In re Torres

In re Torres (2003-242); 177 Vt. 507; 861 A.2d 1055

2004 VT 66

[Filed 6-Aug-2004]


                                 ENTRY ORDER

                                 2004 VT 66

                      SUPREME COURT DOCKET NO. 2003-242

                             JANUARY TERM, 2004

  In re Andres Torres	               }	APPEALED FROM:
                                       }
                                       }
       	                               }	Chittenden Superior Court
                                       }	
                  	               }
                                       }	DOCKET NO. 0907-00 Cncv

                                                Trial Judge: Matthew I. Katz

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

       ¶  1.  Defendant Andres Torres appeals from a summary
  judgment order of the Chittenden County Superior Court denying his claim
  for post-conviction relief from a second degree aggravated domestic assault
  conviction under 13 V.S.A. § 1044(a)(2).  Defendant claims that the
  statute's language requires a prior domestic assault conviction, and that,
  because he had no prior domestic assault conviction, his conviction for
  second degree domestic assault must be dismissed.  We conclude that
  defendant waived his right to challenge his conviction on this ground when
  he pled guilty to the domestic assault charge.  Nevertheless, because we
  also conclude that defendant's statutory interpretation is correct, we
  remand the case for consideration of defendant's ineffective assistance of
  counsel claim.
   
       ¶  2.  On August 26, 1996, the State charged defendant with, among
  other crimes, four counts of second degree aggravated domestic assault,
  each for a separate incident on a separate day of the same week.  Pursuant
  to 13 V.S.A. § 1044(a)(2), "[a] person commits the crime of second degree
  aggravated domestic assault if the person . . . commits a second or
  subsequent offense of domestic assault, which causes bodily injury." 
  Second degree aggravated domestic assault holds an enhanced sentence of a
  maximum of five years in prison or a maximum $10,000.00 fine.  Id.; cf. 13
  V.S.A. § 1042 (penalty for domestic assault is a maximum one year in prison
  or a maximum $5,000.00 fine).

       ¶  3.  The State's information alleged defendant caused bodily harm
  to a household member and that defendant had been previously convicted of
  domestic assault on December 21, 1995.  Contrary to this allegation,
  defendant was not convicted of domestic assault in 1995 - he was merely
  arraigned for domestic assault charges that were subsequently dismissed on
  March 11, 1996.   Nonetheless, under a plea agreement with the State, in
  return for dismissal of three of the second degree aggravated domestic
  assault charges, defendant pled guilty to the fourth charge.  Defendant was
  sentenced to three to five years in prison to be served concurrently with
  another sentence. 
   
       ¶  4.  In July 2000, defendant filed a pro se petition for
  post-conviction relief (PCR) in Chittenden County Superior Court claiming
  that his attorney at the plea hearing rendered ineffective assistance of
  counsel and requesting that his conviction under § 1044(a)(2) be dismissed. 
  In his petition, defendant asserted that a person cannot be convicted under
  § 1044(a)(2) unless that person has a prior domestic assault conviction. 
  Defendant claimed his attorney failed to investigate the factual basis of
  his prior domestic assault charge and should never have advised him to
  plead guilty to that charge.  With the help of appointed counsel, defendant
  later amended his petition, adding a claim that his enhanced sentence was
  unlawful because he had no prior domestic assault conviction. 

       ¶  5.  The State moved for summary judgment, arguing that defendant
  waived his right to claim the prior conviction was nonexistent when he pled
  guilty.  Further, the State argued that even if defendant's claim had
  merit, the plain language of § 1044(a)(2) merely required defendant to have
  committed a prior domestic assault "offense" - not a conviction for that
  offense - to be charged under the statute.  The State suggested the
  Legislature intentionally distinguished between the term "offense" in §
  1044(a)(2) and the term "conviction" in § 1043(a)(3), the statute defining
  the more serious crime of first degree aggravated domestic assault. 

       ¶  6.  Without reaching defendant's ineffective assistance of
  counsel claim, the superior court granted the State's motion for summary
  judgment, holding that "[t]he plain language of the Second Degree
  Aggravated Domestic Assault statute . . . . does not require . . . a prior
  conviction."  This appeal followed.

       ¶  7.  Before turning to the merits, we note that after oral
  argument before this Court, the State made a timely motion that we take
  judicial notice of defendant's plea hearing transcript.  We grant the
  State's motion because review of the transcript is necessary to properly
  resolve this case.  This Court is permitted to take judicial notice of
  facts "not subject to reasonable dispute" when those facts are "capable of
  accurate and ready determination by resort to sources whose accuracy cannot
  reasonably be questioned."  V.R.E. 201(b)(1)-(2).  The transcript at issue
  is exactly the type of document subject to judicial notice under our rules
  because it is an accurate record of sworn plea colloquy testimony. 
  Furthermore, questions regarding the validity of defendant's conviction -
  the very conviction on appeal before this Court - are accurately and
  readily resolved by reading the plea hearing transcript.

       ¶  8.  Defendant opposes the State's motion and in doing so
  mistakenly relies on Jakab v. Jakab, 163 Vt. 575, 664 A.2d 261 (1995), to
  claim the plea hearing transcript is not subject to judicial notice.  In
  Jakab, we noted that "[i]t is improper to judicially notice the content of
  testimony in another proceeding."  Id. at 579, 664 A.2d  at 263 (emphasis
  added).  In that case, we affirmed a trial court's refusal to take judicial
  notice of a child's testimony from a previous abuse case in the divorce
  case pending before that court.  Id. at 577-79, 664 A.2d  at 262-63.  Here,
  however, the transcript is part of the same proceeding.  We note that the
  court must, in a PCR proceeding, review "the files and records of the case"
  to determine if there could be any merit to the proceeding.  See 13 V.S.A.
  § 7133.  The PCR proceeding and the underlying criminal case, the case
  referred to in the statute, are parts of the same "case" for purposes of
  the record.  The conviction on appeal before us stems from defendant's
  plea, which is the subject matter of the plea colloquy.  Thus, judicial
  notice is proper and we grant the State's motion.
   
       ¶  9.  Turning to the post-conviction claim on appeal, we hold that
  defendant waived his right to challenge his conviction under 13 V.S.A. §
  1044(a)(2) when he pled guilty.  "It is well settled that a defendant who
  knowingly and voluntarily enters a guilty plea waives all
  non-jurisdictional defects in the prior proceedings."  United States v.
  Garcia, 339 F.3d 116, 117 (2d Cir. 2003); see also State v. Armstrong, 148
  Vt. 344, 346, 533 A.2d 1183, 1184 (1987) ("A voluntary plea of guilty
  waives all nonjurisdictional defects in the proceedings leading up to the
  plea . . . .").  Nevertheless, we recognize the limited exceptions to the
  waiver rule inherent in the requirement that pleas be made "knowingly and
  voluntarily."  E.g., State v. Cleary, 2003 VT 9, ¶ 10, 824 A.2d 509
  (appeal of competency determination is exception to waiver rule); State v.
  Merchant, 173 Vt. 249, 258, 790 A.2d 386, 393 (2001) (citing Mitchell v.
  United States, 526 U.S. 314, 325-29 (1999) (defendants who enter guilty
  pleas retain self-incrimination rights at sentencing to prevent involuntary
  pleas)); United States v. Taylor, 139 F.3d 924, 929 (D.C. Cir. 1998)
  (same); United States v. Schuman, 127 F.3d 815, 818-19 (9th Cir. 1997)
  (Kozinski, C.J., concurring) (listing issues that a defendant who waives
  his right to appeal will nevertheless be allowed to appeal).  Defendants
  who plead guilty upon the advice of counsel, for example, "'may only attack
  the voluntary and intelligent character of the guilty plea by showing that
  the advice he received from counsel'" constituted ineffective assistance of
  counsel.  Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (quoting Tollett v.
  Henderson, 411 U.S. 258, 267 (1973)); United States v. Muench, 694 F.2d 28,
  34 (2d Cir. 1982) (allowing direct appeal challenging effective assistance
  of counsel, notwithstanding waiver rule). 

       ¶  10.  Defendant's plea colloquy verifies that he voluntarily
  entered into the plea agreement:

    COURT: Are you pleading guilty voluntarily to these [charges]
    because you feel you've committed these offenses?
    DEFENDANT: Yes I am.
    COURT: Have you discussed these matters fully with your attorney?
    DEFENDANT: Yes.
    COURT: Are you satisfied your attorney has done all he can for
    you?
    DEFENDANT: Yes.
    COURT: Are you in good mental and physical health today?
    DEFENDANT: Today, yes.   

       Furthermore, the colloquy indicates defendant understood the rights he
  was waiving by pleading guilty to the charges against him:

    COURT: And do you understand that if you plead guilty to these
    charges, you're giving up your right to a trial by jury?
    DEFENDANT: Yes I do.
    COURT: If that trial were held, the State would have to prove
    beyond a reasonable doubt that you committed . . . the domestic
    assault . . . .
    DEFENDANT: I understand.
    . . .

    COURT: If the trial were held you could see and hear the State's
    witnesses against you who would be sworn because the State has to
    prove beyond a reasonable doubt that you committed each of these
    offenses.  You could be represented by your attorney at the
    trials.  You could not be required to be a witness at these trials
    because you have the right against self incrimination.  You could
    testify if you wished to if you waived that right.  You could call
    witnesses if you wished to and you could use the Court's Subpoena
    power to have those witnesses attend although they might not want
    to come voluntarily.  You could appeal from the trial if you felt
    there were some errors and you could be represented by your
    attorney throughout the trial and throughout the appeals.  Do you
    understand all those rights?
    DEFENDANT: Yes I do.
    COURT: And do you understand that you give them up when you plead
    guilty?
    DEFENDANT: Yes.

       ¶  11.  From this colloquy, we conclude defendant entered his plea
  agreement voluntarily and understood that he was giving up appeal rights by
  pleading.  Therefore, he may not challenge his conviction now on grounds
  that he has never been convicted of a domestic assault, and thus cannot be
  guilty of committing a "second or subsequent offense" of domestic assault
  under 13 V.S.A. § 1044(a)(2).

       ¶  12.  Defendant is not, however, without other rights to challenge
  his conviction.  As noted, defendant premised his ineffective assistance of
  counsel claim on his assertion that 13 V.S.A. § 1044(a)(2) requires a prior
  domestic assault conviction and that his attorney failed to ascertain the
  factual basis of any prior conviction.  Although the statute's pertinent
  language does not employ the word "conviction," there is no question that
  to qualify for enhanced punishment under the "second or subsequent offense"
  provision, 13 V.S.A. § 1044(a)(2), defendant must have a prior domestic
  assault conviction.

       ¶  13.  Vermont's domestic assault statute includes a specific
  recidivist provision, which requires increasingly harsher punishments for
  repeat offenders. (FN1)  Simple domestic assault under 13 V.S.A. § 1042 is
  increased to second degree aggravated domestic assault if the person
  "commits a second or subsequent offense of domestic assault, which causes
  bodily injury." Id. § 1044(a)(2) (emphasis added).  An assault will be
  increased to first degree aggravated domestic assault if the person
  "commits the crime of domestic assault and has been previously convicted of
  aggravated domestic assault."  Id.§ 1043(a)(3)(emphasis added).  Both the
  State and trial court apply the plain language of the statutes to conclude
  that a prior conviction is necessary only for first degree domestic
  assault.  We disagree.
   
       ¶  14.  The phrase "second or subsequent offense" is common in
  habitual offender and specific recidivist statutes.  See, e.g.,  Deal v.
  United States, 508 U.S. 129, 137-8 (1993) (Stevens, J., dissenting)
  ("Congress uses the terms 'subsequent offense,' 'second or subsequent
  offense,' and 'second or subsequent conviction' in various sections of the
  Criminal Code, all to authorize enhanced sentences for repeat offenders."). 
  In such a context, the uniform rule has long been that the term "offense"
  assumes a prior conviction.  Id. at 135.  As the Supreme Court held in
  Deal, "[i]t cannot legally be known that an offense has been committed
  until there has been a conviction."  Id. (quoting Gonzalez v. United
  States, 224 F.2d 431, 434 (1st Cir. 1955)); accord Black's Law Dictionary
  1110 (7th ed. 1999) (defining "second offense" as an "offense committed
  after conviction for a first offense"). 

       ¶  15.  Since it is undisputed that defendant has never been
  convicted of domestic abuse at any time, and thus cannot be guilty under 13
  V.S.A. § 1044(a)(2), we remand for further proceedings on defendant's
  ineffective assistance of counsel claim.  See Dretke v. Haley, 124 S. Ct. 1847, 1848-49 (2004) (denying habeas corpus petition seeking to overturn an
  enhanced sentence imposed in violation of habitual offender statute, but
  vacating and remanding since petitioner's ineffective assistance of counsel
  claim "would give respondent all of the relief that he seeks - i.e.
  resentencing").
   
       Reversed and remanded. 


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice



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                               Footnotes


FN1.  For more examples of specific repeat offender statutes, as opposed to
  general repeat offender statutes compare 13 V.S.A. § 11 (habitual
  criminals);  id. § 11a (violent career criminals) with id. § 1027(a)
  (previous conviction of disturbing peace by use of telephone);  id. §
  1028(2) (second or subsequent offense of assault of law enforcement
  officer); id. § 1028a(a)(same, assault on correctional officer); id. §
  1030(b) (second or subsequent offense of violation of abuse order); id. §
  1063(a)(2)-(3) (prior conviction of aggravated stalking)