State v. Delisle

State v. Delisle (99-197); 171 Vt. 128; 758 A.2d 790 

[Filed 28-Jul-2000]


       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. 99-197


State of Vermont	                         Supreme Court

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

Arthur Edward Delisle	                         May Term, 2000



Dean B. Pineles, J.

Jane Woodruff, Department of State's Attorneys, Montpelier, for 
  Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, 
  Montpelier, for Defendant-Appellant.


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


       SKOGLUND, J.  On November 7, 1998, defendant Arthur Delisle was
  charged with driving  under the influence of intoxicating liquor (DUI), in
  violation of 23 V.S.A. § 1201(a)(2).  The  information alleged that this
  was defendant's third offense, prior DUI convictions having been  entered
  on October 18, 1983, and August 25, 1992.  Defendant moved to strike the
  felony  enhancement allegation based upon the 1983 conviction, claiming
  that the State could not prove that  he had knowingly and voluntarily
  waived his rights in 1983.  The trial court denied the motion, and,  on
  April 16, 1999, defendant entered a conditional guilty plea to DUI, third
  offense, reserving his  right to appeal the denial of his motion.  On
  appeal, defendant argues that the 1983 conviction cannot 

 

  be used as a predicate to the current offense because:  (1) the record of
  the 1983 guilty plea contains  no evidence of a valid waiver of rights; and
  (2) the 1983 conviction occurred more than fifteen years  before the
  current offense was alleged to have occurred.  We affirm.

       In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme
  Court reversed a  judgment of conviction because the trial judge had
  accepted the defendant's guilty plea "without an  affirmative showing that
  it was intelligent and voluntary." Id. at 242.  Boykin's requirements are 
  embodied in V.R.Cr.P. 11, which requires a trial judge to address a
  defendant in open court to ensure  that his plea is intelligent and
  voluntary.  Where a defendant is faced with a misdemeanor charge,  however,
  V.R.Cr.P. 43(c)(2) allows him to plead guilty in writing, as long as he
  signs a waiver form  intended to ensure that his plea is intelligent and
  voluntary.  See Reporter's Notes, V.R.Cr.P. 43. 

       In connection with his motion to strike, defendant presented the
  record of the 1983 case.   According to the record, in 1983, defendant was
  convicted of misdemeanor DUI in absentia and  without counsel, based upon
  his signature to a notice-of-plea-agreement form, and was sentenced to  a
  $150.00 fine.  The record also contains a letter to defendant from the
  court indicating enclosure of  "the approved Plea Agreement and Waiver,"
  but the file contains no signed waiver-of-rights form,  and, of course,
  there was no oral Rule 11 colloquy. 

       Defendant first argues that, because the record of his 1983 guilty
  plea does not contain a  waiver form, or any indication that he
  intelligently and voluntarily waived his rights, his 1983 plea is 
  presumptively invalid and cannot now be used as a predicate for his
  multiple-offense DUI  conviction.  According to defendant, waiver of a
  defendant's constitutional rights cannot be  presumed "from a silent
  record."  Boykin, 395 U.S.  at 243.  The State asserts, in response, that a 
  "presumption of regularity" attached to defendant's 1983 guilty plea when
  his judgment of 

 

  conviction became final, thus shifting the burden to defendant to produce
  evidence showing that the  plea was invalid.  See State v. Brown, 165 Vt.
  79, 86-87, 676 A.2d 350, 355 (1996).  Further, the  State argues, defendant
  has not met his burden.

       In Parke v. Raley, 506 U.S. 20, 23 (1992), the defendant pled guilty
  to burglary in 1979 and  1981, and in 1986, was charged with both robbery
  and being a repeat felony offender.   He moved to  suppress the prior
  convictions, arguing that they were invalid under Boykin because the
  records did  not contain transcripts of the plea proceedings, and thus the
  state could not prove that his pleas were  intelligent and voluntary. 

