In re Hunt

IN_RE_HUNT.93-397; 163 Vt 383; 658 A.2d 919

[Filed 27-Jan-1995]

[Motion for Reargument Denied 16-Mar-1995]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 

                                No. 93-397


In re Gordon Hunt                                Supreme Court

                                                 On Appeal from
                                                 Lamoille Superior Court
                                                 June Term, 1994


Dean B. Pineles, J.

Robert Appel, Defender General, and William A. Nelson, Appellate Defender,
 Montpelier, for petitioner-appellant 

Gary S. Kessler, Supervising Appellate Prosecutor, Montpelier, and Terry
 Trono, Washington County State's Attorney, Barre, for respondent-appellee 


PRESENT: Dooley and Johnson, JJ., and Valente and Jenkins, Sup. J., and
         Fisher, D.J., Specially Assigned 



    JOHNSON, J.   Petitioner was convicted of first-degree murder and
sentenced to a term of thirty years to life imprisonment.  He appeals from
the superior court's denial of his petition for post-conviction relief, in
which he argued that he was denied his due process right to an impartial
tribunal because former Associate Justice William Hill manipulated his case
on the basis of the justice's friendship with former Assistant Judge Jane
Wheel.  We affirm the dismissal of the petition, but on different grounds
than those relied on by the superior court. 

                                    I.

    The relevant facts, described more fully in In re Hill, 152 Vt. 548,
562-70, 568 A.2d 361, 369-373 (1989), are as follows.  Petitioner was charged with
first-degree murder in 1982. He negotiated a plea bargain in which he agreed
to plead guilty to second-degree murder in exchange for a minimum term not to
exceed ten years to life imprisonment.  Although the presiding judge would
have accepted the plea bargain, both assistant judges wanted to reject the
agreement.  The presiding judge did not challenge the assistant judges'
authority to take part in the decision, and, accordingly, noted upon the
record that "the judgement of the Court is that the plea agreement as
proposed is rejected."  Petitioner took an interlocutory appeal to this
Court, arguing that lay assistant judges lack authority to overrule the
presiding judge on whether to accept or reject a plea bargain.  On May 11,
1984, Justice Hill voted with the majority of this Court in a 4-1 decision
that affirmed the order rejecting the plea agreement.  State v. Hunt, 145 Vt.
34, 485 A.2d 109 (1984) (hereinafter Hunt I). 

    Shortly after remand to the trial court, petitioner moved for the
disqualification of one of the assistant judges, Jane Wheel, when he learned
that she had attempted to influence the outcome of the interlocutory appeal
by pressuring the Attorney General to support the assistant judges' position
in the matter.  The presiding judge granted the motion.  Judge Wheel then
filed a petition for extraordinary relief, addressed to Justice Hill,
challenging her disqualification. Justice Hill stayed the presiding judge's
order, and, in January 1985, this Court vacated the order disqualifying Judge
Wheel but transferred venue in petitioner's case from the Chittenden Superior
Court to the Lamoille Superior Court.  Petitioner filed a motion for
reconsideration, which was denied by a 4-1 vote, with Justice Hill in the
majority. 

    In April 1985, petitioner was tried and convicted of first-degree murder
in the Lamoille Superior Court.  He appealed the conviction, and, in March
1987, while the appeal was pending, 

 

he moved for summary reversal of the conviction, charging that Justice Hill
had improperly manipulated his case. The motion alleged that Justice Hill had
conspired with Judge Wheel, based on his personal relationship with her, to
have his case moved from the Chittenden Superior Court. 

    At the time the motion was heard, charges of misconduct against Justice
Hill were pending in a proceeding before the Judicial Conduct Board.  In
March 1988, a panel of the Board issued a report finding, among other things,
insufficient proof of allegations that Justice Hill and Judge Wheel
improperly discussed issues pending in the Hunt I appeal, or that Justice
Hill conspired with Judge Wheel to bring about a change in venue in
petitioner's case.  The Board adopted the panel's report. 

    Four months later, in September 1988, this Court issued a one-line entry
order denying petitioner's motion for summary reversal.  Shortly thereafter,
this Court affirmed petitioner's conviction.  State v. Hunt, 150 Vt. 483, 555 A.2d 369 (1988) (hereinafter Hunt II).  In that case, we rejected
petitioner's argument that the change of venue denied him a fair trial,
concluding that he had failed to demonstrate prejudice resulting from the
venue change. 

    In June 1992, petitioner filed the instant complaint, in which he argues
that he was denied his due process right to an impartial tribunal in the
proceedings culminating in both the Hunt I decision and this Court's January
1985 order transferring venue in his case.  He requested that the superior
court vacate his conviction and "grant such other and further relief as it
deems proper and equitable under the circumstances."  At a status conference,
the superior court asked the parties to brief the question of whether this
Court's September 1988 order denying petitioner's motion for summary reversal
constituted a decision on the merits, thereby barring 

 

consideration of petitioner's post-conviction relief claims.  After hearing
argument from the parties, the court dismissed the petition based on its
conclusion that petitioner was precluded from relitigating his claims for
relief because this Court had already considered and rejected these claims in
Hunt II and in its order denying summary reversal. 

