State v. Boskind

Annotate this Case
State v. Boskind (98-470 & 99-335); 174 Vt. 184; 807 A.2d 358

[Filed 28-Aug-2002]
[Motion to Reconsider & Clarify Granted 28-Aug-2002]

                                 ENTRY ORDER

                  SUPREME COURT DOCKET NOS. 98-470 & 99-335

                              AUGUST TERM, 2002


  State of Vermont 	               }   	 APPEALED FROM:
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 2, Chittenden Circuit
  Jethro S. Boskind	               }
                                       }	DOCKET NO. 1351-3-98 Cncr

  State of Vermont	               }
                                       }
      v.	                       }
                                       }
  John S. Boardman	               }	DOCKET NO. 912-2-98 Cncr

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

       The State's June 6, 2002 motion to reconsider and clarify the opinions
  in the above appeal issued on May 24, 2002 is granted.  With respect to the
  majority slip opinion, footnote five on page ten and the last five words of
  the third full sentence on page nine, beginning with the word "or," are
  stricken.  With respect to the dissenting slip opinion, the last sentence
  of the full paragraph beginning on page six and extending to page seven, as
  well as footnote two and the citation following the last sentence of the
  paragraph, are also stricken.  In all other respects, the opinions remain
  the same.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


------------------------------------------------------------------------------

State v. Boskind (98-470) & State v. Boardman (99-335)

[Filed May 24-2002]


       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.


                            Nos.  98-470 & 99-335


State of Vermont	                         Supreme Court

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

Jethro S. Boskind	                         March Term, 2000


State of Vermont

     v.

John S. Boardman


Brian L. Burgess, J.  (98-470)
Amy M. Davenport, J.  (99-335)


Jane Woodruff, Department of State's Attorneys, Montpelier (98-470), and 
  Lauren Bowerman, Chittenden County State's Attorney, Burlington (99-335), 
  for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, 
  Montpelier (98-470), and Paul D. Jarvis of Jarvis and Kaplan, Burlington 
  (99-335), for Defendants-Appellants.


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


       AMESTOY, C.J.   In these consolidated cases, defendants appeal their
  enhanced convictions  for driving while intoxicated.  The appeals present
  four significant issues: (1) whether a defendant  can challenge a prior
  conviction used to enhance a sentence when the challenge is based on a
  claim  other than a violation of right to counsel; (2) when a defendant has
  a right to challenge a prior 

 

  conviction the State intends to rely upon for sentence enhancement, whether
  the proper forum for  exercising that right is the sentencing proceeding in
  district court or a post-conviction relief (PCR)  proceeding in superior
  court; (3) when the appropriate remedy for a defendant's challenge to a 
  predicate conviction is governed by the post conviction relief statute (13
  V.S.A. § 7131), whether a  defendant who challenges the prior conviction is
  "in custody under sentence" within the meaning of  § 7131 when the
  defendant is no longer in custody for the conviction being challenged; (4)
  when a  defendant challenges a prior conviction used for enhancement
  purposes on the basis of a failure to  comply with V.R.Cr.P. 11, whether
  the burden of proof to demonstrate compliance shifts to the State  where
  the defendant's evidence raises a substantial question about whether the
  defendant's plea to  the challenged conviction was made in compliance with
  V.R.Cr.P. 11.

       We hold that a defendant's right to challenge a prior conviction that
  the State intends to use  to enhance a sentence is not limited solely to a
  claim that the conviction was obtained in violation of  right to counsel. 
  We further determine that the challenge must take place in superior court
  pursuant  to Vermont's post conviction relief statute and that a defendant
  is "in custody under sentence" for  purposes of invoking the jurisdictional
  requirement of § 7131 where the defendant is challenging his  current
  sentence by attacking the constitutionality of a prior conviction used to
  enhance the  defendant's current sentence.  We also conclude that the
  burden of proof remains on the defendant  where the defendant's challenge
  to the prior conviction is based upon a claim that the trial court did  not
  comply with V.R.Cr.P. 11 in accepting defendant's plea to the challenged
  predicate conviction.

       Accordingly, we affirm the enhanced sentences imposed upon the
  respective defendants and  hold that defendants, should they challenge
  convictions on the basis of a claim that the trial court did 

 

  not comply with V.R.Cr.P. 11, must do so pursuant to 13 V.S.A. § 7131 where
  they have the burden  to show that the trial court did not substantially
  comply with V.R.Cr.P. 11 in their pleas and that this  noncompliance
  prejudiced them.

       In February 1998, defendants John Boardman and Jethro Boskind were
  each separately  arrested for DUI and charged with violating 23 V.S.A. §
  1201(a)(2) ("A person shall not operate,  attempt to operate, or be in
  actual physical control of any vehicle on a highway . . . when the person 
  is under the influence of intoxicating liquor.").  For each defendant, the
  State sought the enhanced  penalty for a DUI-third offense pursuant to 23
  V.S.A. § 1210(d) ("A person convicted of violating  section 1201 of this
  title who has twice been convicted of violation of that section shall be
  fined not  more than $2,500.00 or imprisoned not more than five years, or
  both.").  The State alleged that  defendant Boardman had been previously
  convicted of DUI in 1991 and 1992, and that defendant  Boskind had been
  previously convicted of DUI in 1988 and 1991.  