       In ruling on the defendant's motion, the Kentucky state trial court
  applied the burden-shifting  procedures set forth in Dunn v. Commonwealth,
  703 S.W.2d 874, 876 (Ky. 1985).  Under Dunn,  when a defendant collaterally
  attacked a prior conviction, the state was required to prove the  existence
  of the judgment of conviction.  Once the state did so, a "presumption of
  regularity"  attached, and the burden shifted back to the defendant to
  produce evidence that his rights were  infringed or some procedural
  irregularity occurred in the prior proceeding.  See Dunn, 703 S.W.2d  at 
  876.  If the defendant rebutted the presumption, the burden again shifted
  to the government to show  that the defendant's rights were protected in
  the prior proceeding.  See id.

       In Raley, the state trial court held a hearing and concluded, based on
  the evidence presented,  that the defendant's prior pleas were intelligent
  and voluntary.  Thus, the court denied the defendant's  motion.  The
  defendant entered a conditional guilty plea, reserving his right to appeal
  the denial of  his motion.  The appellate court affirmed, concluding that,
  under the totality of the circumstances,  both pleas were intelligent and
  voluntary.  The state supreme court denied 

 

  discretionary review.  The defendant then filed a federal habeas petition,
  arguing that Dunn's burden-shifting scheme violated his due process rights
  under the federal Constitution.  

       The federal district court concluded that the defendant's pleas were
  knowing and voluntary,  and denied his habeas corpus petition.  The Court
  of Appeals for the Sixth Circuit reversed in part,  relying on its
  then-recent decision in Dunn v. Simmons, 877 F.2d 1275 (6th Cir. 1989).  In
  Simmons,  the Sixth Circuit held that, when no transcript of the prior plea
  proceeding exists, the presumption of  regularity does not attach to the
  judgment of guilt, and the prosecution has the burden of proving the 
  validity of the plea.  See Simmons, 877 F.2d  at 1277.  Further, when the
  prosecution seeks to  demonstrate the regularity of the prior proceeding
  with extrarecord evidence, that evidence must be  "clear and convincing." 
  Id.

       In Raley, the Sixth Circuit affirmed the district court's decision
  with regard to the 1979 plea,  but reversed with regard to the 1981 plea. 
  Because Simmons had been issued after the state trial  court's hearing in
  Raley, the Sixth Circuit remanded to give the state an opportunity to meet
  its  burden under Simmons.  The state appealed, and the United States
  Supreme Court reversed.

       The Supreme Court first distinguished Boykin, which involved direct
  review of a conviction  allegedly based upon an uninformed guilty plea.  
  Raley, on the other hand, involved collateral  review of a final judgment
  of conviction.  According to the Court, "[t]o import Boykin's presumption 
  of invalidity into this very different context would, in our view,
  improperly ignore another  presumption deeply rooted in our jurisprudence: 
  the 'presumption of regularity' that attaches to final  judgments, even
  when the question is waiver of constitutional rights."  Raley, 506 U.S.  at
  29  (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938)).  Further,
  the Court stated:

 

    On collateral review, we think it defies logic to presume from the 
    mere unavailability of a transcript (assuming no allegation that
    the  unavailability is due to governmental misconduct) that the
    defendant  was not advised of his rights.  In this situation,
    Boykin does not  prohibit a state court from presuming, at least
    initially, that a final  judgment of conviction offered for
    purposes of sentence enhancement  was validly obtained.

  Id. at 30.  Thus, the Court concluded:  "even when a collateral attack on a
  final conviction rests on  constitutional grounds, the presumption of
  regularity that attaches to final judgments makes it  appropriate to assign
  a proof burden to the defendant," id. at 31, and held that "the Due Process 
  Clause permits a State to impose a burden of production on a recidivism
  defendant who challenges  the validity of a prior conviction under Boykin,"
  id. at 34.

