State v. Currier

ENTRY_ORDER.94-097; 162 Vt. 626; 649 A.2d 246

[Filed:  06-Sep-1994]


                           ENTRY ORDER

                 SUPREME COURT DOCKET NO. 94-097

                         JUNE TERM, 1994


 State of Vermont                     }   APPEALED FROM:
                                      }
                                      }
      v.                              }   District Court of Vermont,
                                      }   Unit No. 2, Franklin Circuit          
                                      }
                                      }
 William Currier                      }   DOCKET NO. 1360/61/62-11-93FrCr

        In the above entitled cause the Clerk will enter:

    The motion filed by the State of Vermont to dismiss the defendant's
 automatic appeal pursuant to Rule 3 of the Vermont Rules of Appellate
 Procedure is denied.  Nothing in the record indicates whether the
 defendant's waiver was knowing and intelligent.  Accordingly, this matter
 is remanded to determine these issues. 

     Defendant was sentenced to life imprisonment on January 31, 1994. 
 Shortly thereafter, the defendant sent a letter to the trial court which
 stated:  "I do not wish to appeal my criminal case, which resulted in life
 imprisonment.  Thank you anyways."  The court scheduled a hearing on the
 issue. (FN1)   At the hearing, the court asked the defendant whether he still
 wanted to give up his right to have the case reviewed by the Supreme Court.
 Defendant responded, "I don't have any comment."  The only matter
 conclusively established at the hearing was that the defendant signed the
 letter after receiving the advice of counsel.  No attempt was made to
 determine whether the waiver was knowing and intelligent. 

    Rule 3(b) of the Vermont Rules of Appellate Procedure provides that in
 any criminal case resulting in life imprisonment, appeal to the Supreme
 Court shall be automatic unless the defendant with the advice of counsel
 has waived such appeal in writing.   It is clear that the defendant sent a
 letter to the trial court relinquishing his right to appeal, and that
 defendant received the advice of counsel, but acted contrary to that
 advice.  Our inquiry does not end here, however.  A defendant will not be
 permitted to forego an appeal unless the trial court determines that the
 defendant's decision was knowingly and intelligently made.  Franz v. State,
 754 S.W.2d 839, 843 (Ark. 1988). 

    The standard to be used by a trial court in determining whether a
 decision to waive appeal is knowing and intelligent is similar to the
 standard used to determine competency to stand trial.  Id.  The defendant
 is competent if he possesses sufficient capacity to appreciate his position
 and make rational choices with respect to continuing or abandoning further
 litigation.  Id., citing Rees v. Peyton, 384 U.S. 312, 314 (1966).  The
 focus should be upon not only the defendant's ability to understand the
 basic issue but also upon his ability to resolve it knowingly and
 voluntarily.  Franz, 754 S.W.2d  at 843.  Additionally, the court must
 ensure, through an appropriate colloquy, that defendant possesses the
 relevant information upon which to base an informed decision and has had
 the full benefit of the advice of counsel. 

    Because no attempt was made to determine whether defendant's waiver was
 knowing and intelligent, the State's motion to dismiss is denied.  The
 State may 

 

 renew the motion if following new proceedings in the trial court,
 it believes a valid waiver has been made.  This matter is remanded to the
 trial court for further proceedings consistent with this order. 

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    ALLEN, C.J., concurring in part, dissenting in part.   I agree that the
 motion filed by the State of Vermont should be denied, but do not believe a
 remand is necessary.  This Court is required by V.R.A.P. 3(b) to review the
 record in the interests of justice whenever a life sentence is imposed. 
 This obligation can only be avoided when the defendant with his counsel's
 advice waives the appeal.  The waiver here was contrary to counsel's advice
 and our review is required. 

    I would recommend that the Advisory Committee on the Rules of Criminal
 Procedure be requested to review V.R.A.P. 3(b) with respect to the issues
 presented in this appeal and to make recommendations for an amendment to
 assure that automatic appeals reach this Court in a timely fashion. 


                              

                                   BY THE COURT:

                                                                               

Concurring and dissenting:         _______________________________________
                                   Ernest W. Gibson III, Associate Justice

________________________________   _______________________________________
Frederic W. Allen, Chief Justice   John A. Dooley, Associate Justice

                                   _______________________________________
                                   James L. Morse, Associate Justice

                                   _______________________________________
                                   Denise R. Johnson, Associate Justice




[ ] Publish

[ ] Do Not Publish

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                              Footnotes

FN1.  The defendant originally sent this letter to the Franklin Family 
 Court; the family court subsequently forwarded this letter to the Franklin 
 District Court.