       Defendant Boardman moved to dismiss the DUI-third offense enhancement,
  claiming that his  prior DUI convictions, in each of which he was
  represented by counsel and pled guilty, were  products of unconstitutional
  guilty pleas because of failure to comply with V.R.Cr.P. 11.  Defendant 
  Boskind moved to dismiss his enhancement, claiming that the 1991
  conviction, in which he was  represented by counsel, was the product of an
  unconstitutional nolo contendere plea because the  court did not comply
  with V.R.Cr.P. 11. (FN1)

 

       The district court denied defendant Boardman's motion to dismiss his
  prior convictions,  precluding his collateral attack on the sentence
  enhancement, because both of his prior convictions  were counseled and had
  not been appealed, litigated in post-conviction proceedings, or withdrawn.  
  Defendant Boardman pled guilty to the offense pursuant to a conditional
  plea agreement, by which  he was sentenced to 2-to-4 years of supervised
  community service, but reserved the right to appeal  from the denial of his
  motion to dismiss the enhancement allegation.  After the court denied his 
  motion to dismiss his prior conviction, defendant Boskind also pled guilty
  to the offense pursuant to  a conditional plea agreement, by which he was
  sentenced to a term of 1-to-5 years, and similarly  preserved his right to
  appeal.

       Both trial courts relied on Custis v. United States, 511 U.S. 485
  (1994), in denying each  defendant's motion.  In Custis, the United States
  Supreme Court considered the availability, during  federal sentencing
  hearings, of collateral attacks on prior convictions that serve as the
  basis for  enhancement under the Armed Career Criminal Act (ACCA).  See 18
  U.S.C. § 924(e).  The Court  held that Congress did not intend to permit
  defendants to challenge the validity of such convictions  at federal
  sentencing hearings, except in cases where the prior convictions were
  obtained in total  denial of the right to counsel, contrary to Gideon v.
  Wainwright, 372 U.S. 335 (1963).  Cutis, 511 U.S.  at 496; see also Burgett
  v. Texas, 389 U.S. 109, 115 (1967); United States v. Tucker, 404 U.S. 443,
  448 (1972).

       Since briefing and oral argument in this case, the United States
  Supreme Court has issued 

 

  two decisions amplifying the meaning of Custis. (FN2)  In Daniels v. United
  States, 532 U.S. 374  (2001), the Court considered whether, after the
  sentencing proceeding has concluded, the individual  who was sentenced may
  challenge his federal sentence through a motion under the federal post 
  conviction relief statute (28 U.S.C. § 2255) on the ground that his prior
  convictions were  unconstitutionally obtained.  The Court held that "as a
  general rule, he may not." Id. at 376.  In  Lackawanna County District
  Attorney v. Coss, 532 U.S. 394 (2001), the Court again confronted the 
  question of whether federal post conviction relief is available when a
  prisoner challenges a current  sentence on the ground that it was enhanced
  based on an allegedly unconstitutional prior conviction  for which the
  petitioner is no longer in custody.  The Court determined that "relief is
  similarly  unavailable to state prisoners through a petition for a writ of
  habeas corpus under 28 U.S.C. § 2254."  Id. at 397.

       The decisions in Daniels and Coss put to rest the debate over whether
  - as defendants  originally argued - the lesson to be gleaned from Custis
  was merely about where a defendant could  attack a prior conviction for
  constitutional infirmity ("Custis presented a forum question.  The issue 
  was where, not whether, the defendant could attack a prior conviction for
  constitutional infirmity."  Nichols v. U.S., 511 U.S. 738, 765 (1994)
  (Ginsberg, J., dissenting) (emphasis in original)).  As the  dissent here
  accurately observes, many state courts allowed a challenge to a predicate
  conviction  within an enhanced sentence proceeding for reasons other than
  denial of counsel because prior to  Custis, it was assumed that the 
  federal constitution required the procedure.  Defendants  acknowledge - as
  they must - that in light of Custis and subsequent cases, the issue before
  us is not 

 

  whether the procedure they seek is constitutionally required, but whether,
  as a matter of policy we  should allow the challenges to predicate
  convictions within the enhanced sentencing proceedings or  whether the
  challenge should be by a petition to superior court for post conviction
  relief, assuming  that the "in custody" requirement was satisfied.  We
  agree that Daniels and Coss do not alter the  issue before us.

       While Daniels and Coss are conclusive as to the limitations placed
  upon defendants who seek  a federal forum to collaterally attack a current
  sentence on the ground that it was enhanced based on  an allegedly
  unconstitutional prior conviction, the decisions do not preclude this Court
  from  deciding: (a) whether a defendant may collaterally challenge a prior
  conviction which the State  intends to rely upon to enhance a sentence when
  the challenge is based on a claim other than a  violation of the right to
  counsel, and (b) if so, where that challenge should take place.

