State v. Porter
Annotate this Case
STATE_V_PORTER.94-215; 164 Vt 515; 671 A.2d 1280
[Filed 05-Jan-1996]
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. 94-215
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont
Unit No. 2, Addison Circuit
Donald L. Porter September Term, 1995
Edward J. Cashman, J.
Robert L. Sand, Department of State's Attorneys, Montpelier, for
plaintiff-appellee
Robert Appel, Defender General, and William A. Nelson, Appellate
Defender, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
GIBSON, J. Defendant Donald L. Porter appeals the imposition of a
felony sentence following his conviction for driving under the influence of
intoxicating liquor (DUI), third offense. 23 V.S.A. § 1210(d). Defendant
argues that the use of a prior, uncounseled DUI conviction to support a
felony third-offense sentence violates his federal and state constitutional
rights to counsel and is barred by our decision in State v. Lafountain, 160
Vt. 313, 316, 628 A.2d 1243, 1245 (1993). Because we decide today that the
recent decision of the United States Supreme Court in Nichols v. United
States, 114 S. Ct. 1921, 1927-28 (1994), comports with the protections
afforded under the Vermont Constitution, we affirm.
On September 15, 1993, the Addison County state's attorney charged
defendant with DUI. Because defendant had previously been convicted of DUI
in 1983 and 1984, he faced a maximum penalty of five years in prison and a
fine of not more than $2,500 if convicted of a third DUI offense. 23
V.S.A. §§ 1201(a)(2) & 1210(d). Defendant moved to dismiss the
felony-enhancement portion of the DUI charge on the ground that his 1983
conviction had been
uncounseled,(FN1) so that a felony sentence for a third offense would run
afoul of this Court's holding in Lafountain, 160 Vt. at 316, 628 A.2d at
1245-46. The district court denied the motion to dismiss. Defendant
thereupon entered a conditional guilty plea to pursue the instant appeal.
The district court sentenced defendant to a minimum of 120 days and a
maximum of two years in prison, all suspended except 120 days.
In Lafountain, we adopted the standard, articulated by Justice
Blackmun in his concurrence in Baldasar v. Illinois, 446 U.S. 222, 229
(1980) (Blackmun, J., concurring), 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." 160 Vt. at 316, 628 A.2d at 1245. We recognized in
Lafountain that Baldasar was a per curiam decision of a divided court in
which no clear majority opinion had emerged. Id. Juridical rules
therefore mandated that we interpret Baldasar "on the `narrowest grounds'
possible," id. (quoting Marks v. United States, 430 U.S. 188, 193 (1977)),
which we determined to be the standard articulated in Justice Blackmun's
concurrence. Id.
Lafountain involved a sentence enhancement for third-offense driving
with license suspended, 23 V.S.A. § 674(b), in which the first offense is a
civil violation carrying no prison sentence. See 23 V.S.A. § 2302(c).
Consequently, we upheld the defendant's sentence enhancement as not
violative of the rule set forth in Baldasar. Lafountain, 160 Vt. at 317,
628 A.2d at 1246. In the instant case, by contrast, a first-offense DUI
conviction is a criminal offense that, at the time of defendant's 1983
conviction, carried a maximum sentence of one year in prison and a fine of
$500.(FN2) 23 V.S.A. § 1210(a) (1978) (current version at 23 V.S.A. §
1210(b)). Because defendant's uncounseled 1983 DUI conviction was
punishable by more than six months imprisonment, defendant urges us to
reverse his felony sentence as violative of the standard announced in
Baldasar and adopted by this Court in Lafountain.
Last year, however, the United States Supreme Court overruled
Baldasar. Nichols v. United States, 114 S. Ct. at 1928. In Nichols, the
Court reaffirmed its earlier holding in Scott v. Illinois, 440 U.S. 367,
373 (1967), that the Sixth Amendment right to counsel attaches only "so
long as no imprisonment [i]s actually imposed," 114 S. Ct. at 1927; it also
expressly endorsed the reasoning of the dissent in Baldasar by holding
"that an uncounseled conviction valid under Scott may be relied upon to
enhance the sentence for a subsequent offense, even though that sentence
entails imprisonment." Id. The Court reasoned that sentence-enhancement
statutes do not alter the penalty imposed for the earlier conviction, but
rather "`penaliz[e] only the last offense committed by the defendant.'"
Id. (quoting Baldasar, 446 U.S. at 232) (Powell, J., dissenting).
