sultani, 704 F.2d 132, 133-34 (4th Cir. 1983) (per curiam).

 

      The trial court did not find the reasoning of the federal courts of
 appeal persuasive and instead followed United States v. Nash, 703 F. Supp. 507 (W.D. La.), aff'd, 886 F.2d 1312 (5th Cir. 1989).  The Nash court imposed
 a sentence of imprisonment on a defendant, who was convicted on the
 underlying charge without the benefit of counsel, for violation of probation.
 Id. at 510.  The court reasoned that Scott's "actual imprisonment" line is not
 crossed when a court imposes a conditionally suspended prison sentence on an
 uncounseled defendant.  Id. at 510.  It then concluded that because Nash was
 being sentenced to prison for his failure to follow conditions of probation,
 not for the underlying charge, Scott was not violated.  Id.
      Nash is neither factually apposite nor legally persuasive.  It is not
 factually apposite because under Vermont law, a court's decision to revoke
 probation and impose the suspended sentence must be grounded "on the basis
 of the original offense and the intervening conduct of the probationer."  28
 V.S.A. { 303(b) (emphasis added).  It is not legally persuasive because the
 rationale of the right to counsel cases is to avoid the end result of
 incarcerating uncounseled defendants.  Argersinger v. Hamlin, 407 U.S. 25,
 36-37 (1972); see also Duval, 156 Vt. at 125, 589 A.2d  at 323 (1991) (when
 denying a needy defendant counsel pursuant to 13 V.S.A. { 5201(4)(B), "the
 judge [makes] a conditional promise that defendant [will] not be
 incarcerated without benefit of assigned counsel").  If we allow a court to
 incarcerate a defendant on the basis of an underlying, uncounseled
 conviction by revoking probation, then we allow it to achieve the forbidden
 end result of incarcerating uncounseled defendants.
      Because we hold that the Vermont Public Defender Act was violated, we
 must determine the remedy to which defendant is entitled.  The PDA
 authorized the trial judge's decision to deny defendant counsel on the basis

 

 that he would not sentence defendant to a period of imprisonment if she were
 convicted; the error below was only in the sentence.  The proper remedy is
 to strike the offending portion of defendant's sentence.
      This remedy is not inconsistent with our holding in State v. Duval,
 156 Vt. 122, 589 A.2d 321 (1991).  In Duval, after denying a needy
 defendant counsel upon the representation that he would not be sentenced to
 a period of imprisonment upon conviction, the trial judge realized, before
 sentencing, that incarceration might be an appropriate disposition.  Id. at
 123-24, 589 A.2d  at 322-23.  The judge then assigned defendant counsel and
 offered defendant the opportunity to withdraw his guilty plea; defendant did
 not withdraw his plea and the judge sentenced him to a period of
 imprisonment.  Id. at 124, 589 A.2d 322-23.  The trial judge represented to
 Duval that he would not be sentenced to a period of imprisonment without the
 benefit of assigned counsel and the judge acted in accordance with that
 representation.  In the case at bar, the trial judge made the same
 representation to defendant as was made to Duval, but did sentence her to a
 period of imprisonment, contrary to his representation and the PDA.  An
 opportunity for defendant to withdraw her guilty plea and face trial after
 her sentence commenced would not adequately remedy the error below.
      Reversed.  Defendant's sentence is vacated, except for that portion of
 the sentence that imposed a fine.

                                    FOR THE COURT:



                                    ________________________________
                                    Associate Justice

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                               Footnotes


FN1.      The Legislature raised the maximum sentence to two years,
 effective July 1, 1991.  1991, No. 55, { 9.

FN2.      Although the parties have not raised the issue on appeal, we note
 that a waiver of counsel "made . . . only after the court ha[s] denied
 [defendant's] request for a lawyer a short while earlier" is not an
 effective waiver of the right to counsel.  State v. Quintin, 143 Vt. 40, 43,
 460 A.2d 458, 460 (1983).