State v. LeClair

State v. LeClair  (96-420); 167 Vt. 32; 702 A.2d 628

[Filed 1-Aug-1997]

       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. 96-420


State of Vermont                             Supreme Court

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

Jeffrey L. LeClair                           June Term, 1997


James R. Crucitti, J.

       Robert L. Sand, Department of State's Attorneys, Montpelier, for
  plaintiff-appellant

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for defendant-appellee


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


       DOOLEY, J.   The State brings this interlocutory appeal from an order
  of the Vermont District Court of Franklin Circuit, dismissing a
  repeat-offender prosecution for driving with a suspended license (DLS) in
  violation of 23 V.S.A. § 674(c) because one of the prior predicate
  adjudications was vacated.  The State argues that the third DLS
  adjudication allows criminal penalties under § 674(c) even if one or both
  of the earlier adjudications were invalid.  The trial court rejected the
  State's arguments and granted defendant's motion to dismiss.  We agree and
  affirm.

       Defendant was charged with criminal DLS in violation of 23 V.S.A. §
  674(c), which states: "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 set forth in § 674(a) is
  imprisonment for not more than two years, or a fine of not more than $5000,
  or both. Section 676 provides that in certain circumstances a person who
  operates or attempts to operate a motor vehicle when his or her license or
  privilege to operate is revoked, suspended or refused

 

  commits a civil traffic violation.

       These charges against defendant were predicated upon two prior civil
  DLS violations under 23 V.S.A. § 676, one occurring on October 4, 1991 and
  the other on January 3, 1994. Following arraignment on the § 674(c) charge,
  defendant moved in the Vermont Traffic Bureau to reopen the civil § 676
  adjudications.  The Traffic Bureau hearing officer granted the motions to
  reopen the § 676 cases and set them for rehearings.  Defendant then filed a
  motion to dismiss the § 674(c) prosecution under V.R.Cr.P. 12(d) (lack of
  prima facie case) on the ground that the State would be unable to prove the
  alleged predicate violations.  Before the hearing on the 12(d) motion, the
  Traffic Bureau vacated one of the two § 676 convictions.  Thereafter, the
  trial court granted defendant's motion to dismiss the § 674(c) charge.(FN1)

       The State phrases this as a temporal question, arguing that the two
  former adjudications must exist at the time of the third instance of DLS,
  rather than at trial.(FN2)  The effect of the State's position is, however,
  that the State can rely on invalid predicate adjudications except when they
  are stricken prior to the motor vehicle operation that forms the basis for
  the criminal prosecution.  Accordingly, we prefer to phrase the issue as
  whether the State can rely on invalid predicate adjudications to fulfill
  the element of the offense created by § 674(c).

       Repeat-offender statutes can be classified into two different types:
  status-offense statutes

 

  and penalty-enhancement statutes.  For status-offense statutes, the element
  of the offense is the fact of the prior conviction, irrespective of its
  validity.  The primary case on which the State relies, Lewis v. United
  States, 445 U.S. 55 (1980), involved a status-offense statute.  The
  defendant in Lewis was charged with the federal offense of possessing a
  firearm after being convicted of a felony by a state court.  He attempted
  to defend on the ground that he had been unconstitutionally denied the
  right to counsel in connection with the predicate felony conviction. The
  United States Supreme Court rejected Lewis's challenge, concluding that
  Congress had manifested no intent to permit collateral attacks upon prior
  state convictions in federal criminal proceedings.  Id. at 60.  The Court
  distinguished the status-offense statute in Lewis from cases that involved
  penalty-enhancement statutes where the sentence was overturned.  See United
  States v. Tucker, 404 U.S. 443, 447-49 (1972) (holding that uncounseled
  conviction could not be considered by court in sentencing defendant after
  subsequent conviction); Burgett v. Texas, 389 U.S. 109, 115-16 (1967)
  (holding that uncounseled convictions could not be used for enhancement of
  punishment under state's recidivist statute).  The Court reasoned that the
  federal gun laws focus not on reliability of past convictions, but rather
  on Congress's intent to keep firearms away from potentially dangerous
  persons.  Lewis, 445 U.S.  at 67.

       Penalty-enhancing statutes, on the other hand, increase the penalties
  for subsequent violations of the same criminal law, or recidivism.  As a
  consequence, the enhanced penalties depend on proof of former criminal
  activity, usually through valid criminal convictions.  See State v. Brown,
  ___ Vt. ___, ___, 676 A.2d 350, 354 (1996) (DUI law contains sentence-
  enhancement provision, which cannot be invoked where former convictions
  involved violations of right to counsel).

       We decided that § 674(c) is a penalty-enhancement provision in State
  v. Lafountain, 160 Vt. 313, 628 A.2d 1243 (1993), and specifically rejected
  the applicability of Lewis:

 


     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.

  Id. at 315-316, 628 A.2d  at 1245.  The holding of Lafountain is directly
  contrary to the State's position, and we must overrule it if we are to
  accept the State's argument.

       The State urges us to overrule Lafountain because (1) its reasoning is
  contrary to the intent of the Legislature, (2) it offends the policy of
  finality of adjudication, and (3) reopening of civil DLS adjudications
  interferes with the fair administration of justice.  The main focus of the
  State's first argument is that the threshold for criminal liability is
  three DLS violations, so it must be considered a status offense.  It relies
  on the action of the Legislature in decriminalizing first-and
  second-offense DLS, leaving the current criminal threshold.  The State's
  argument was considered in Lafountain and rejected.  See Lafountain, 160
  Vt. at 317, 628 A.2d  at 1246.   Further, we held in State v. Flagg, 160 Vt.
  141, 144-45, 624 A.2d 864, 866 (1993), that the intent of the Legislature
  in adopting the current scheme was to reduce penalties, not to create new
  offenses.  Finally, we reiterate that "[t]he 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."  State v. Porter, 164 Vt. 515, 519, 671 A.2d 1280, 1283 (1996).  
  The Legislature's different treatment of first-and second-offense DLS did
  not change the essential nature of its treatment of third-offense DLS.  The
  language of the statute is consistent with the intent to increase
  punishments for recidivist conduct, and the State has presented no other
  rationale for the statutory scheme.  We decline to overrule Lafountain.

       The State's other arguments address the action of the Traffic Bureau
  in reopening, and subsequently vacating, the prior DLS adjudication.  The
  action of the Bureau is not before us in this criminal case.  The State is
  a party to civil traffic adjudications and can raise its

 

  arguments in those proceedings, appealing to the district court or to this
  Court, if necessary.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes



FN1.  In an earlier case involving a different defendant, the court
  had ruled that the State was required to show two prior, unvacated final
  adjudications of DLS at the time of trial.  In that case the two civil DLS
  adjudications had been reopened, but not vacated; here, one of defendant's
  prior civil adjudications had been reopened as well as vacated.  We limit
  our holding to instances where one or more of the predicate judgments is
  vacated, as in this case.

FN2.  Section 674(c) contains no requirement that there be former
  adjudications, allowing for the possibility that the State could prove two
  former violations that did not lead to adjudications as part of its
  criminal case.  The trial court discussed this issue and concluded that the
  State could use prior violations that did not lead to adjudications, but
  could not use as a past violation conduct that was the subject of a civil
  traffic adjudication which the State lost.  We need not address this issue
  in the posture of this case.  The only alleged past violations involved are
  the two for which civil adjudications were held, and the State does not
  claim that it can meet its burden under § 674(c) by proving in the criminal
  proceeding that defendant actually violated § 676 on the instance for which
  the civil adjudication has been vacated.