In the instant matter, defendant was sentenced to pay a $160 fine
following his 1983 uncounseled DUI conviction. Because the 1983 conviction
was thus valid under Scott, the use of that conviction to enhance the
sentence for the instant offense does not violate defendant's federal
constitutional rights, as articulated in Nichols.
Defendant contends, however, that the Vermont Constitution, Chapter I,
Article 10,(FN3) provides greater protection than the analogous provisions of
the United States Constitution, and that the reasoning of Nichols does not
comport with defendant's state constitutional rights.
We have long recognized that, "as final interpreter of the Vermont
Constitution, this Court has final say on what process is due in any given
situation." State v. Brunelle, 148 Vt. 347, 350, 534 A.2d 198, 201 (1987).
Nevertheless, "[d]efendant bears the burden of providing an explanation of
how or why the Vermont Constitution provides greater protection than the
federal constitution." State v. Zumbo, 157 Vt. 589, 592, 601 A.2d 986, 988
(1991). Although we have on occasion found that the Vermont Constitution
affords greater rights than the federal constitution, see, e.g., Brunelle,
148 Vt. at 353, 534 A.2d at 202-03 (Chapter I, Article 10 bars use of
unlawfully obtained evidence for impeachment purposes), we have
consistently held that the right to representation by counsel found in
Chapter I, Article 10 of the Vermont Constitution confers a right similar
to the federal Sixth Amendment right. Id. at 352, 534 A.2d at 202; State
v. Rushford, 127 Vt. 105, 108-09, 241 A.2d 306, 308-09 (1968); In re Moses,
122 Vt. 36, 41-42, 163 A.2d 868, 872 (1960), overruled on other grounds by
In re Dobson, 125 Vt. 165, 168, 212 A.2d 620, 622 (1965).
Defendant argues that, because we grounded our decision in Lafountain
solely on the federal constitution and did not reach the defendant's state
constitutional claim, we need not give Baldasar the same interpretation
under the state constitution as we did in Lafountain. Rather than relying
on the Blackmun concurrence in Baldasar to define the limits of the Vermont
Constitution, defendant urges us to adopt, for state constitutional
purposes, the four-justice plurality in Baldasar. The Baldasar plurality
found that the use of a prior, uncounseled conviction to enhance the
defendant's sentence for a subsequent conviction violated the defendant's
Sixth Amendment right by imposing a prison sentence for the prior,
uncounseled conviction. See Baldasar, 446 U.S. at 224 (Stewart, J.,
concurring) ("petitioner . . . was sentenced to an increased term of
imprisonment only because he had been convicted in a previous prosecution
in which he had not had the assistance of appointed counsel"); id. at 227
(Marshall, J., concurring) ("Solely because of the previous conviction the
second offense was transformed from a misdemeanor into a felony . . . .").
In Lafountain, however, we quoted with approval the language of the
United States Supreme Court's decision in Parke v. Raley, 506 U.S. 20, __
(1992), concerning recidivism statutes, and acknowledged the Vermont
Legislature's efforts to handle the increasing numbers of repeat offenders
by means of recidivism statutes. 160 Vt. at 317, 628 A.2d at 1246. We
later expressly recognized that 23 V.S.A. § 1210(d), which imposes a felony
sentence for a third
DUI conviction, is a recidivism statute. State v. Tatro, 161 Vt. 182, 186,
635 A.2d 1204, 1207 (1993). As the United States Supreme Court explained
in Nichols:
Enhancement statutes, whether in the nature of criminal history
provisions such as those contained in the [Federal] Sentencing
Guidelines, or recidivist statutes which are common place [sic] in state
criminal laws, do not change the penalty imposed for the earlier
conviction. As pointed out in the dissenting opinion in Baldasar,
"[t]his Court consistently has sustained repeat-offender laws as
penalizing only the last offense committed by the defendant."
114 S. Ct at 1927 (quoting Baldasar, 446 U.S. at 232)(Powell, J., dissenting).
We believe the reasoning of Nichols is consistent with our analysis in
Lafountain and Tatro, and we see no reason to reach a different conclusion
under the Vermont Constitution. The Legislature has seen fit to address the
problem of repeat drunk-driving by enacting a recidivism statute that
imposes enhanced penalties for each subsequent offense. The increased
penalty for a subsequent offense does not repunish a defendant for the
first offense, but rather punishes with greater severity the last offense
committed by the defendant.