       We applied Raley in Brown, 165 Vt. at 87-88, 676 A.2d  at 355-56. 
  There, the defendant was  convicted of, and sentenced for, DUI, third
  offense, in 1993, having previously pled guilty to DUI in  1985 and 1992.
  (FN1)  The defendant challenged his sentence, arguing that the State could
  not prove  the validity of his 1985 guilty plea, and therefore it could not
  be used in the present proceeding to  enhance his sentence.  Specifically,
  according to the defendant, the State could not prove that his  guilty plea
  was valid under our decision in State v. DeRosa, 161 Vt. 78, 633 A.2d 277
  (1993).

       Trial judges may deny appointment of counsel because a defendant is
  not needy, because a  defendant has validly waived the right to counsel, or
  because the judge will not impose a sentence of  imprisonment.  See Brown,
  165 Vt. at 86, 676 A.2d  at 354.  In DeRosa, we held that, when a judge 
  denies appointment of counsel to an indigent defendant because the judge
  will not impose a sentence  of imprisonment, the judge may not subsequently
  impose a conditionally suspended 

 

  sentence and probation.  See 161 Vt. at 81, 633 A.2d  at 279.  In Brown, in
  1985, the defendant had  entered a pro se guilty plea to a charge of DUI
  and received a suspended zero-to-nine-month  sentence.  In connection with
  his 1993 sentence challenge, the defendant produced the record of the  1985
  conviction, which indicated that counsel had been denied, but which did not
  provide the reason  for the denial.  The defendant argued that, because the
  record was silent as to the reason counsel was  denied, the burden shifted
  to the prosecution "to establish that counsel was properly denied in the 
  earlier proceeding."  Brown, 165 Vt. at 86, 676 A.2d  at 355.  We disagreed,
  finding "the Supreme  Court's reasoning in Parke [v. Raley] persuasive,"
  and stating:

    Although defendants may have been denied counsel because the trial 
    judge did not intend to impose a sentence of incarceration, it is 
    equally plausible that counsel was denied because defendants were 
    not needy. Given this ambiguity in the records of the prior 
    convictions, defendants were obliged to show that counsel was 
    improperly denied.

  Id. at 87, 676 A.2d  at 355 (emphasis in original).  We clarified that, in
  order to meet this burden, 

    [a] defendant need not produce court records that affirmatively
    prove  that counsel was denied in violation of DeRosa if no such
    records  exist. A defendant could testify that the trial judge,
    when denying  counsel, had promised not to impose a sentence of
    incarceration, or  that he or she was indigent at the time but was
    never questioned about  financial resources. To challenge the use
    of a prior conviction for  sentence enhancement purposes based on
    DeRosa, however, a  defendant must show that counsel was denied
    improperly. As  defendants have not met this burden, we affirm
    their convictions.  


  Id. at 88, 676 A.2d  at 355-56.	


       Here, defendant is not arguing that his 1983 plea was not knowing and
  voluntary; rather, he is  arguing that there is no evidence, and thus the
  State cannot prove, that his 1983 plea was knowing  and voluntary.  Based
  on Raley and Brown, however, he must do more than point to an ambiguous 

 

  or incomplete record.  He must produce evidence that his prior plea was
  invalid.  Defendant has not  met this burden.  He presented no affirmative
  evidence, such as testimony or an affidavit indicating  that he did not
  receive, sign, or mail back a waiver-of-rights form in connection with his
  1983 plea. (FN2)  Instead, he relies on his argument that, once he points
  to an incomplete record, the burden shifts to  the State to prove the
  validity of the prior plea.  We rejected this argument in Brown, and we do
  so  today as well. (FN3)
  
       Defendant next argues that he cannot be convicted of DUI, third
  offense, because more than  fifteen years elapsed between his October 18,
  1983, DUI conviction, and November 7, 1998, the date  the current offense
  was allegedly committed. 

       As a preliminary matter, the State argues that defendant has waived
  the right to raise this  issue because he did not raise it before the trial
  court.  Defendant, on the other hand, argues that  the State's information
  was jurisdictionally defective because it included the purportedly invalid
  1983  conviction as a predicate offense, and therefore he can raise the
  issue on appeal.  We do not reach  this issue, however, because we conclude
  that, even if defendant has waived his right to raise it, his  1983
  conviction was valid.

