ENTRY ORDER


State v. Sinclair (2010-475)
 
2012 VT 47
 
[Filed 08-Jun-2012]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 
 

2012 VT 47 

 

No. 2010-475

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Eddie Sinclair


March Term, 2012


 


 


 


 


Linda
  Levitt, J.


 

Thomas Donovan, Jr., Chittenden County State’s Attorney, and
Pamela Hall Johnson, Deputy 
  State’s Attorney, Burlington, for Plaintiff-Appellee.
 
Allison N. Fulcher of Martin & Associates, Barre, for
Defendant-Appellant.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and
Robinson, JJ., and Kupersmith, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
DOOLEY, J.   Defendant filed a petition for a writ of
coram nobis in the criminal division, seeking to vacate a conviction from 1993
on the ground that his plea was not entered voluntarily.  The court denied
the motion, concluding there was no basis for a collateral attack on
defendant’s plea.  Defendant appeals, arguing his plea should be vacated
because the sentencing court did not substantially comply with Vermont Rule of
Criminal Procedure 11.  We affirm.
¶ 2.            
In October 1992, the State charged defendant with assault and
robbery.  Defendant entered a plea agreement with the State in which he
agreed to plead guilty in exchange for a sentence of two-to-twelve years. 
In March 1993, the trial court held a change-of-plea hearing and engaged
defendant in plea colloquy.  The court then accepted the plea and
subsequently sentenced defendant in accordance with the agreement.
¶ 3.            
In November 2010, long after his sentence had been served, defendant
filed a pro se motion in the criminal division “pursuant to coram nobis” to
“vacate/bring to trial/set aside” his 1993 conviction.  Defendant claimed
the plea was entered involuntarily because he was not told that the plea could
be used to enhance a future sentence and he was under the influence of
narcotics at that time.  The motion alleged that he was currently serving
a federal sentence that was enhanced based on his 1993 Vermont
conviction.  In a written order, the court denied the motion, ruling that
defendant had failed to demonstrate the plea colloquy was inadequate and that
there was no basis for a collateral attack on the plea.  Defendant
appealed.
¶ 4.            
On appeal, now represented by counsel, defendant raises arguments aimed
at challenging the adequacy of the plea colloquy.  He argues that at the
change-of-plea hearing in 1993 the court failed to substantially comply with
Vermont Rule of Criminal Procedure 11 and that he received ineffective
assistance of counsel.  Although disagreeing on the merits, the State’s
arguments are primarily aimed at alleged procedural deficiencies in defendant’s
petition for relief.  The State contends that defendant’s petition is
improperly brought in the criminal division because defendant may not avail
himself of coram nobis when postconviction relief (PCR) proceedings are
available to him, and that they are available in this case.  Thus, the
State argues that the petition should be dismissed without reaching the merits
of defendant’s arguments.
¶ 5.            
We begin with the threshold question of whether coram nobis relief is
available to defendant.  Coram nobis is an ancient common law writ. 
L. Yackle, Postconviction Remedies § 9, at 36 (1981).  “At early
common law, there was no remedy comparable to the modern motion for a new trial
or, indeed, appellate review.”  Id. § 9, at 37.  The writ was
designed to fill this gap somewhat to correct errors of fact “affecting the
validity and regularity of the judgment.”  Skok v. State, 760 A.2d
647, 655 (Md. 2000) (quotation omitted).  It was commonly used in civil
cases, but seldom in criminal cases.  Sanders v. State, 85 Ind.
318, 1882 WL 6389, at *4 (1882).  While coram nobis was originally sought
by initiating a new proceeding through a writ, in the United States “proceeding
by motion is the modern substitute.”  United States v. Mayer, 235
U.S. 55, 67 (1914).
¶ 6.            
Early on, the U.S. Supreme Court recognized the availability of a common
law writ of coram nobis, describing it as a means “to
bring . . . errors in matters of fact which had not been
put in issue or passed upon, and were material to the validity and regularity
of the legal proceeding itself,” such as the minority or death of a
party.  Id. at 68.  The Court described the writ narrowly as
confined to addressing factual errors “of the most fundamental character” and
not designed to raise questions such as newly discovered evidence, or the
misbehavior or partiality of jurors.  Id. at 69.  
¶ 7.            
Following adoption of the federal habeas corpus statute, 28 U.S.C. §
2255, and Federal Rule of Civil Procedure 60, which abolished use of coram
nobis in civil cases, “[i]t was far from clear that coram nobis was available
in federal courts in 1948.”  3 C. Wright & S. Welling, Federal
Practice and Procedure § 624, at 649 (4th ed. 2011).  In United States
v. Morgan, 346 U.S. 502 (1954), the U.S. Supreme Court resurrected the
doctrine, concluding that federal district courts had jurisdiction under the
All Writs Act, 28 U.S.C. § 1651, to entertain petitions for coram
nobis.  346 U.S. at 511.  In Morgan, the defendant was serving
an enhanced sentence based on a prior conviction.  The defendant argued
that the prior conviction was invalid because it was based on a guilty plea
that he entered without the benefit of counsel.  The defendant could not
seek habeas corpus relief because he was no longer “in custody.”  Id.
at 510; see 28 U.S.C. § 2255 (providing means for “prisoner in custody
under sentence” to challenge conviction).  In concluding that the
defendant could bring an application for a writ of coram nobis based on his
lack of counsel—a fact known at the time of the plea hearing—the Court
concluded that the writ reached legal errors “ ‘of the most fundamental
character.’ ”  Id. at 512 (quoting Mayer, 235 U.S. at
69); see Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984)
(granting coram nobis relief based on prosecutorial misconduct of deliberately
omitting relevant information in papers presented to court).  The Court