Defendant argues, however, that Nichols is distinguishable from the
present case on two grounds. First, the prior convictions in Nichols were
introduced only at the sentencing phase, where "the state need prove such
conduct only by a preponderance of the evidence," 114 S. Ct. at 1928; in
contrast, defendant argues, this Court requires the State to allege the
existence of one or more prior convictions as an essential element of a
repeat-offender DUI charge, and to prove the allegation beyond a reasonable
doubt. State v. Cameron, 126 Vt. 244, 249-50, 227 A.2d 276, 279-80 (1967).
We believe defendant reads too much into this distinction. Although we
require the State to allege prior convictions as an element of the
repeat-offender charge, we nevertheless held in Cameron that "[t]he fact of
a prior conviction or convictions does not become material until after the
conviction of the accused on the substantive offense on trial is
established, and then only for the purpose of enabling the trial judge to
impose the proper sentence." Id. at 249, 227 A.2d at 280 (citation
omitted) (emphasis added). We later made clear that Cameron requires a
bifurcated trial only where a defendant wishes to challenge the fact of a
prior conviction in the record and not the merits of such a conviction.
Lafountain, 160 Vt.
at 318, 628 A.2d at 1246-47. We see little practical difference,
therefore, between the uses of prior convictions in Cameron and in
Nichols.(FN4)
Defendant further contends that Nichols is distinguishable because the
sentence-enhancement in Nichols is "presumptive, not conclusive," 114 S. Ct. at 1930 (Souter, J., concurring), while sentence-enhancement for DUI
purposes is "mandatory and unrebuttable." We find defendant's distinction
unavailing. Defendant asserts that the jury is not at liberty to acquit a
defendant on the ground that the prior convictions were legally invalid.
The bifurcated procedure established in Cameron, however, is expressly
intended to allow a jury to convict or acquit a defendant of the
substantive offense without regard to any prior offenses for which the
defendant was convicted. Cameron, 126 Vt. at 249-50, 227 A.2d at 279-80.
When a defendant is convicted of DUI a third time, the Vermont statute,
unlike the federal sentencing guidelines at issue in Nichols, does not
mandate imposition of a minimum sentence, but instead grants the sentencing
judge wide discretion to fashion an appropriate sentence. See 23 V.S.A. §
1210(d).(FN5) Even if, as defendant suggests, Nichols authorizes
sentence-enhancement only as a discretionary tool, we are not persuaded
that Vermont's DUI sentencing scheme falls short of the mark.
Finally, defendant argues that our decision in State v. DeRosa, 161
Vt. 78, 633 A.2d 277
(1993), supports his claim of broader protections under the Vermont
Constitution. In DeRosa, we vacated a jail sentence imposed for a
violation of probation, where the original probationary sentence was
imposed following an uncounseled conviction. Id. at 83, 633 A.2d at 280.
Defendant contends that our analysis in DeRosa "follows the same line of
reasoning" as that applied by the plurality opinions in Baldasar. DeRosa,
however, did not involve a recidivism statute, but instead rested on the
statute governing revocation of probation, which requires the court to
decide "`on the basis of the original offense and the intervening conduct
of the probationer'" whether confinement is warranted. Id. at 82, 633 A.2d
at 280 (quoting 28 V.S.A. §303(b)). Unlike the statute at issue in DeRosa,
a recidivism statute such as 23 V.S.A. § 1210(d) does not impose punishment
on the basis of the prior offense, but rather punishes only the last
offense committed by the defendant.
In sum, we adopt the reasoning of Nichols v. United States and hold
that an uncounseled conviction that is constitutionally valid under Scott
v. Illinois may be used for sentence-enhancement purposes under a
recidivism statute that imposes a more severe penalty for subsequent
convictions.
Affirmed.
FOR THE COURT:
______________________________________
Associate Justice
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Footnotes
FN1. Because he was represented by counsel for his 1984 conviction,
defendant does not challenge the authority of the trial court to impose an
enhanced sentence for a "second offense" under 23 V.S.A. § 1210(c).
FN2. The offense now carries a maximum penalty of two years in prison
and a fine of $750. 23 V.S.A. § 1210(b).
FN3. That in all prosecutions for criminal offenses, a person hath a
right to be heard by oneself and by counsel; . . . nor can any person be
justly deprived of liberty, except by the laws of the land . . . ." Vt.
Const., ch. I, art. 10.
