In re LaMountain

In re LaMountain  (99-195); 170 Vt. 642; 752 A.2d 24

[Filed 19-Apr-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-195

                             JANUARY TERM, 2000


State of Vermont                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Chittenden Superior Court
                                       }	
David LaMountain                       }
                                       }	DOCKET NO. S0306-98CnC


       In the above-entitled cause, the Clerk will enter:

       The State appeals from the superior court's ruling vacating petitioner
  David LaMountain's  1985 conviction for driving while intoxicated, first
  offense.   Petitioner collaterally attacked the 1985  conviction that was
  based on a guilty plea, which he claims was not intelligent and voluntary. 
  The  court found jurisdiction based on the permanent revocation of
  petitioner's license and vacated the  1985 conviction because of Rule 11
  violations.  We reverse.

       In March 1998, petitioner filed a petition for post-conviction relief
  requesting the court  vacate  his 1985 conviction because his guilty plea
  was not voluntary and intelligent.  Petitioner's driver's  license is now
  revoked for life as a result of his three convictions, including the 1985
  conviction, for  DWI.  See 23 V.S.A. § 1208.   The court decided this
  permanent restriction on petitioner's liberty  satisfied the requirements
  of the post-conviction-relief statute and vacated the 1985 conviction based 
  on the absence of a recorded Rule 11 colloquy. 

       On appeal, the State argues that the court lacked jurisdiction to hear
  the claim because  petitioner is not "in custody under sentence" as
  required by the post-conviction-relief statute.  See  id.   Substantively,
  the State argues that the court erred in vacating the conviction where
  petitioner  had not carried his burden to show fundamental errors rendered
  his conviction defective. 

       Post-conviction relief is available only to petitioners who are "in
  custody under sentence of  a court."  See 13 V.S.A. § 7131.  Rule 32(d)
  motions are available to those convicted but not in  custody under
  sentence.  See V.R.Cr.P. 32(d).  Therefore, as a threshold question, we
  must determine whether petitioner's situation satisfies the jurisdictional
  requirement that he be "in custody under  sentence."


 


       A defendant need not be incarcerated to be "in custody."  See State v.
  Wargo, 168 Vt. 231,  234, 719 A.2d 407, 409 (1998).   We have held that "a
  significant restraint on personal liberty as a  direct result of the
  challenged Vermont conviction" is sufficient to satisfy the
  post-conviction-relief  statute.  In re Stewart, 140 Vt. 351, 359-60, 438 A.2d 1106, 1109 (1981).  Relief is, however, limited  to those suffering
  significant restraints on liberty.  "Every collateral consequence
  associated with a  conviction will not trigger jurisdiction.  A conviction
  may deny some privileges so trivial that the  'in custody' requirement is
  not satisfied."  Id. at 360, 438 A.2d  at 1109.  

       We have held that the three-year suspension of a license did not
  constitute custody.  See In re  Liberty, 154 Vt. 643, 644, 572 A.2d 1381,
  1382 (1990).  There, we turned to what other courts have  called "useful
  indicia" of custody.  Id.  Those indicia are: 

    [T]he petitioner's conduct must be to some degree under the
    supervision  or direction of judicial officers; or the petitioner
    may face the possibility  of imminent incarceration without a
    formal trial and criminal conviction,  creating a restraint on
    liberty sufficient to constitute custody.  At a  minimum, the
    combination of such incarceration with even minimum  supervision
    could constitute custody.  

  Id. (citations omitted). We have adhered to this standard in defining
  custody in subsequent cases.  See, e.g., State v. Yates, ___ Vt. ___, ___,
  726 A.2d 483, 485 (1999) (holding that probation was  custody and permitted
  jurisdiction under post-conviction relief statute); Wargo, 168 Vt. at 234,
  719 A.2d 409-10 (holding that petitioner on probation was "in custody"
  because both factors of  mandatory supervision and possibility of imminent
  incarceration were present).  Neither factor is  present in this case;
  petitioner is under no supervision by judicial officers, nor is he subject
  to  incarceration without a trial and conviction.  Therefore, he is not "in
  custody," and the court lacked  jurisdiction to hear his petition.

       Our decision accords with decisions in other states that the loss of a
  driver's license is not  "custody" as contemplated by post-conviction
  relief provisions.  See, e.g., State v. Blankenfeld, 423 N.W.2d 479, 482
  (Neb. 1988) (permanent revocation of driver's license for DWI did not
  satisfy "in  custody" requirement of post-conviction relief statute);
  Commonwealth v. Ahlborn, 699 A.2d 718,  720 (Pa. 1997) (to be eligible for
  post-conviction relief, petitioner must be currently serving sentence  of
  imprisonment, probation, or parole).  

       Because we find the court lacked jurisdiction to consider petitioner's
  post-conviction petition,  we do not reach the substantive claim that
  petitioner's 1985 guilty plea was improperly accepted in  the absence of a
  Rule 11 colloquy. Petitioner is not deprived of an avenue to challenge the 
  conviction, however.  Because he was not sentenced to any imprisonment, he
  falls within Rule 32(d)  and may file a motion to withdraw his guilty plea
  in the 1985 case.  See V.R.Cr.P. 32(d) (providing  that motion to withdraw
  guilty plea may be made "at any time" by defendant whose sentence does  not
  include term of imprisonment).    


 


       Reversed.


BY THE COURT:



_______________________________________
Jeffrey L. Amestoy, Chief Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice