State v. Wargo

State v. Wargo  (97-246); 168 Vt. 231; 719 A.2d 407

[Filed 28-Aug-1998]


       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. 97-246


State of Vermont                             Supreme Court

                                             On Appeal from
    v.                                       District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit

Louis J. Wargo, III                          June Term, 1998


Ronald F. Kilburn, J.

       William H. Sorrell, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for Plaintiff-Appellee.

       Charles S. Martin and Monica Litzelman of Martin & Associates, Barre,
  for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.



       JOHNSON, J.  Defendant appeals from an order of the Chittenden
  District Court determining that it lacked jurisdiction to consider
  defendant's motion to withdraw his guilty plea. The trial court thereafter
  granted defendant's motion for permission to bring this appeal pursuant to
  V.R.A.P. 5.1.  The district court certified the following question for our
  review:  "Where defendant pled guilty to an offense, received a fully
  suspended one-to-five year sentence, and was placed on probation on
  September 13, 1996, does the District Court have jurisdiction to consider
  defendant's January 2, 1997 motion to withdraw his plea, pursuant to
  V.R.Cr.P. 32(d)?"  The certified question is answered in the negative.  We
  conclude that the district court lacked jurisdiction to entertain
  defendant's motion and affirm.

       Defendant pled not guilty to one count of aggravated sexual assault of
  a child, 13 V.S.A. § 3253(a)(8), and to one count of lewd and lascivious
  conduct, 13 V.S.A. § 2601.  Defendant and the State reached a plea
  agreement whereby the sexual assault charge was dismissed and

 

  defendant pled guilty to the charge of lewd and lascivious conduct.  The
  court thereafter accepted defendant's guilty plea and on September 13,
  1996, sentenced defendant to one to five years all suspended and placed him
  on probation.  One of the conditions of defendant's probation was that he
  complete sex offender counseling.

       On December 3, 1996, defendant's probation officer filed a probation
  violation complaint alleging that defendant was rejected from sex offender
  counseling because of his denial of the alleged offense.  On January 2,
  1997, defendant filed a motion with the court seeking to withdraw his
  guilty plea pursuant to V.R.Cr.P. 32(d).  The court orally granted the
  motion on February 10, 1997.  The State moved for reconsideration, and the
  court reversed its prior decision, determining that it lacked jurisdiction
  to consider defendant's motion because he was "in custody under sentence."

       V.R.Cr.P. 32(d) provides in relevant part:

     A motion to withdraw a plea of guilty . . . may be made only by
     a defendant who is not in custody under sentence.  The motion
     must be made prior to or within 30 days after the date of entry of
     judgment, except that a defendant whose sentence does not include
     a term of imprisonment may make the motion at any time. . . . If
     the motion is made after sentence, the court may set aside the
     judgment of conviction and permit withdrawal of the plea only to
     correct manifest injustice.

  (Emphasis added.)  Defendant argues that a person placed on probation
  pursuant to a suspended sentence is not "in custody under sentence" for
  purposes of Rule 32(d).  The State responds that such a defendant is "in
  custody under sentence" and, therefore, may challenge his conviction only
  by filing a petition for post-conviction relief (PCR) pursuant to 13 V.S.A.
  § 7131.

       Defendant first argues that Rule 32(d) is a remedial measure and as
  such should be construed broadly to permit a defendant to withdraw his
  guilty plea even when the defendant may seek relief under the PCR statute. 
  In support of this argument, defendant compares V.R.Cr.P. 32(d) to
  Vermont's wrongful death statute, a remedial measure that is to be
  liberally construed.  See e.g., Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).  The wrongful

 

  death statute was "designed to allay the harsh common law rule denying
  liability due to the death of the victim . . . ."  State v. Oliver, 151 Vt.
  626,629, 563 A.2d 1002, 1004 (1989).  Rule 32(d), by contrast, is a rule of
  criminal procedure, not a remedial statute, and therefore does not merit a
  liberal construction.

       Defendant further argues that our case law defining "custody" for
  purposes of the PCR statute is not dispositive of the meaning of "in
  custody under sentence" for purposes of Rule 32(d).  We disagree.  Both
  Rule 32(d) and the PCR statute employ the identical phrase, "in custody
  under sentence," precisely for the purpose of establishing exclusive
  remedies.  Thus, logic dictates that the same meaning must be attributed to
  the term in both contexts.