       We hold that a defendant's collateral challenge to a prior conviction
  upon which the State  relies to enhance a sentence is not limited solely to
  claims of invalidity based upon a violation of the  right to counsel. 
  Defendants and the State agree that Vermont practice since In re Stewart,
  140 Vt.  351,  438 A.2d 1106 (1981), has been to permit post-conviction
  relief challenges to "enhancement"  convictions, so long as the petitioner
  was "in custody" on the recidivist sentence.  See In re Kasper,  145 Vt.
  117, 118,  483 A.2d 608, 609 (1984).  Challenges to the State's reliance on
  predicate  convictions used to enhance or subject a defendant to recidivist
  penalties have been predicated - as  defendants seek to do in the instant
  case - on alleged Rule 11 violations.  See, e.g. id. (Rule 11); In  re
  LaMountain, 170 Vt. 642, 643, 752 A.2d 24, 25 (2000) (mem.) (petitioner
  collaterally attacked a  1985 DUI conviction for Rule 11 violation but
  revocation of petitioner's driver's license for life as a  result of
  predicate convictions insufficient to establish "in custody under sentence"
  as required 

 

  by post-conviction relief statute).

       Indeed, although defendants, in supplemental briefing, express concern
  that the holdings of  Daniels and Coss may lead to similar restrictions
  under Vermont's post-conviction relief statute we  note that "the
  compelling interest . . . in the finality of convictions" that grounds the
  Supreme  Court's determination in both cases acknowledges the significance
  of state-created review of  convictions:

    Once a judgment of conviction is entered in state court, it is
    subject to  review in multiple forums.  Specifically, each State
    has created  mechanisms for both direct appeal and state
    post-conviction review . .  . even though there is no
    constitutional mandate that they do so.

  Coss, 532 U.S.  at 402.

       It would be anomalous, to say the least, if at the moment the United
  States Supreme Court  was limiting access to post-conviction relief in
  federal forums because of confidence in state post-conviction review
  procedures, we chose this time to narrow the grounds upon which a
  collateral  attack on a predicate conviction could be made in a post
  conviction relief proceeding.	

       Defendants further assert that if they may challenge prior convictions
  that the State intends to  use for sentence enhancement purposes, they are
  entitled to do so at the sentencing hearing in district  court. (FN3) 
  Defendants also contend that, as a practical matter, the district court is
  in a better 

 

  position to determine the validity of prior convictions, as the files and
  transcripts may be more  readily available.

       We disagree.  We note that even those decisions that predate Daniels
  and Coss  overwhelmingly determined that such challenges should occur in
  post-conviction relief procedures,  not at sentencing hearings.  See, e.g.,
  United States v. Clark, 203 F.3d 358, 363 (5th Cir. 2000),  vacated by, 532 U.S. 1005 (2001) ("Custis announced only a prohibition on [collateral
  attacks] in the  context of federal sentencing hearings.  This Court has
  consistently sanctioned the use of [federal  habeas corpus statute] to
  attack a federal sentence being currently served on the ground that it was 
  enhanced on the basis of a constitutionally invalid prior conviction.");
  United States v. Walker, 198 F.3d 811, 814 (11th Cir. 1999) (applying
  Custis ban to prior conviction challenge at sentencing, but  allowing
  habeas corpus attack in separate post-conviction proceeding); United States
  v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999) (same); United States v.
  Garcia, 42 F.3d 573, 581 (10th Cir. 1994)  (same); Fairbanks v. State, 629 A.2d 63, 68 (Md. 1993) ("A defendant who is prevented [by our  ruling] from
  challenging the constitutionality of a prior conviction . . . during a
  sentencing  proceeding . . . may thereafter mount a collateral challenge by
  any means that remain available,  including post-conviction procedures.").

       We also are unpersuaded by defendants' argument that requiring a
  defendant to proceed in 

 

  a forum other than the sentencing court "would be cumbersome and lavishly
  wasteful of resources."   In asserting that records and transcripts
  relating to challenged predicate convictions would be more  readily
  available at the court in which the sentencing hearing is held, defendants
  envision a more  orderly confluence of present court and past record than
  is reflected by experience.  The prior  conviction being attacked is
  ordinarily several years old.  It may have been a conviction resulting 
  from a proceeding in the same courthouse, but is as likely to have been a
  conviction obtained in  another district court, or, indeed, an out-of-state
  court.  Custis itself recognized a distinction between  a Gideon error -
  presumably the most easily identified basis for challenge - and other
  constitutional  challenges that "would require sentencing courts to rummage
  through frequently nonexistent or  difficult to obtain state-court
  transcripts."  Cutis, 511 U.S.  at 497.  Although defendants argue that it 
  is more practical and efficient to require the district court to determine
  the validity of its own  convictions, we disagree and decline to "force the
  sentencing court to look behind every conviction  with practically no
  record to rely on."  State v. Delacruz, 899 P.2d 1042, 1049 (Kan. 1995).
  (FN4) 

       Moreover, we concur with Custis's observation that allowing attacks
  for non-Gideon error at  sentencing would only result in "delay and
  protraction of the . . . sentencing process."  Cutis, 511 U.S.  at 497. 
  "Other courts have also recognized the need to limit the defendant's right
  to be heard 

 

  at sentencing to prevent the sentencing hearing from becoming a trial." 
  People v. Padilla, 907 P.2d 601, 609 (Colo. 1995); see also United States
  v. Fondren, 54 F.3d 533, 534 (9th Cir. 1994) (rejecting  judicial economy
  arguments and adopting Custis rule). 

