In re Carroll

In re Carroll (2006-468)

2007 VT 73

[Filed 19-Jul-2007]

                                 ENTRY ORDER

                                 2007 VT 73

                      SUPREME COURT DOCKET NO. 2006-468

                               JUNE TERM, 2007


  In re Richard Carroll               }          APPEALED FROM:
                                      }
                                      }
                                      }          Addison Superior Court
                                      }  
                                      }
                                      }          DOCKET NO. 92-5-05 Ancv

                                                 Trial Judge: Helen M. Toor

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

       ¶  1.  Petitioner appeals from the superior court's denial of his
  petition for post-conviction relief.  In his petition, he asserted that his
  guilty pleas should be vacated, arguing that the State  improperly charged
  him with thirty-one counts, which were not supported by law, and that his
  plea to three of the charges was coerced due to excessive overcharging and
  was therefore involuntary.  The State filed a motion for summary judgment,
  arguing that petitioner had waived his right to challenge the voluntariness
  of his pleas for failure to raise the issue on direct appeal, or in the
  alternative that he would be unable to demonstrate that his pleas were
  involuntary.  Petitioner  filed a cross-motion.  The court granted the
  State's motion, and petitioner appeals.

       ¶  2.  The facts in this case are undisputed.  Petitioner was
  charged in 1998 with twelve counts of illegal disposal of hazardous waste,
  twelve counts of illegal transport of hazardous waste, and seven counts of
  illegal disposal of solid waste.  Each of the thirty-one counts had a
  potential sentence of five years.  10 V.S.A. § 6612(d). 

       ¶  3.  All of the charges related to one incident in which
  petitioner dumped twenty-four barrels of waste into the Otter Creek, twelve
  of which were found to contain hazardous materials.  Those twelve barrels
  were the basis for the charges of illegal transport and illegal disposal. 
  The other seven barrels were the basis of the seven charges of illegal
  disposal of solid waste in an amount in excess of 275 pounds, id., as each
  contained more than that amount.  

       ¶  4.  In 1999, the State amended the information to charge
  petitioner as a habitual offender based on multiple prior felony
  convictions.  Based on that charge, even if petitioner was convicted of -
  or pleaded guilty to - only one of the thirty-one counts, he could be
  subject to life in prison.  See 13 V.S.A. § 11.
   
       ¶  5.  Petitioner filed a motion to strike what he alleged were
  duplicative counts, arguing that the case should be reduced to only one
  charge because all the barrels were allegedly transported and dumped as
  part of a single incident.  About two weeks later, rather than seeking a
  ruling on his motion, petitioner pleaded guilty to three of the charges -
  one of each type - and the other twenty-eight were dismissed.  The plea
  agreement capped the maximum sentence at five to fifteen years, and allowed
  petitioner to argue for less.  At the change-of-plea hearing, the judge
  expressly advised petitioner that his plea would render moot any pending
  motions: "I want you to understand that by pleading guilty today, there
  will be no ruling on any of those motions and some of those rulings might
  have been favorable to you . . . Do you understand that you give up the
  right to have the court rule on any of those motions?"  Petitioner stated
  that he understood.  

       ¶  6.  Prior to sentencing, (FN1) petitioner sought to withdraw his
  plea, arguing that he did not understand he was subject to the
  habitual-offender penalty.  The court rejected that argument, finding that
  the habitual-offender penalty was expressly discussed with him at the plea
  hearing.  Petitioner was ultimately sentenced to five to fifteen years on
  each of the three charges, all to run concurrently.
                                        
       ¶  7.  A month after sentencing, petitioner filed his petition for
  post-conviction relief.  He claimed that under the relevant statute, the
  State could have properly proceeded only on three charges: one charge of
  disposal of hazardous waste, one charge of transport of hazardous waste,
  and one charge of disposal of solid waste.  As a result of the "severe
  overcharging," he claimed his plea was involuntary.  As noted, the State
  moved for summary judgment, which the court granted.  We now affirm that
  decision.

       ¶  8.  This Court reviews the trial court's decision on summary
  judgment de novo and applies the same standard as the trial court.  In re
  Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281.  "Summary judgment is
  appropriate when there are no genuine issues of material fact and, viewing
  the evidence in a light most favorable to the nonmoving party, the moving
  party is entitled to judgment as a matter of law."  Id.  The standard for
  post-conviction relief is well-established.  On a petition for
  post-conviction relief, defendant bears the burden of proving "by a
  preponderance of the evidence, that fundamental errors rendered his
  conviction defective."  In re Liberty, 154 Vt. 643, 644, 572 A.2d 1381,
  1382 (1990) (mem.).  The burden of demonstrating prejudice falls on the
  petitioner.  In re Kivela, 145 Vt. 454, 458, 494 A.2d 126, 129 (1985).

       ¶  9.  As the trial court found, petitioner pleaded guilty to only
  the three charges he acknowledges could have been prosecuted and proved  - 
  one count of illegal disposal of solid waste, one count of illegal disposal
  of hazardous waste, and one count of illegal transporting of hazardous
  waste  -  and all the others were dismissed.  Further, he was aware of the
  issue he now raises before he entered his plea, as his counsel had filed a
  motion to strike the allegedly duplicative charges.  Petitioner expressly
  acknowledged on the record that he was waiving his right to have the court
  rule on that motion.  If petitioner was correct that the charges were
  duplicative, he needed only to wait for the trial court to rule on his
  pending motion, at which time he would have faced only one count instead of
  thirty-one.   
   
       ¶  10.  This situation may be analogized to a petitioner who claims
  that his plea was involuntary because the State threatened to use
  inadmissible evidence against him.  If the plea is entered while a motion
  to suppress the evidence is pending, the petitioner has no valid claim of
  involuntariness.  See People v. Edison, 467 N.Y.S.2d 368, 368 (App. Div.
  1983) (mem.) ("As defendant pleaded guilty three days before the decision
  of his motion to suppress statements, it is apparent that the court's
  decision denying the motion to suppress could in no way have been a factor
  in defendant's decision to plead guilty.").  Nor is this a case where
  petitioner was coerced by prosecution on a charge not justified by the
  evidence, as discussed in Brady v. United States, 397 U.S. 742, 751 n. 8
  (1970).  There the Court held that the defendant's guilty plea was
  voluntary and distinguished that plea from situations in which "the
  prosecutor or judge, or both, deliberately employ their charging and
  sentencing powers to induce a particular defendant to tender a plea of
  guilty."  Id.  The issue here is not whether the State had evidence to
  support the charges.  Rather, petitioner's dispute is a legal one related
  to the meaning of the statute and whether the undisputed evidence provides
  a legal basis for the number of charges.

       ¶  11.  Petitioner also argues that he believed he could, in fact,
  be convicted and sentenced on all thirty-one counts and as a habitual
  offender on each of the counts.  However, he faced the same potential
  sentence, life imprisonment, whether he proceeded to trial on one, three,
  or thirty-one counts.  Therefore, he could not have been prejudiced by the
  allegedly duplicative charging, nor could it reasonably have affected his
  decision to plead guilty.  

       ¶  12.  Finally petitioner asserts that the superior court erred in
  failing to decide whether all thirty-one counts could have been maintained
  against him.  He concedes that the State could go forward on the three
  counts to which he pleaded guilty, but argues that the other twenty-eight
  counts were illusory.  As resolution of this issue was not necessary to the
  superior court's decision, the court was not required to address it.  We
  find no error. 

       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.  Sentencing was set for December 21, 1999.  Petitioner failed to appear,
  and an arrest warrant was issued.  He was arrested on the warrant on
  February 8, 2005, and a sentencing hearing was scheduled.