       Prior to July 1, 1991, 23 V.S.A. § 1210(d) provided that, in order to
  be sentenced as a second  offender, a person had to have been convicted of
  DUI once within five years of his or her current  conviction; and, in order
  to be sentenced as a third offender, a person had to have been convicted of 
  DUI twice within fifteen years of his or her current conviction.  See 23
  V.S.A. § 1210(d) (1987), 

 

  amended by 1991, No. 55, § 9; State v. LeBlanc, No. 99-182, slip op. at  3
  (Vt. July 14, 2000).  In  1991, the Legislature amended § 1210(d) and
  deleted the five-year and fifteen-year forgiveness  periods.  In amending §
  1210(d), the Legislature also added a "savings clause" that provides

    that it is the intention of the general assembly that section 9 of
    this  act, which amended this section by eliminating the 5-year
    and 15-year  forgiveness periods, shall apply as follows:  "(4)
    With respect to  section 1210 of Title 23, the five-year
    forgiveness period between  convictions shall be considered a
    right which has accrued to the  operator if the first conviction
    occurred at any time prior to July 1,  1991.

         "(5) With respect to section 1210 of Title 23, the 15-year 
    forgiveness period used to determine third convictions shall be 
    considered a right [that] has accrued to the operator if the prior 
    convictions occurred at any time prior to July 1, 1991."

  1991, No. 55, §§ 19(4), (5) (emphasis added).

       Defendant argues that, because he was convicted prior to 1991, and
  because more than fifteen  years elapsed between his 1983 and 1998
  convictions, the fifteen-year forgiveness period applies and  he can be
  sentenced only as a second offender.	

       "In construing a statute, 'our principal goal is to effectuate the
  intent of the Legislature.'  In  determining legislative intent, we begin
  with the plain meaning of the statutory language.  If  legislative intent
  is clear from the language, we enforce the statute 'according to its terms
  without  resorting to statutory construction.'"  LeBlanc, slip op. at 4
  (quoting Tarrant v. Dep't of Taxes, 169  Vt. 189, 197, 733 A.2d 733, 739
  (1999)) (internal citations omitted).  "Furthermore, we 'presume that  all
  language in a statute was drafted advisedly, and that the plain ordinary
  meaning of the language  used was intended.'"  Id. at 4-5 (quoting
  Committee to Save Bishop's House v. Medical Center, 137  Vt. 142, 153, 400 A.2d 1015, 1021 (1979)).

 

       Here, under the plain language of the savings clause, the fifteen-year
  forgiveness period  applies if both prior convictions occurred before 1991. 
  If the Legislature intended for the fifteen-year forgiveness period to
  apply when only one prior conviction occurred before 1991, "it knew how  to
  so specify."  Id. at 5.   Indeed, the savings clause retained the five-year
  forgiveness period to  determine second offenses if the first conviction
  occurred prior to 1991.  Consequently, because only  one of defendant's
  prior convictions occurred before 1991, he has no right to the fifteen-year 
  forgiveness period.  As we stated in LeBlanc:  "after the 1991 amendment,
  defendants who had two  DUI convictions before 1991 may seek to avail
  themselves of the fifteen-year forgiveness period to  determine the penalty
  when convicted of a third offense.  With that limited exception, there is
  no  longer any forgiveness period for third or subsequent DUI convictions." 
  Id. at 7 (emphasis added).

       Affirmed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN3.  Although there were two defendants in Brown, their circumstances were
  factually identical.  Thus, for purposes of simplicity, we refer solely to
  Defendant Brown's case.

FN2.  Even if he had presented such evidence, the trial court could reject
  it as not credible.

FN3.  Defendant does not argue that the State has failed to meet its initial
  burden of proving the  existence of the 1983 conviction.