       Of equal or greater significance than matters of administration and
  expeditiousness of  sentencing are the benefits offered by utilizing
  established PCR procedures for challenges to non-Gideon errors:

    The defendant must allege with specificity the claimed
    deficiencies,  thus allowing the State a reasonable opportunity to
    investigate,  respond, and prepare a defense.   Prior proceedings,
    including any  direct appeals and previous collateral challenges,
    can be explored,  with concomitant opportunity to determine
    whether the issues have  been previously litigated, waived, or are
    otherwise barred by prior  proceedings. 

  Fairbanks, 629 A.2d  at 65.  Indeed, in a PCR, the State has the ability to
  call the defendant as a  witness, whereas in a sentencing proceeding it
  does not.  Providing a clear record and fully  articulated arguments from
  all material witnesses in a PCR appeal is precisely why we have a 13 
  V.S.A. §§ 7131-7137.  See Stewart, 140 Vt. at 356, 438 A.2d at 1107-08)
  (PCR statutes "enacted to  simplify the often cumbersome procedures
  associated with habeas corpus . . . and to provide a more  convenient forum
  for obtaining relevant records and witnesses."). (FN5)

       Adhering to our PCR procedures safeguards a defendant's rights while
  promoting the State's  interest in finality of judgments.  See In re
  Rebideau, 141 Vt. 254, 257, 448 A.2d 144, 146 (1982)  ("[P]ost-conviction
  relief is not a vehicle for reexamining a defendant's guilt or innocence,
  but is 

 

  rather designed to correct fundamental trial errors without jeopardizing
  the State's interest in  finality."); State v. Provencher, 128 Vt. 586,
  591, 270 A.2d 147, 150 (1970) ("[F]inality . . . is of  vital significance
  in the administration of criminal justice.") (Holden, C.J., concurring with
  all  members of the Court in accord).  Although the dissent asserts that
  adherence to established PCR  procedures may result in offenders convicted
  in DUI enhancement cases serving their sentences  before a PCR petition
  challenging a predicate conviction is resolved (in superior court), our
  system  of justice does not guarantee convicted defendants that all avenues
  of appeal must be exhausted  before any sentence is imposed.  If PCR
  decisions in cases of collateral attack on predicate DUI  convictions
  demonstrate that defendants are serving all or most of their sentence prior
  to a PCR  determination that the predicate convictions used for enhancement
  are constitutionally infirm, the  Supreme Court by administration or rule
  may calibrate a practical remedy to a real - not theoretical -  problem.  

       Nor do we agree with the dissent's view that our approach will bring
  the "risk" of early  constitutional challenges to convictions.  If one
  assumes -  as we do -  that a constitutional challenge  is made in good
  faith, early challenges to convictions ought to be encouraged.  We fail to
  see how  the defendant, judicial administration, or justice are served by a
  system that provides incentives for  defendants or their counsel to ignore
  alleged constitutional violations at the time they take place in  the
  belief that some tactical advantage may be gained by challenging a
  conviction remote in time.  If  "risk-benefit" analysis is to be used, we
  seek the benefit of ensuring that constitutional attacks on  convictions
  are resolved as early as possible, whatever risk this may pose to an
  increase in judicial  workload.  
  
       Given these policy concerns, it simply cannot be persuasively
  maintained that defendants 

 

  should be allowed to challenge their predicate convictions at the
  sentencing phase of an enhancement  charge.  If defendants choose to
  challenge the district courts' compliance with V.R.Cr.P. 11 in taking 
  defendants' prior pleas, they must do so in PCR proceedings pursuant to 13
  V.S.A. § 7131.

       Defendants express concern that, since their sentences for their
  predicate convictions have  expired, they may not be able to avail
  themselves of post-conviction relief because of 13 V.S.A.  § 7131's
  requirement that only a defendant who is "in custody under sentence" may
  challenge his or  her conviction.  The State concedes, however, that a
  defendant seeking to challenge an expired prior  DUI conviction that was
  used to enhance a sentence satisfies the "in custody under sentence" 
  requirement of § 7131.  As the Third Circuit Court of Appeals explained:

    [A post-conviction relief] petitioner in custody under a sentence 
    enhanced by a prior conviction may attack that prior conviction,
    even  if he is no longer in custody for it.  However, he may do so
    only in  the context of a challenge to the enhanced sentence for
    which he is in  custody.  In other words, a prisoner may attack
    his current sentence  by a [post-conviction] challenge to the
    constitutionality of an expired  conviction if that conviction was
    used to enhance his current  sentence.

  Young v. Vaughn, 83 F.3d 72, 77-78 (3rd. Cir. 1996); see also Williams v.
  Edwards, 195 F.3d 95, 96  (2d Cir. 1999) ("However, the 'in custody'
  requirement for federal habeas jurisdiction is satisfied  when a pro se
  petition, liberally construed, can be read as asserting a challenge to a
  current sentence,  as enhanced by an allegedly invalid prior conviction.")
  (citation omitted).  

       Finally, defendants argue that if they can show near non-compliance
  with V.R.Cr.P. 11 in  their prior plea proceedings, the burden of proof
  should shift to the State to show that those  convictions may nevertheless
  be used to enhance their subsequent sentences.  This contention is 
  essentially the corollary to defendants' argument that they should be
  allowed to challenge their prior 

 

  convictions at sentencing.  We have already rejected this premise by
  holding that defendants may  challenge their predicate convictions only in
  PCR proceedings.  Accordingly, we reject defendants'  burden-shifting
  argument, and hold that the burden is on defendants to prove that their
  respective  trial courts did not substantially comply with V.R.Cr.P. 11 in
  accepting their plea agreements and  that this non-compliance prejudiced
  their pleas.  See In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113
  (1997); see also Fairbanks, 629 A.2d  at 65 ("Because a facially valid
  conviction is  entitled to a strong presumption of regularity, [a
  post-conviction relief] procedure clearly places the  burden of proof where
  it should be - upon the defendant attacking the conviction."). 

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice



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                                  Footnotes


FN1.  Transcripts from defendant Boardman's 1991 and 1992 convictions
  reveal that in each case  defendant executed waiver of rights forms and
  written plea agreements, the court inquired and  confirmed that defendant
  understood these documents, and that defendant stipulated to a factual 
  basis for the charge.  The State contends that the V.R.Cr.P. 11 colloquies
  at the changes of plea  hearings in 1991 and 1992 were adequate.  See State
  v. Morrissette, 170 Vt. 569, 570-71, 743 A.2d 1091, 1093 (1999) (mem.). 
  Transcripts from defendant Boskind's 1991 conviction reveal that the  court
  inquired and confirmed that defendant understood the charges and penalties
  he was facing, and  that a factual basis was given by the State.  The State
  contends that the V.R.Cr.P. 11 colloquy at this  hearing was adequate.  See
  Morrissette, 170 Vt. at 570-71, 743 A.2d  at 1093. 

FN2.  We granted defendant's Motion for Leave to File Supplemental Briefs to
  address the  relevance of Daniels and Coss.  In supplemental briefing, the
  defendants and the State each argue  that the opinions are unnecessary to a
  resolution of this case.  "Daniels and Coss should have no  effect on the
  Court's decision in these cases."  "This Court need not consider Coss or
  Daniels in this  appeal." 

FN3.  Defendant Boardman also asserts that the prior offense is an element
  of the repeat-offender  charge and that, under 23 V.S.A. § 1210(d), the
  jury was not at liberty to acquit him on the ground  that a predicate
  conviction was legally invalid.  We have, however, previously addressed
  that issue in  State v. Porter, 164 Vt. 515, 520, 671 A.2d 1280, 1283-84
  (1996), noting:

    Although we require the State to allege prior convictions as an 
    element of the repeat-offender charge, we nevertheless held in
    [State  v. Cameron, 126 Vt. 244, 249, 227 A.2d 276, 280 (1967)]
    that "the   fact of a prior conviction or convictions does not
    become material  until after the conviction of the accused on the
    substantive offense on  trial is established and then only for the
    purpose of enabling the trial  judge to impose the proper
    sentence."  . . . The bifurcated procedure  established in Cameron
    . . . is expressly intended to allow a jury to  convict or acquit
    a defendant of the substantive offense without  regard to any
    prior offenses for which the defendant was convicted. 

FN4.  The dissent's exception to our judgment as to the policy choice best
  fitted to Vermont's trial  courts is based upon the California Supreme
  Court's assessment of "efficient judicial administration"  in the
  California judiciary. See People v. Allen, 981 P.2d 525, 532 ( Cal. 1999)
  (internal citation  omitted).  Although the dissent has characterized the
  California approach as "carefully calibrated" to  meet the  administrative
  difficulties of predicate conviction challenges in enhancement proceedings, 
  three members of the seven member Court in Allen expressed reservations 
  about the majority's  confidence in the ease of administration.  See id. at
  540 (Baxter, J., concurring) ("[T]he instant  majority opinion rel[ies]
  heavily on the assumption that a complete record of the prior conviction 
  will be readily available, so that it can easily be ascertained whether . .
  . procedures were followed.   However, our own decisions belie this
  assumption.").  

FN5.  While the dissent accurately notes that DUI enhancement in Vermont can
  only be based on  Vermont convictions, collateral challenges to predicate
  convictions in the district court would not,  under the dissent's
  rationale, be limited solely to DUI prosecutions.  Out of state convictions
  are  relevant to several penalty enhancement statutes.  See, e.g., 13
  V.S.A. § 2602 (lewd and lascivious  conduct with child); 13 V.S.A. §
  1063(a)(2) (aggravated stalking).   



------------------------------------------------------------------------------
                               Dissenting

       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.


                            Nos.  98-470 & 99-335


State of Vermont	                         Supreme Court

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

Jethro S. Boskind	                         March Term, 2000


State of Vermont

     v.

John S. Boardman


Brian L. Burgess, J.  (98-470)
Amy M. Davenport, J.  (99-335)


Jane Woodruff, Department of State's Attorneys, Montpelier (98-470), and 
  Lauren Bowerman, Chittenden County State's Attorney, Burlington (99-335), 
  for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, 
  Montpelier (98-470), and Paul D. Jarvis of Jarvis and Kaplan, Burlington 
  (99-335), for Defendants-Appellants.