FN4. Defendant is correct that Cameron requires the State to satisfy
a higher standard of proof with respect to prior convictions than does
Nichols. But defendant does not explain, and we fail to see, how proof
beyond a reasonable doubt, which we required in Cameron, 126 Vt. at 249,
227 A.2d at 279, affords less protection to defendant's due process rights
than does proof by a preponderance of the evidence, as permitted under
Nichols.
FN5. The statute does require a mandatory forty-eight hours in jail
for second-offense DUI. 23 V.S.A. § 1210(c). As noted supra, n. 1,
defendant does not challenge imposition of an enhanced sentence for
second-offense DUI.
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Concurring
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. 94-215
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont
Unit No. 2, Addison Circuit
Donald L. Porter September Term, 1995
Edward J. Cashman, J.
Robert L. Sand, Department of State's Attorneys, Montpelier, for
plaintiff-appellee
Robert Appel, Defender General, and William A. Nelson, Appellate
Defender, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
MORSE, J., concurring. I concur in today's decision, but write
briefly to express my rationale. The Court's analysis rests solely on the
sentence, "The increased penalty for a subsequent offense does not repunish
a defendant for the first offense, but rather punishes with greater
severity the last offense committed by the defendant." That statement, of
course, is true. It begs the question, however, why an uncounseled
conviction may be used as part of the justification to send defendant to
jail.
Sentencing ordinarily may take into account past misconduct (followed
by conviction or not), and it is true that the trial court in this case was
not required to send defendant to jail on account of the prior DUI
conviction. If incarceration is unrelated to an uncounseled prior
conviction, we would have no issue. But the Court should not facilely
avoid the argument. But for defendant's first and second DUIs, the court
would not have been permitted to sentence him as severely as it did for the
third offense.
The issue is where to draw the line in assigning counsel at state
expense to indigent DUI
defendants. If the dissent were the law, such counsel would be required in
every DUI case in order to consistently apply the DUI sentencing scheme.
On the other hand, the price to provide counsel in every case measured
against the diminished reliability when a DUI suspect is denied counsel is
difficult to weigh.
We know that due process cannot be made perfect at any price. If
added burden is placed on one part of the criminal justice system, a price
is exacted from another. We know that public defenders' time is limited,
and if defenders are required to defend all indigents charged with DUI,
public defenders' time will be spread thinner.
The question becomes how do we weigh the benefit of more reliable
adjudication with the allocation of costs in the criminal justice system?
There is no empirical measure I know about and it comes down to a matter of
judgment from experience. In my judgment, the requirement that counsel be
afforded to all indigent DUI defendants in order to effectuate the
recidivist statute is simply too big a price to pay for the relatively
small marginal gain in "reliability."
I believe the result in this case is fair given the stakes at hand.
Defendant was provided an advocate when loss of his freedom was most
threatened. The offender knew that repeated DUI convictions would lead to
more severe punishment, and the court had wide discretion to fashion a fair
sentence under the recidivist law. Finally, in a case like this, the court
may consider in fashioning the sentence that an uncounseled prior DUI
conviction may have been less reliable.
______________________________________
Associate Justice
------------------------------------------------------------------------
Dissenting
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. 94-215
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont
Unit No. 2, Addison Circuit
Donald L. Porter September Term, 1995
Edward J. Cashman, J.
Robert L. Sand, Department of State's Attorneys, Montpelier, for
plaintiff-appellee
Robert Appel, Defender General, and William A. Nelson, Appellate
Defender, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., dissenting. The majority, without engaging in
independent analysis, holds today that the decision of the United States
Supreme Court in Nichols v. United States, 114 S. Ct. 1921, 1927-28 (1994)
"comports with the protections afforded under the Vermont Constitution."
Ante, at 1. Because I believe that the Nichols decision rests on faulty
reasoning, and represents a sharp break with a line of Supreme Court
precedents affirming the importance of the right of indigent defendants to
appointed counsel, I dissent.
I.
The majority, following the Nichols Court, mischaracterizes this case
by focusing on the function of recidivism statutes. Although the majority
justifies its holding as supporting the "Legislature's efforts to handle
the increasing numbers of repeat offenders," ante at 4, today's holding in
fact undermines a criminal defendant's right to counsel, a constitutional
protection "necessary to insure fundamental human rights of life and
liberty." Johnson v. Zerbst, 304 U.S. 458, 462 (1938). The majority has
chosen to follow the U.S. Supreme Court in ignoring decades of
well-reasoned precedent establishing both the critical need of criminal
defendants for
the assistance of counsel, and the right of defendants to such assistance
if a term of imprisonment is imposed.
Although the right to counsel established by the Sixth Amendment to
the U.S. Constitution initially encompassed only a criminal defendant's
right to employ counsel, the U.S. Supreme Court gradually expanded its
meaning to include a right of indigent defendants to appointed counsel
under most circumstances. The first exhaustive review of the issue came in
Powell v. Alabama, 287 U.S. 45 (1932). There, in reviewing the rape
convictions of the Scottsboro Nine, the Court held that in a capital case,
where a defendant is unable to employ counsel and incapable of putting on
an adequate defense, failure to appoint counsel is a denial of due process
and violates the Fourteenth Amendment to the U.S. Constitution. Id. at 71.
Justice Sutherland, speaking for the Court, emphasized a defendant's
pressing need for the assistance of counsel:
The right to be heard would be, in many cases, of little avail if it
did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill
in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel, he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both the
skill and knowledge to prepare his defense, even though he have
a perfect one. He requires the guiding hand of counsel at every
step in the proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction because he does not know
how to establish his innocence.
Id. at 68-69.
Despite this sweeping language, the decision in Powell did not
establish an absolute right to appointed counsel, even in all capital
cases, id. at 71, but left that decision to future cases. In Johnson v.
Zerbst, 304 U.S. at 467-68, the Court held that indigent defendants facing
federal charges are entitled to appointed counsel under the Sixth
Amendment, unless the right is competently and intelligently waived.
Twenty-five years later, overruling its previous decision in Betts v.
Brady, 316 U.S. 455 (1942), the Court extended that holding to apply to a
criminal
defendant accused of a felony under state law. Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963).
The Court in Gideon did not indicate whether its holding was limited
to defendants facing felony charges, so the extent of the right to
appointed counsel remained uncertain until the Court's decision in
Argersinger v. Hamlin, 407 U.S. 25 (1972). Argersinger, an indigent
defendant, had received a three-month jail sentence on the basis of an
uncounseled misdemeanor conviction. The Court reversed his conviction,
holding that "no person may be imprisoned for any offense, whether
classified as petty, misdemeanor, or felony, unless he was represented by
counsel at his trial." Id. at 37. After Argersinger, lower courts were
uncertain whether the right to counsel attached for any offense for which
imprisonment was authorized, or only for those offenses for which
imprisonment was actually imposed. In Scott v. Illinois, 440 U.S. 367
(1979), the Court emphasized that "actual imprisonment [is] the line
defining the consitutional right to appointment of counsel." Id. at 373.
The Court held that "no indigent criminal defendant [may] 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.
At each turn, as the Court expanded the right to appointed counsel,
the Court recognized the insurmountable obstacles facing criminal
defendants forced to fend for themselves without the assistance of counsel.
The Johnson court, describing the Sixth Amendment protections as essential
to achieving justice, stated that the right to counsel "embodies a
realistic recognition of the obvious truth that the average defendant does
not have the professional legal skill to protect himself," especially where
the prosecution is presented by counsel, because "[t]hat which is simple,
orderly and necessary to the lawyer, to the untrained layman may appear
intricate, complex and mysterious." Johnson, 304 U.S. at 462, 463. In
Gideon, the Court again emphasized the inequality of resources and skills
between uncounseled defendants and trained prosecutors:
Governments, both state and federal, quite properly spend vast
sums of money to establish machinery to try defendants accused of
crime. Lawyers to prosecute are everywhere deemed essential to
protect the public's interest in an orderly society. . . . That
government hires lawyers to prosecute and defendants who have
the money hire lawyers to defend are the strongest indications of
the widespread belief that lawyers in criminal courts are
necessities, not luxuries.
Gideon, 372 U.S. at 344. The Court concluded that "any person haled into
court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him." Id.
The Court later explicitly recognized that the reasoning of Gideon and
Powell was not limited to felony trials, but is relevant to any criminal
proceeding "where an accused is deprived of his liberty." Argersinger, 407 U.S. at 32. The Court noted that complex legal and constitutional issues
may be raised even in trials for petty offenses. Id. at 33. Also,
relevant to this case, the Court pointed out the frequency of guilty pleas
in misdemeanor cases, and the need for counsel both to advise defendants
"of the prospect of going to jail or prison" and to ensure fair treatment
by the prosecution. Id. at 34. Finally, the Argersinger court emphasized
the "`assembly-line justice'" common in misdemeanor cases, id. at 36, and
the prejudice suffered by misdemeanant defendants as a result of the
"obsession for speedy dispositions, regardless of the fairness of the
result." Id. at 34.