    On appeal, petitioner argues that (1) because he has never had an
opportunity to prove the allegations raised in his petition, neither Hunt II
nor this Court's order denying summary reversal preclude him from
collaterally attacking his conviction on the ground that Justice Hill and
Judge Wheel corruptly manipulated his case; and (2) Justice Hill's
participation in Hunt I and the decision transferring venue in petitioner's
trial constitutes a "structural" defect that is not subject to harmless-error
analysis.  Petitioner's position is that Justice Hill's contacts with, and
efforts in support of, Judge Wheel denied his right to due process by
creating, at minimum, the appearance that Justice Hill was biased, thereby
requiring reversal of his conviction. 

                                   II.

      We conclude that, even assuming Hunt I and the venue-change order were
tainted by Justice Hill's conduct, petitioner has already received the only
available remedy -- a fair trial. Accordingly, we affirm the dismissal of his
petition without addressing his first argument.  See In re Graziani, 156 Vt.
278, 280, 591 A.2d 91, 93 (1991) (decision of trial court may be affirmed on
any legal ground, even if the trial court's ruling is based upon another
ground). 

                   A.  A New Trial Is Not an Appropriate Remedy

    Petitioner argues that Justice Hill's participation in Hunt I and the
venue-change order amounted to "structural error" that tainted his ensuing
conviction.  He concedes that he received a fair trial, albeit in a different
venue than he would have preferred.  Therefore, if petitioner is 

 

to prevail on this argument, he must show that the improper conduct of
Justice Hill on appeal so seriously affected the entire judicial process that
it is necessary to ignore the fair trial he received to vindicate the
"fundamental values of our judicial system and our society as a whole." See
Rose v. Mitchell, 443 U.S. 545, 556 (1979) (because discrimination on basis
of race in selection of grand jury strikes at fundamental values of judicial
system and society as whole, reversal of ensuing conviction is warranted
without inquiry whether defendant was prejudiced by discrimination). 

    The United States Supreme Court has reversed convictions, without any
consideration of whether the defendant was prejudiced by a claimed
constitutional error, when the error necessarily cast doubt on the fairness
of the defendant's trial.  Rose v. Clark, 478 U.S. 570, 577, 592 (1986)
(majority and dissent agree that automatic reversal required when
constitutional errors "necessarily render a trial fundamentally unfair"). 
For example, the Court has refused to consider whether errors were harmless
in cases involving a biased trial judge, the total deprivation of the right
to counsel at trial, the right to self-representation at trial, the right to
a public trial, and the unlawful exclusion of members of the defendant's race
from a grand jury. Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (citing
cases).   Each of the cases in which the Court has refused to apply
harmless-error analysis involved a "structural defect" that affected the
framework in which the trial proceeded, and thus, prevented the trial from
serving its function as a vehicle for determining the guilt or innocence of
the defendant.  Id.; see Clark, 478 U.S.  at 578, n. 6 (errors that "either
aborted the basic trial process, or denied it altogether" could never be
harmless) (citations omitted). 

    Petitioner relies principally on the decision in Vasquez, 474 U.S. 254
(1991) for the 

 

proposition that judicial bias not directly affecting the trial should be
treated as a structural error that requires reversal of the conviction
without any consideration of whether the defendant was prejudiced. In
Vasquez, the Court continued a long line of precedent holding that racial
discrimination in the grand jury process invalidates a conviction, even if
the conviction is obtained after an error-free trial.  474 U.S. at 260Ä61. 
The Court reasoned that the power vested in the grand jury to frame the
indictment, to charge a greater or lesser number of offenses, and to decide
the seriousness of the charges, including whether the offenses are capital or
noncapital, affects the nature or very existence of the subsequent trial. 
Id. at 263.  According to the Court, because racial discrimination in the
selection of a grand jury "calls into question the objectivity of those
charged with bringing a defendant to judgment, a reviewing court can neither
indulge a presumption of regularity nor evaluate the resulting harm."  Id. 

    In this case, the claims of judicial bias in Hunt I and the venue-change
order are wholly unrelated to petitioner's trial or the framing of the
charges against him.  Therefore, Vasquez does not compel us to vacate the
conviction.  As we stated in State v. Hohman, 138 Vt. 502, 506, 420 A.2d 852,
855 (1980), rev'd on other grounds, Jones v. Shea, 148 Vt. 307, 309, 532 A.2d 571, 572 (1987) wherein we required a showing of prejudice to reverse a
conviction based on a claim of prosecutorial misconduct, "[u]nethical
conduct, however worthy of censure, does not necessarily deprive a defendant
of a fair trial, and is therefore distinguishable from prejudicial error."  
Given that petitioner received a full opportunity to defend against the
crimes for which he was charged, and he "was tried by a fairly selected,
impartial jury, supervised by an impartial judge," Clark, 478 U.S.  at 579, we
decline to order that the process be repeated. We would belittle the
fundamental right to a fair trial if we were to determine that, under the

 

circumstances of this case, a fair trial is an insufficient remedy.  Cf.
Government of Virgin Islands V. Scotland, 614 F.2d 360, 365 (3d Cir. 1980)
(no rational basis for holding that jury trial is sufficient for defendant
who has not been offered plea bargain and insufficient for one who has).  In
short, a new trial is not an appropriate remedy because petitioner already
received a fair trial that was untainted by the alleged unethical conduct. 