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


       DOOLEY, J., dissenting.   If the majority opinion provided a
  meaningful remedy for a  defendant, facing an enhanced sentence, to
  challenge a predicate conviction, I would join it.  The  reality, however,
  is that the challenge method the majority has allowed is likely, in DUI
  cases like  those before us, to provide relief only after the defendant has
  served the enhanced sentence.  Thus, 

 

  the remedy comes too late to be meaningful, an overriding factor ignored by
  the majority.  For that  reason, I dissent.

       Consistent with its decision that these defendants can bring
  post-conviction relief (PCR)  proceedings under 13 V.S.A. § 7131, but only
  after defendants have been sentenced on the enhanced  offense, the majority
  faced two options on how it would allow defendants to challenge one or more 
  of the predicate convictions: (1) as defendants sought, they could
  challenge the predicate offenses as  part of the proceedings in the
  criminal case in which the State seeks enhancement; or (2) defendants 
  could challenge the predicate convictions in a PCR filed under § 7131.  In
  choosing to allow only the  second option, the majority relies heavily on
  three decisions of the United States Supreme Court - Custis v. United
  States, 511 U.S. 485 (1994); Lackawanna County District Attorney v. Coss,
  532 U.S. 394 (2001); and Daniels v. United States, 532 U.S. 374 (2001).  I
  do not find these decisions to  be dispositive.

       If this case had arisen before Custis, it is highly likely that
  defendants would have prevailed.   Although we had never ruled directly on
  the question presented here, the lower courts were allowing  constitutional
  challenges to predicate convictions based on guilty pleas in the proceeding
  in which  the State was seeking an enhanced sentence, and we reviewed a
  number of these decisions without  questioning the procedure.  See, e.g.,
  State v. Tatro, 161 Vt. 182, 186, 635 A.2d 1204, 1207 (1993).  The
  procedure was consistent with black letter law from around the country:

    Generally, underlying prior convictions based on pleas of guilty
    must  be obtained in compliance with constitutional standards, and
    a plea  without these advisements may not be used to supplement
    the charge  in an habitual offender proceeding, or to serve as a
    basis for  enhancing punishment.

  24 C.J.S. Criminal Law § 1658, at 308-09.

       Custis changed this situation primarily by ruling that this procedure
  is not constitutionally 

 

  required except in the case of challenges based on denial of the right to
  counsel.  511 U.S.  at 496.   Thus, in light of the Custis holding,
  defendants have not argued here that the procedure they seek is 
  constitutionally required.  They argue instead that it is the fairest and
  most efficient method of  resolving the legality of predicate convictions
  and is consistent with the statutory scheme.

       Some, but not yet a majority of, state courts have reconsidered their
  holdings on challenging  predicate convictions in light of Custis.  Many of
  these courts have assumed that defendants were  allowed to challenge
  predicate convictions within the enhanced sentence proceeding for reasons 
  other than denial of the right to counsel because it was thought that the
  federal constitution required  this procedure.  Once Custis made clear
  there was no such constitutional requirement, these courts  simply
  abandoned the challenge procedure in non-counsel cases without analysis of
  whether it  should be continued as a policy matter.  Thus, these courts
  never considered the arguments  defendants are making here.

       Among the remaining courts that have considered the policy arguments,
  the most thorough  and persuasive analysis has come from the California
  courts.  In a pre-Custis decision, the California  Supreme Court held in
  People v. Sumstine, 687 P.2d 904, 914 (Cal. 1984) that a defendant could 
  challenge a predicate conviction, within the enhanced sentence proceeding,
  where the challenge  alleged that the predicate conviction was based on an
  unconstitutional guilty plea procedure in  violation of the requirements of
  Boykin v. Alabama, 395 U.S. 238 (1969).  In reaching this decision,  the
  court relied upon an earlier case, People v. Coffey, 430 P.2d 15 (Cal.
  1967), in which the  challenge of the predicate conviction was based on a
  denial of the right to counsel.  Coffey held that  "it is clearly in the
  interest of efficient judicial administration that attacks upon the
  constitutional  basis of prior convictions be disposed of at the earliest
  possible opportunity, and we are therefore of  the view that, if the issue
  is properly raised at or prior to trial, it must be determined by the trial 

 

  court."  Id. at 22.  Sumstine held that this rationale applied equally in
  cases involving challenges to  predicate convictions based on
  constitutional attacks to the guilty plea procedure.  687 P.2d  at 912-13.

       In three decisions, the California Supreme Court reconsidered Sumstine
  after Custis.  See  People v. Allen, 981 P.2d 525 (Cal. 1999); Garcia v.
  Superior Court, 928 P.2d 572 (Cal. 1997);  People v. Horton, 906 P.2d 478
  (Cal. 1995).  In the last and most relevant, People v. Allen, (FN1)  the
  court rejected the analysis of Custis that suggested that considering
  attacks on predicate  convictions in the enhanced sentence proceeding was
  not the most efficient procedure.  Central to the  court's decision is its
  recognition that:

    Custis . . . set[s] the floor for federal constitutional purposes,
    [but  does] not . . . prohibit states from establishing rules of
    procedure to  facilitate the smooth and efficient operation of
    their trial courts.

  Allen, 981 P.2d  at 537.  That recognition should guide this decision, but
  unfortunately does not.  I  discuss the California court's reasoning in
  connection with the majority's analysis of these issues  below.

