State v. Pilette

STATE_V_PILETTE.92-401; 160 Vt. 509; 630 A.2d 1296


 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.


                 Nos. 92-401, 92-422, 92-423, 92-454, 92-556


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Caledonia Circuit

 Raymond Joseph Pilette, Jr.                  May Term, 1993



 David T. Suntag, J.

 Robert Butterfield, Caledonia County Deputy State's Attorney, St. Johnsbury,
   for plaintiff-appellee

 William A. Nelson, Appellate Attorney, Montpelier, for defendants-appellants


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


      DOOLEY, J.   In these five consolidated cases, defendants entered
 conditional pleas of guilty to driving under the influence of intoxicating
 liquor as a third offense.  They appeal on the ground that convictions
 entered on pleas of guilty before July 1, 1991 could not be considered in
 applying the recidivism provisions of the DUI law that became effective on
 that date.  We affirm.
      Effective July 1, 1991, { 1210(d) of Title 23 was amended to provide
 that "[a] person convicted of violating section 1201 of this title
 [operating a vehicle under the influence of intoxicating liquor] who has
 twice been convicted of violation of that section shall be fined not more
 than $2,500.00 or imprisoned not more than five years, or both."  Each of
 
                                

 the defendants has been convicted twice of violating { 1201, and each
 conviction was based on a plea of guilty.  In each of the prior cases, the
 court did not inform defendants that, under the amended statute, the DUI
 convictions could be used to enhance future similar convictions to a felony
 level.  Indeed, the court could not have given defendants such information
 because the penalty enhancement provision for third offenses had not yet
 been passed by the Legislature.  Also, we have no indication as to how
 defendants' counsel may have advised their clients regarding the effect of a
 DUI conviction in relation to future charges; again, counsel could not have
 specifically advised about the current law because it had not yet been
 enacted.
      Defendants contend that application of the recidivism provision of the
 DUI statute to guilty pleas entered prior to the effective date of the new
 law renders those pleas involuntary.  The trial court disagreed, stating
 that prior to accepting a guilty plea a judge need advise a defendant of
 only the direct consequences of the plea to make it voluntary.  It concluded
 that the potential use of a criminal conviction to enhance the sentence of a
 possible future conviction is not a sufficiently direct consequence to
 require specific advice prior to acceptance of a guilty plea.
      A guilty plea is not voluntary unless the defendant knows and
 understands the consequences that attach to the plea.  In re Hall, 143 Vt.
 590, 595, 469 A.2d 756, 758 (1983).  Through our rulemaking power, we have
 set forth the advice the court must give the defendant in Rule 11(c) of the
 Vermont Rules of Criminal Procedure.  The rule requires that the court
 inform the defendant of certain consequences of conviction and determine
 that the defendant understands those consequences.  Specifically, the court
 
                                         

 must inform the defendant of "the maximum possible penalty provided by law
 for the offense to which the plea is offered," any mandatory minimum
 sentence, and the fact that the court can order restitution if appropriate.
 V.R.Cr.P. 11(c)(2).  Nowhere does the rule require that a defendant be
 informed of the consequences of recidivism.  Thus, even after the passage of
 the penalty enhancement provision for third convictions, there is no
 requirement that the court inform a defendant of the third-offense provision
 when taking a plea to a first or second offense.
      In In re Moulton, ___ Vt. ___, ___, 613 A.2d 705, 707 (1992), we
 recently ruled that defense counsel has no obligation to inform a defendant
 of any  consequences of a plea of guilty that are not spelled out in
 Criminal Rule 11(c).  The decision was based on this Court's prior
 determination, reached in the course of adopting the rule, that the specific
 information enumerated in the rule is all that is necessary to comply with
 due process of law.  Certainly, if counsel has no obligation to go beyond
 the specifics of Rule 11(c), the court has no such obligation.
      Although we would end this opinion here, defendants strenuously argue
 that the court must determine that the plea is voluntary, V.R.Cr.P. 11(d),
 and cannot do so unless the record shows that "the defendant knows and
 understands the full array of legal consequences that attach to a guilty
 plea."  In re Hall, 143 Vt. at 595, 469 A.2d  at 758.  We do not believe that
 the general standard of Rule 11(d), as explained in Hall, is intended to
 create new general disclosure requirements not contained in the itemized
 list in Rule 11(c).  In fact, we have held that technical compliance with
 Rule 11(c) is not required to make a plea voluntary, id. at 596, 469 A.2d  at
 759, which compels the conclusion that the requirements of Rule 11(c) go
 
                                

 beyond that necessary for a voluntary plea.  The result sought by
 defendants would undercut the precision and certainty intended by Rule
 11(c).
      Even if we were to create general disclosure requirements to ensure the
 voluntariness of a plea, we do not agree that we should require trial courts
 to explain the consequence of recidivism.   In Moulton, we held that only
 direct, not collateral, consequences must be included in the Rule 11
 colloquy, and that the availability of parole before expiration of sentence
 is a collateral consequence.  ___ Vt. at ___, 613 A.2d  at 708.  We conclude
 that the potential enhancement of the status or sentence of a future
 conviction as a result of a previous guilty plea is similarly a collateral
 consideration.  As a general rule, a defendant can expect that subsequent,
 identical criminal violations will lead to more severe punishment, whether
 or not a statute requires such enhancement.  The court does not have to
 explain the consequences of future offenses or the effect of a plea of
 guilty on those consequences.  Courts in other jurisdictions have arrived at
 the same result.  State v. Hatch, 754 P.2d 324, 326 (Ariz. Ct. App. 1988)
 (plea-taking court not required to advise defendant of every conceivable
 consequence or collateral effect of pleading guilty in DUI offense); State
 v. Levey, 445 A.2d 1089, 1090 (N.H. 1982) (court in DUI case not obligated
 to inform defendant of all future effects of guilty plea); see also United
 States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989) (plea-accepting court not
 obligated to anticipate defendant's recidivism).
      Finally, we find it generally inappropriate to create disclosure
 requirements that cannot be met.  It will not improve the fairness of plea
 procedures if the trial court engages in speculative predictions about what
 
                               

 penalties might be enacted for future crimes a defendant might commit.  If
 we are going to rule that convictions that occur prior to the effective date
 of an enhancement statute cannot be considered for enhancement purposes, we
 should do that directly, rather than through a fiction that the court failed
 to tell defendant about a law that did not exist.  We do not believe
 enhancement in these circumstances is unfair; defendants produced the
 enhanced sentences by criminal conduct after the enhancement law became
 effective.
      Affirmed.
                                         FOR THE COURT:




                                         Associate Justice