             B. Enforcement of the Plea Bargain is Not an Appropriate Remedy

    Given that petitioner was convicted after receiving a fair trial, the
only other potential remedy for the alleged judicial misconduct is
enforcement of the plea bargain reached with the state's attorney in
Chittenden County.  That remedy is not an appropriate remedy, however,
because even if we were to vacate Hunt I,(FN1)  petitioner is still left with
a rejected, and thus unenforceable, agreement.  See United States v. Savage,
978 F.2d 1136, 1138 (9th Cir. 1992) ("neither the defendant nor the
government is bound by a plea agreement until it is approved by the court");
United States v. Gonzalez, 918 F.2d 1129, 1133 (3d Cir. 1990) ("It is
axiomatic that a plea agreement is neither binding nor enforceable until it
is accepted in open court."); United States v. McGovern, 822 F.2d 739, 744,
746 (8th Cir. 1987) (defendant is not justified in relying on terms of plea
agreement until trial judge approves it and accepts guilty plea); cf. State
v. Delisle, ___ Vt. ___, ___, 648 A.2d 632, 636 (1994) ("court is not bound
by a plea agreement unless it informs the defendant that the strictest
judgment and sentence it will impose is the one provided in the agreement"). 
Petitioner does not allege that the trial court's decision to reject the plea
bargain resulted from unethical conduct.  Further, assuming Hunt I was
tainted, petitioner can only speculate as to what the outcome of that
decision and his plea 

 

agreement would have been had Justice Hill's influence not been present.  The
fact remains that the original plea bargain was never accepted.  We cannot
return to petitioner that which he never received or had a right to receive. 

    Because petitioner acquired no vested interest in the terms of the plea
bargain, there is nothing to enforce and no showing of prejudice.(FN2)  As
the United States Supreme Court stated in a unanimous decision: "A plea
bargain standing alone is without constitutional significance; in itself it
is a mere executory agreement which, until embodied in the judgment of a
court, does not deprive an accused of liberty or any other constitutionally
protected interest."  Mabry v. Johnson, 467 U.S. 504, 507 (1984).  It is the
ensuing conviction, not the plea bargain itself, that gives rise to the
deprivation of the defendant's liberty.  Id. at 508.  Accordingly, when a
plea agreement is withdrawn or rejected, and the defendant then pleads guilty
pursuant to a new agreement or pleads not guilty and receives a fair trial,
that defendant has not been deprived of his liberty in any fundamentally
unfair way.  See Id. at 511; People v. Navarroli, 521 N.E.2d 891, 894, 896
(Ill. 1988) (State's repudiation of plea agreement did not deprive defendant
of any constitutionally protected interest because he still had option of
pleading not guilty and proceeding to trial). 

 

    Nor can petitioner claim that he is somehow entitled to specific
performance of the plea bargain as the result of the venue-change order.  He
had no vested interest in having his trial held in Chittenden County, which
was not the situs of the murder.  Indeed, this Court has already determined
that petitioner was not prejudiced by the venue-change order.  See Hunt II,
150 Vt. at 491, 555 A.2d  at 374.  Because petitioner cannot obtain specific
performance of the rejected plea bargain, and because he has already been
given a fair trial, he has received the only remedy that this Court can offer
him.  Therefore, we affirm the superior court's dismissal of his petition for
post-conviction relief. 

    Affirmed.

         FOR THE COURT:



         ____________________________
         Associate Justice



-----------------------------------------------------------------------------
                              Footnotes


FN1.   Petitioner has not asked us, and we are not prepared, to address the
 legal issue raised in Hunt I, which we consider to be settled precedent. 


FN2.   In State v. Hohman, 138 Vt. 502, 420 A.2d 852 (1980), a prosecutor who
 was running for reelection promised that he would vigorously reprosecute a
 defendant whose murder conviction had been overturned.  We stated that the
 prosecutor's unethical conduct clearly prejudiced the defendant at the plea
 bargaining stage of the proceedings.  Id. at 507, 420 A.2d  at 855.  We held
 that reversal of the defendant's conviction was not warranted, however,
 because he could not have negotiated a plea bargain to an offense lower than
 manslaughter, the offense for which he was eventually convicted.  Id.  In
 dictum, this Court stated that if the defendant had been convicted of
 second-degree murder, "we would be required to reverse the conviction."  Id. 
 Assuming this analysis is correct, but see Weatherford v. Bursey , 429 U.S. 545, 561 (1977) (there is "no constitutional right to plea bargain"), the
 alleged prejudice in this case, unlike in Hohman, did not deny petitioner an
 opportunity to plea bargain; on the contrary, nothing prevented petitioner
 and the State from negotiating another plea agreement and presenting it to
 the Lamoille Superior Court.