       We addressed the relationship between Rule 32(d) motions and PCR
  petitions in State v. Cooley, 135 Vt. 409, 377 A.2d 1386 (1977).  In Cooley
  we determined that the defendant could not withdraw his plea under Rule
  32(d) while he was serving his sentence because, where post-conviction
  relief was available to the defendant under 13 V.S.A. § 7131, the district
  court was without jurisdiction to consider a Rule 32(d) motion.  See id. at
  411, 377 A.2d  at 1387.  This holding was based on our determination that
  Rule 32(d) was not intended to provide a procedure for obtaining
  post-conviction relief separate and apart from the post-conviction relief
  statute. See id.; see also Reporter's Notes, 1980 Amendment to V.R.Cr.P.
  32(d) (Rule 32(d) applicable only when post-conviction relief unavailable).

       Rule 32(d) was subsequently amended to incorporate our holding in
  Cooley by requiring that a defendant not be "in custody under sentence" in
  order to invoke relief under Rule 32(d). The phrase "in custody under
  sentence" is borrowed from the language of the PCR statute and "[i]ts use
  makes clear that the procedure of the rule applies only when the statutory
  relief procedure is inapplicable."  Reporter's Notes, 1980 Amendment to
  V.R.Cr.P. 32(d); see also Cooley, 135 Vt. at 411, 377 A.2d  at 1387 (Rule
  32(d) not intended to provide another post-conviction forum).  We
  therefore conclude that the phrase "in custody under sentence" as used in
  Rule 32(d) has the same meaning as it does under the PCR statute.

 

       Defendant next contends that he is not "in custody under sentence" as
  it is used in Rule 32(d) because his sentence has been suspended and he has
  been placed on probation.  We disagree.  First, a defendant need not be
  incarcerated to be "in custody."  "[A] significant restraint on personal
  liberty" is sufficient to meet the requirement.  In re Stewart, 140 Vt.
  351, 357, 438 A.2d 1106, 1109 (1981); accord In re Liberty, 154 Vt. 643,
  644, 572 A.2d 1381, 1382 (1990).  Mandatory supervision by judicial
  officers coupled with the possibility of imminent incarceration without a
  formal trial and criminal conviction are sufficient restrictions of a
  defendant's liberty to constitute custody.  See, e.g., Liberty, 154 Vt. at
  644, 572 A.2d  at 1382. Both of these factors are present in this case. 
  Defendant's probation was conditioned upon, inter alia, his completion of
  sex-offender counselling, residing where his probation officer directed,
  and having no unsupervised contact with minors.  In the event defendant
  violates his probation, he may be ordered to serve the sentence that has
  been suspended.  See State v. Therrien, 140 Vt. 625, 627-28, 442 A.2d 1299, 1301 (1982).  These restraints on defendant's personal liberty are
  sufficient to constitute custody.

       Defendant argues, however, that even if he is in custody, it is
  custody under a probation warrant, not "under sentence."  Defendant cites
  28 V.S.A. § 203 which provides that:

     (a) Whenever a probationer is placed in the custody of the
     commissioner, the court shall furnish the commissioner with a
     warrant . . . .
     (b) The warrant shall be full authority for the exercise by the
     commissioner of all the rights and powers over and in relation to
     the probationer prescribed by law and by the order of the court.
     (c) The warrant shall be sufficient authority for the apprehension
     and detention of the probationer by the commissioner or by any
     officer acting under his direction at any time or place.

  (Emphasis added.)  We do not find this argument persuasive.  The relevant
  question is not whether defendant is incarcerated or placed on probation,
  but whether the trial court has imposed sentence.  After defendant pled
  guilty, the trial court sentenced him to one to five years and, pursuant to
  section 205, suspended the entire sentence and placed him on probation. 
  Section 205, entitled "Probation," provides that, "[a]fter passing
  sentence, a court may suspend all or

 

  part of the sentence and place the person so sentenced in the care and
  custody of the commissioner . . . ."  Thus, while it is true that defendant
  is in the custody of the commissioner under the probation warrant, the
  probation warrant was issued as part of defendant's sentence. We conclude,
  therefore, that defendant is "in custody under sentence" for purposes of
  Rule 32(d) and the PCR statute.  Accordingly, the proper avenue for
  defendant to challenge his conviction is through a PCR petition.

       The certified question is answered in the negative.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice