State v. Wigg

State v. Wigg (2005-530)

2007 VT 48

[Filed 24-May-2007]

                                 ENTRY ORDER

                                 2007 VT 48

                      SUPREME COURT DOCKET NO. 2005-530

                              MARCH TERM, 2007


  State of Vermont                     }         APPEALED FROM:
                                       }
                                       }
       v.                              }         District Court of Vermont,
                                       }         Unit No. 1, Windham Circuit
  Donald Wigg                          }
                                       }         DOCKET NO. 236-3-01 Wmcr

                                                 Trial Judge: Katherine A. Hayes

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


       ¶  1.  Defendant Donald Wigg appeals a district court order mandating
  that he comply with 20 V.S.A. § 1933 (2000), which requires that all
  persons convicted of enumerated violent crimes submit a DNA sample to the
  State for testing and inclusion in the state and federal DNA databases.
  (FN1)   On appeal, defendant does not claim any error in the proceedings
  that led to the sampling order, but instead challenges the proceedings that
  led to his conviction for the underlying crime.  He also claims several
  errors in our decision affirming that conviction and denying his motion for
  reargument.  Finally, defendant challenges the DNA statute under the state
  and federal constitutions.  We affirm. 
        
       ¶  2.  In 2003, a jury convicted defendant of felony lewd or
  lascivious conduct with a child, 13 V.S.A. § 2602, one of the crimes
  enumerated in the DNA statute, 20 V.S.A. § 1932(M) (2000).  Defendant
  appealed his conviction to this Court, and we affirmed in July 2005.  State
  v. Wigg, 2005 VT 91, ¶ 1, 179 Vt. 65, 889 A.2d 233.  While defendant was
  incarcerated on that charge at a facility in Kentucky, he received notice
  in February 2005 from the Vermont Department of Corrections (DOC) that he
  was required to submit a DNA sample to the State.  When a DOC employee
  arrived to collect defendant's DNA in March 2005, defendant refused and
  signed the State's Refusal Form.  The State immediately moved to compel DNA
  sampling from defendant.  20 V.S.A. § 1935 (2000).  Attached to its motion,
  the State submitted the signed Refusal Form, the notice form, and an
  affidavit from the DOC employee who had attempted to collect defendant's
  DNA.  Based on these supporting materials, the district court granted the
  State's motion, subject to defendant's statutory right to a hearing. (FN2)

       ¶  3.  After receiving notice of the district court's order, in
  April 2005, defendant filed an objection to the State's motion and
  requested a hearing.  The basis of defendant's objection was that, because
  the direct appeal of his underlying conviction was still pending before
  this Court, the judgment against him was not final.  The hearing regarding
  defendant's DNA sampling was held in November 2005, after we affirmed
  defendant's underlying conviction and denied his motion for reargument. 
  Following the hearing, the district court ordered defendant to provide the
  State a DNA sample.  This appeal followed.

       ¶  4.   The district court's initial provisional order directing
  defendant to provide a DNA sample was based on its finding that the State's
  submissions demonstrated that defendant was a person required by statute to
  submit a sample.  At the hearing, the court found facts, which defendant
  conceded, establishing that defendant was required to provide a sample
  under the terms of the statute.  The final order, issued after the hearing,
  implicitly incorporates the court's findings.  We reverse the district
  court's factual findings only when they are clearly erroneous.  State v.
  Willis, 2006 VT 128, ¶ 22, ___ Vt. ___915 A.2d 208.  There was no error
  here.


       ¶  5.  The statute limits the scope of the compelled-sampling hearing
  to the sole issue of whether the person refusing to provide the sample is a
  person statutorily required to provide one.  20 V.S.A. § 1935(b), (c) (Cum.
  Supp. 2006). (FN3)  The hearing is intended simply to determine whether a
  defendant is a "person convicted in a court in this state of a violent
  crime on or after the effective date of [the DNA database statute]," 20
  V.S.A. § 1933(a)(1) (2000), or a "person who was convicted in a court in
  this state of a violent crime prior to the effective date of [the statute]
  and [who], after the effective date," is in state custody, on probation,
  parole, or serving a supervised community sentence for the violent crime,
  id. § 1933(a)(2).  The effective date of the statute was April 29, 1998. 
  Defendant was convicted in 2003, and his conviction was affirmed in 2005. 
  Defendant never disputed that he was convicted of an enumerated violent
  crime after the effective date of the statute.  Given these undisputed
  facts, the district court did not err in finding that defendant was
  required to provide a sample.

       ¶  6.  Defendant argued at his hearing, and contends on this appeal,
  that he was wrongfully convicted of the underlying
  lewd-or-lascivious-conduct charge due to a variety of errors at the trial
  court, that his direct appeal was wrongly decided by this Court, and that
  we wrongly denied his motion to reargue.  But a § 1935 hearing is not a
  forum for defendants to collaterally attack their convictions.  The
  district court properly declined to consider these alleged errors.  There
  are avenues available to defendants to further challenge their convictions
  after a direct appeal has failed, but the § 1935 hearing is not one of
  them. (FN4)  In the event that defendant's conviction is overturned or he
  is pardoned, the statute provides that his DNA sample and information will
  be removed from the state data bank and from the state and federal
  databases.  20 V.S.A. § 1940(a) (Cum. Supp. 2006).  By including that
  provision, the Legislature indicated that it did not intend to allow
  defendants to refuse to submit DNA samples until every possible avenue of
  appeal, pardon, or post-conviction relief is exhausted.  Even if defendant
  may one day obtain relief from his conviction, by way of his habeas
  petition or otherwise, that possibility is no bar to requiring him to
  submit a DNA sample now.
             
       ¶  7.  Defendant also raises state and federal constitutional
  challenges to the DNA database statute.  He claims that the statute
  violates Article 11 of the Vermont Constitution and the Fourth Amendment to
  the United States Constitution.  As noted supra, note 3, defendant could
  have raised these challenges at the sampling hearing, but did not do so. 
  Accordingly, we do not review them here.  State v. Nash, 144 Vt. 427, 433,
  479 A.2d 757, 760-61 (1984).

       Affirmed.




                                       BY THE COURT:
    


                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Brian L. Burgess, Associate Justice


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                                  Footnotes


FN1.  This statute has been amended to require a person convicted of any
  felony in Vermont to submit a DNA sample.  2005, No. 83, § 8.  This order
  refers only to the statute in effect prior to the 2005 amendment.

FN2.  We observe that the district court's provisional grant of the State's
  motion varies from the procedure dictated by the DNA statute.  According to
  the statute, a defendant is entitled to a hearing before the court issues
  an order compelling him to provide a DNA sample.  20 V.S.A. § 1935(b). 
  Because defendant requested and received a hearing before being compelled
  to submit a sample, however, he was not denied any of the rights guaranteed
  by the statute.  Since defendant claims no error in this procedure, it is
  not preserved for review, and we need not address it further.  See N.
  Terminals, Inc. v. Smith Grocery & Variety, 138 Vt. 389, 394, 418 A.2d 22,
  25 (1980).

FN3.  Of course, a defendant may challenge the constitutionality of the
  sampling statute itself at the sampling hearing.

FN4.  Defendant currently has a habeas corpus petition pending in federal
  district court. See 28 U.S.C. § 2253.