This substantial body of precedent culminated in Scott, where the
Court declined to extend the right to appointed counsel to midemeanant
defendants who are not sentenced to a jail or prison term. Scott, 440 U.S. at 373-74. The Court in Scott did not conclude that such defendants are
somehow better able to present a defense, or are less likely to be swept
along in the "assembly-line" system of misdemeanor justice described in
Argersinger. Rather, the Court concluded that "actual imprisonment is a
penalty different in kind from fines or the mere threat of imprisonment"
and that only defendants who suffer such a deprivation of liberty are
entitled to appointed counsel.
In rejecting the argument of Justice Brennan, joined by Justices
Marshall and Stevens, that the right to appointed counsel should attach for
any offense for which imprisonment is authorized, id. at 382 (Brennan, J.,
dissenting), the Scott majority noted that extending the right to appointed
counsel would "impose unpredictable, but necessarily substantial, costs on
50 quite
diverse States." Id. at 373. The Scott majority apparently concluded that
the high cost of providing counsel for all misdemeanant defendants, or even
all defendants charged with misdemeanor offenses for which imprisonment is
authorized, outweighs the harm to those defendants who will suffer wrongful
convictions because they lack the assistance of counsel, as long as those
defendants do not suffer actual imprisonment as a result of the wrongful
conviction. Or, put another way, although uncounseled misdemeanor
convictions may not be as reliable as convictions obtained where the
defendant is represented by counsel, that inherent unreliability does not
rise to a level of constitutional significance unless the conviction
results in a jail or prison sentence. See Nichols, 114 S. Ct. at 1929
(Souter, J., concurring) (arguing that Scott relied on theory that
reliability concern raised by uncounseled conviction "is tolerable when a
defendant does not face the deprivation of his liberty").
II.
Inexplicably, by holding that a defendant may receive a sentence of
imprisonment based on a prior uncounseled conviction, both the Nichols
court and the majority have abandoned the line drawn so emphatically in
Scott. The majority, in fact, does not even confront this inconsistency,
but merely explains that the increased penalty for a subsequent offense
under 23 V.S.A § 1210(d) "does not impose punishment on the basis of the
prior offense, but rather punishes only the last offense committed by the
defendant." Ante, at 7. This reasoning is confusing and simply
inadequate. The very language of the statute explicitly outlines
heightened penalties for second and third offenses. 23 V.S.A. § 1210(c) &
(d). A sentence imposed for a third offense, although punishing the most
recent offense, is based as well on the fact of the first and second
convictions. As the majority recognizes, the prior convictions must be
alleged by the State as elements of the repeat-offender charge, and must be
proven beyond a reasonable doubt. Ante, at 5; State v. Cameron, 126 Vt.
244, 249-50, 227 A.2d 276, 279 (1967). The majority cannot sweep away the
fact that defendant's prior uncounseled DUI conviction "directly resulted"
in a harsher sentence, Nichols, 114 S. Ct. at 1933 (Blackmun, J.,
dissenting), by asserting that the prior conviction was somehow not the
basis for the sentence.
The goal of recidivism statutes is to punish criminal acts more
severely when they are committed by repeat offenders. Defendant received a
felony sentence for his DUI conviction only because the court found that he
had been twice previously been convicted of the same offense. The
majority's insistence that defendant was punished for his most recent
offense, although a true statement, unfairly glosses over defendant's
serious constitutional claim: that his prior uncounseled conviction is not
reliable enough to serve as a predicate for a sentence of imprisonment.
Although not mentioned by the majority, this is the issue which
concerned the Baldasar plurality and the dissenting justices in Nichols.
As Justice Blackmun wrote in Nichols, the "concern here is not with
multiple punishments, but with reliability. Specifically, is a prior
uncounseled misdemeanor conviction sufficiently reliable to justify
additional jail time imposed under an enhancement statute?" Nichols, 114 S. Ct. at 1933 (Blackmun, J., dissenting) (emphasis added). Scott, which
was premised upon the significant difference between a sentence of
imprisonment and other types of punishments, compels the conclusion that
convictions resulting in imprisonment must be held to a higher standard of
reliability -- a standard that is not met if the defendant is deprived of
the assistance of counsel. See id.