       Although it is in a sense backward, I start with the majority's
  reasons not to allow the  challenge to the predicate convictions in the
  enhanced sentence proceeding.  The majority draws two  from the Custis
  analysis.  The first is that requiring PCR review supports finality of
  judgments.   Custis explained this policy as additional support for its
  conclusion, stating that " 'inroads on the  concept of finality tend to
  undermine confidence in the integrity of our procedures.' "  511 U.S.  at 
  497 (quoting United States v. Addonizio, 442 U.S. 178, 184 n.11 (1979)). 
  It also noted that this 

 

  concept has extra weight when the challenged judgment is based on a guilty
  plea.

       As commentators noted about Custis, the Court's discussion of finality
  of judgments made  sense only if the Court was precluding all federal
  review of state judgments that are used as a  predicate to an enhanced
  federal sentence.  See Note, More than a Question of Forum: The Use of 
  Unconstitutional Convictions to Enhance Sentences Following Custis v.
  United States, 47 Stan. L.  Rev. 1323, 1336 (1995).  As the majority notes
  here, that is exactly the effect of the later cases,  Daniels v. United
  States and Lackawanna County Dist. Attorney v. Coss.  Thus, the Custis rule 
  supports a total denial of review, not a decision on where and when review
  should occur.  The  majority acknowledges that we are deciding where and
  when review should occur, not whether  review should occur.  While the
  majority suggests that finality of a predicate judgment is promoted  by
  requiring that the challenge to it be in a separate PCR proceeding, exactly
  the opposite is true.   Allowing the challenge in the enhancement criminal
  case will only deny its use in enhancement.  A  successful PCR challenge
  will entirely overturn the judgment.

       Like the Supreme Court in Custis, the majority grounds most of its
  rationale on practical  concerns.  The Supreme Court noted in Custis that
  it is easy to determine whether there has been a  denial of right to
  counsel, the only ground on which it allowed a challenge to the predicate 
  conviction, but not easy to determine whether a guilty plea was voluntary,
  knowing and intelligent.   It commented that federal courts would have to
  "rummage through frequently nonexistent or difficult  to obtain state-court
  transcripts or records that may date from another era, and may come from
  any  one of the 50 States."  Custis, 511 U.S.  at 496.  It also noted that
  such challenges would "require  . . . delay and protraction of the federal
  sentencing process."  Id. at 497.

       The majority relies on the above language from Custis noting that the
  needed transcript may  come from any district court in Vermont or from
  another state.  It also asserts that allowing 

 

  challenges to predicate convictions in the criminal proceeding in which the
  State seeks the enhanced  sentence would turn sentencing into a trial.  It
  asserts that a PCR proceeding allows for notice and  evidentiary
  development, including calling the defendant as a witness, and that these
  important  procedures could not happen in the district court.  Finally, it
  asserts that more complicated  enhancement proceedings impose a substantial
  burden on the district court.  None of these reasons  are persuasive.

       With respect to the availability of transcripts, Custis eliminated any
  problem to the State or  the court caused by the unavailability of
  transcripts in its holding that defendant has the burden to  show lack of
  substantial compliance with Rule 11, a holding in which I join.  See also
  State v.  Brown, 165 Vt. 79, 88, 676 A.2d 350, 356 (1996) (in challenging
  predicate DUI convictions on basis  of denial of right to counsel, a
  defendant has the burden to show he was eligible for appointed  counsel). 
  Even if defendant did not have the burden, I cannot accept the argument
  that we face  difficulty in obtaining needed transcripts.  Nowhere in our
  criminal and PCR appeal decisions is  there any indication that lack of
  transcripts has made impossible review of guilty pleas, even pleas 
  rendered some years ago.  Nor is the majority's concern about the
  availability of out-of-state  transcripts an issue because DUI enhancement
  in Vermont can be based only on Vermont  convictions. (FN2)  See 23 V.S.A.
  § 1210(d) (enhancement based on prior violations of "section  1201 of 

 

  this title").

       Second, DUI enhancement is already part of the trial in Vermont.  See
  State v. Cameron, 126  Vt. 244, 249-50, 227 A.2d 276, 280 (1967). 
  Enhancement is determined by the jury in "the second  phase of the
  bifurcated proceeding."  State v. Baril, 155 Vt. 344, 346, 583 A.2d 621,
  622 (1990).   The majority's characterization of the claim in this case as
  "defendants should be allowed to  challenge their predicate convictions at
  the sentencing phase of an enhancement charge" shows a  fundamental
  misunderstanding of the enhancement procedure in this state.  Even if the
  majority's  discussion accurately described the enhancement process,
  however, it ignores that the  constitutionality of a guilty plea is a
  question of law that must be raised pretrial in a motion to  suppress or
  strike.  See V.R.Cr.P. 12(b); see also People v. Allen, 981 P.2d  at 532. 
  Resolution of a  challenge to a predicate conviction could not hold up
  sentencing.  Further, adherence to the motion  rules will allow exactly the
  notice and evidentiary development that the majority sees in PCR 
  proceedings.

       The Supreme Court of California thoroughly examined the burden of
  resolving guilty plea  related challenges to predicate convictions in the
  enhanced sentence proceeding.  See Allen, 981 P.2d  at 537.  Based on 15
  years of allowing such challenges, it found that they entailed "little 
  disruption."  Id.  Our limited experience in handling such challenges also
  shows no disruption.  See,  e.g., Tatro, 161 Vt. at 186, 635 A.2d  at 1207.