In this case, defendant's conviction for DUI, third offense, and the
resulting felony sentence imposed pursuant to 23 V.S.A. § 1210(d), was
based in part on a prior uncounseled DUI conviction. In that earlier
proceeding, defendant was denied counsel, and entered a plea of guilty.
Like the defendant in Nichols, whose sentence for a federal drug offense
was increased by over two years because of a prior uncounseled DUI
conviction, defendant could not have been sentenced to a term of
imprisonment for the prior conviction, because he was deprived of the
assistance of counsel. Without counsel, defendants know they will be
hampered in presenting a defense at trial. Without counsel, defendants are
at a disadvantage in plea negotiations with the state's attorney.
Regardless of whether a jail term is imposed, the conviction retains the
inherent unreliability of any uncounseled conviction.
The Argersinger Court's concerns that a misdemeanant defendant without
counsel might be lost in the shuffle of a busy court, or be swept along by
a process not fully understood, apply with equal force to defendant's prior
conviction. If anything, such concerns are heightened, not lessened, by
the fact that defendant's prior conviction was not considered sufficiently
serious by the court or the state's attorney to warrant a sentence of
imprisonment.(FN1) None of the factors pointing to the unreliability of the
first conviction is changed by the fact of the later one. I must agree
with Justice Marshall that "[a]n uncounseled conviction does not become
more reliable merely because the accused has been validly convicted of a
subsequent offense." Baldasar, 446 U.S. at 228 (Marshall, J., concurring).
Indeed, the majority's contrary holding represents "an illogical and
unworkable deviation" from precedent. Id. at 229.
III.
The U.S. Supreme Court, despite persuasive arguments to the contrary,
chose in Nichols to ignore the reasoning of its own precedents and to erode
the protection of the right to counsel established by the Sixth Amendment.
This Court, however, as the "final interpreter of the Vermont Constitution
. . . has final say on what process is due in any given situation." State
v. Brunelle, 148 Vt. 347, 350, 534 A.2d 198, 201 (1987). As the majority
recognizes, we have on a previous occasion held that Chapter I, Article 10
of the Vermont Constitution provides greater protection for a criminal
defendant than analogous provisions of the federal constitution. See, e.g.,
id. at 351, 534 A.2d at 201-02. Our one-time statement in dicta in
Brunelle that the "right to be heard by oneself and by counsel" conferred
by Chapter I, Article 10 is "similar to the federal Sixth Amendment right,"
id. at 352, 534 A.2d 202, does not foreclose the Court's options in this
case.
Our only precedent on this question is our decision in State v.
Lafountain, 160 Vt. 313, 316-17, 628 A.2d 1243, 1245-46, a decision
grounded in the federal constitution. In Lafountain, we interpreted the
splintered Baldasar ruling on the narrowest grounds possible, as permitting
the use of a prior uncounseled conviction to enhance a sentence of
imprisonment, unless the prior offense carried an authorized sentence of
greater than six months or the defendant was actually imprisoned for the
prior offense. Id. Applying this rule, we upheld the defendant's
misdemeanor conviction and accompanying mandatory sentence, pursuant to 23
V.S.A. § 674(b), for driving with a suspended license (DLS), based in part
on his two prior uncounseled civil DLS violations. Id. at 314, 628 A.2d at
1244. We did not, however, give the issue separate consideration under the
Vermont Constitution, nor did the defendant argue that Chapter I, Article
10 required a different result than that reached in Baldasar.
Today, the question is directly presented as one of state
constitutional law. Rather than following the shifting sands of the U.S.
Supreme Court, I believe we should face this issue squarely and decide it
independently. I would hold that the right to counsel established by
Chapter I, Article 10 of the Vermont Constitution precludes the use of
defendant's prior uncounseled misdemeanor conviction to enhance the term of
imprisonment imposed for this offense. Accordingly, I would remand the
case for resentencing, without reference to the prior uncounseled
conviction.
_______________________________________
Associate Justice
---------------------------------------------------------------------------
Footnotes
FN1. Indeed, without the advice of counsel defendant may well have
been unaware that his guilty plea could form the basis for a sentence of
imprisonment in a later proceeding. Although not raised here, Nichols held
that a court is not obligated to inform a defendant that a conviction may
later be used for sentence enhancement. Nichols, 114 S. Ct. at 1928.
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