       I think the California conclusion is particularly reliable because the
  court did refuse to allow  predicate conviction challenges in the
  enhancement proceeding if the challenge is based on  ineffective assistance
  of counsel.  See People v. Garcia, 928 P.2d  at 579.  There the court found
  that  allowing such challenges would seriously disrupt the criminal trial
  in the enhancement proceeding.   Thus, the court carefully calibrated the
  administrative difficulties raised by the type of challenge 


 

  involved. (FN3)

       Although none of our cases indicate that additional evidence would be
  necessary in a Rule 11  proceeding, the majority raises the specter that
  such evidence could not be obtained from the defense  in a criminal motion
  hearing.  In fact, we held that the defendant could be required to give
  exactly  such evidence in Brown, 165 Vt. at 88, 676 A.2d  at 356.  Moreover,
  the California courts routinely  require such evidence in challenges to
  predicate convictions based on guilty pleas because the  California rule is
  that the defendant must show that despite the lack of advisement from the
  court he  or she did not actually know of the rights being waived.  See
  Allen, 981 P.2d  at 535.  Thus, the  defendant must routinely testify in
  California, and despite the need to take additional evidence, the 
  California Supreme Court found no substantial burden from challenges to
  predicate convictions.

       The majority's final reason is equally unavailing.  The majority has
  simply transferred a  burden from the district court to the superior court. 
  Since trial judges are assigned to superior and  district court as needed
  to meet demand, and are frequently assigned to both courts at once, I fail
  to  see how a decision on which court will hear a predicate challenge is
  relevant.  Indeed, the risk of the  majority's approach is that defendants
  will bring early challenges to convictions that will never  actually be
  used for enhancement purposes knowing that a later challenge will be
  ineffective.  Thus,  the risk is that the majority's ruling will increase
  the work of the trial courts, not decrease it.

       While I find the majority's reasons for its policy choice weak, my
  fundamental disagreement  with the majority lies in its failure to consider
  the main reason why not to require a separate PCR 

 

  proceeding in DUI enhancement cases.  Although a third conviction of DUI is
  a felony, a defendant  is unlikely to spend much more than a year in jail
  for this offense alone.  At the same time a PCR  petition challenging a
  predicate conviction is unlikely to be resolved in less than a year in most 
  superior courts in Vermont.  Thus, PCR relief can come only after a
  defendant has served all, or most  of, a sentence.  It is not a practical
  remedy because it does not precede the imposition of the  enhanced
  sentence.

       The majority's secondary response is that if the above accurately
  states the facts we can  "calibrate a practical remedy to a real - not
  theoretical - problem."  Ante at 11.  I hope our criminal  rules committee
  will act on this statement to provide by rule the meaningful remedy the
  majority is  unwilling to provide by this decision.

       But I am more concerned by its primary response - that defendants are
  not entitled to "all  avenues of appeal" before sentence is imposed.  The
  question before us is whether we should  consider the challenge to the
  predicate conviction an essential part of the criminal case in which 
  enhancement is sought or a separate event to occur in a later separate
  proceeding, post-conviction  relief.  In neither case is it an appeal, and
  labeling it so does not advance our inquiry except to  belittle the
  position that we should ensure that a sentence is correctly and
  constitutionally imposed in  compliance with the law before demanding that
  a defendant serve that sentence.  Because I hold that  position, and
  believe that ensuring the accuracy of a conviction is more important than
  ensuring a  speedy sentencing, I dissent.  I am authorized to state that
  Justice Johnson joins this dissent.




                                       _______________________________________
                                       Associate Justice



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


FN1.  Allen arose under California's three strikes law for recidivist felony
  convictions.  The issue  does not actually arise in DUI cases in California
  because the right to challenge predicate convictions  within the DUI case
  in which enhancement is sought is provided by statute in California.  See
  Cal.  Veh. Code § 41403 (2000).

FN2.  The majority has responded that the rationale of this dissent would
  apply to other  enhancement schemes where the predicate convictions do not
  have to have occurred in Vermont  courts.  I disagree.  My only point is
  that the difficulty of determining the validity of out-of-state 
  convictions is not relevant to the enhancement scheme currently before this
  Court.

       The concurring opinion in People v. Allen urged that the defendants
  not be allowed to  challenge predicate out-of-state convictions in the
  enhancement proceeding.  981 P.2d  at 539-40.   That limitation has been
  imposed in the one relevant California Court of Appeal decision following 
  Allen.  See People v. Green, 96 Cal. Rptr. 2d 811, 816-17 (Cal. Ct. App.
  2000).  Although I would  await a case where the issue is before us, I am
  not opposed to such a limitation.

FN3.  The majority suggests that the California approach cannot be carefully
  calibrated if three  members of the California Supreme Court concurred in
  the Allen decision, but did not join its  reasoning.  In fact, the main
  point of the concurrence was to support additional restrictions on 
  challenging predicate convictions, not directly raised by the facts of the
  case.  Allen, 981 P.2d  at  538-43.  I agree with the restrictions urged in
  the concurrence.