also emphasized that coram nobis is available only in cases where no other
remedy exists and there are “sound reasons existing for failure to seek
appropriate earlier relief.”  Morgan, 346 U.S. at 512.  
¶ 8.            
Therefore, under the modern-day formulation in federal courts “coram
nobis is broad enough to encompass not only errors of fact that affect the
validity or regularity of legal proceedings, but also legal errors of a
constitutional or fundamental proportion.”  3 C. Wright & S. Welling,
Federal Practice and Procedure § 624, at 650 (2011) (footnotes omitted).[1]  It remains, however, limited to
situations where a defendant has no other remedy available.  United
States v. Folak, 865 F.2d 110, 113 (7th Cir. 1988) (“Relief in the nature
of a writ of coram nobis is only available to the extent that it has not been
replaced by other statutory remedies.”).  
¶ 9.            
Because this federal law is procedural, states are not bound by
it.  State courts have adopted different approaches to the questions of
whether coram nobis is available at all and, if so, whether it can be used to
address both matters of fact and law.  The uncertainty surrounding coram
nobis is aptly described in the following quote:
  Our decisions are in such
confusion on the writ of coram nobis that no one can tell where we stand.
 In writing on the subject we have wobbled and bobbled like a lost raft at
sea.  But we are not alone, as other courts likewise seem to be without
mast and compass when sailing this sea.  Reference to the texts and
reported decisions of foreign jurisdictions will show that other courts are in
the same state of confusion.  The writ of coram nobis appears to be the
wild ass of the law which the courts cannot control.  It was hoary with
age and even obsolete in England before the time of Blackstone, and courts who
attempt to deal with it become lost in the mist and fog of the ancient common law.
Anderson v. Buchanan, 168
S.W.2d 48, 55 (Ky. 1943) (Sims, J., dissenting) (quotation omitted).
¶ 10.        
Nonetheless, some consistencies have emerged.  As to viability of
the remedy generally, most state courts recognize the writ “unless superseded
or abolished by statute.”  Sanders, 1882 WL 6389, at *5; see
Yackle, supra, § 9, at 40 (“Most courts took the view that absent an
express statement of intent to abolish the common law writ, coram nobis
remained in place to be applied in cases where the new remedies did not
reach.”).  In those jurisdictions where courts have concluded that the
writ was wholly abolished by PCR statutes, the holding is based on specific
statutory language.  See, e.g., State v. Blakesley, 2010 ME 19,
¶ 23, 989 A.2d 746 (holding that coram nobis was abolished by PCR
statute); Morris v. State, 918 So. 2d 807, 808 (Miss. 2005) (holding
that writ was “explicitly” abolished by statute).  
¶ 11.        
As to the scope of relief available, the Supreme Court’s decision to
extend coram nobis to fundamental or constitutional legal errors has generally,
although not uniformly, been followed by state courts.  Skok v. State,
760 A.2d 647, 658-59 (Md. 2000) (citing cases).  In Skok,
Maryland’s highest court considered the issue, and concluded that the expansion
of coram nobis to fundamental legal questions was “justified by contemporary
conditions and public policy.”  Id. at 660.  The court noted
the substantial collateral consequences that may result from a conviction, even
after a sentence has been completed, including the application of recidivist
statutes in future prosecutions and the risk of deportation proceedings to
non-citizens.  Id. at 660-61.  The court held: 
In light of these serious collateral
consequences, there should be a remedy for a convicted person who is not
incarcerated and not on parole or probation, who is suddenly faced with a
significant collateral consequence of his or her conviction, and who can
legitimately challenge the conviction on constitutional or fundamental grounds.
Id. at 661.  
¶ 12.        
In contrast, California has refused to expand the scope of coram nobis
beyond its traditional application of providing a means to review newly
discovered facts that affect the validity of the legal proceeding.  People
v. Hyung Joon Kim, 202 P.3d 436, 454 (Cal. 2009).  This approach is
followed in some other jurisdictions as well.  See Howard v. State,
493 S.W.2d 14, 20 (Mo. Ct. App. 1973) (limiting review to errors of fact not
known at time of trial); Gregory v. Class, 1998 SD 106, ¶ 18, 584
N.W.2d 873 (rejecting federal approach and limiting scope to review of errors
of fact “that without the fault of the petitioner was unknown at the time of
the questioned proceedings . . . without which the judgment
would not have been entered”); Jensen v. State, 290 N.W.2d 685, 688
(Wis. 1980) (confining coram nobis to review of “error of fact not appearing on
the record and which error would not have been committed by the court if the
matter had been brought to the attention of the trial court”).
¶ 13.        
Vermont decisions have long recognized the general availability of coram
nobis.  In Beardsley v. Gordon’s Administrator, 3 Vt. 324, 325
(1830), this Court explained that “a writ of error coram nobis will lie
for error in fact, . . . [but] it does not lie for error in
law.”  This Court later described the function of the writ more precisely
as follows: “to call to the attention of the trial court facts and
circumstances outside the record which would have precluded the entry of
judgment had such facts been known and established at the time of the
conviction.”  In re Garceau, 124 Vt. 220, 221, 202 A.2d 266, 266
(1964) (per curiam).  Following adoption of the Rules of Civil Procedure
in 1971, the writ was explicitly abolished in civil cases.  V.R.C.P. 60(b)
(“Writs of coram nobis, coram vobis, audita querela, and bills of review and
bills in the nature of bills of review are abolished as means of reopening
judgments entered under these rules, and the procedure for obtaining any relief
from a judgment shall be by motion as prescribed in these rules or by an
independent action.”).  
¶ 14.        
In prior cases, defendants have attempted to rely on coram nobis in
criminal proceedings, but for various reasons this Court has not yet addressed
the writ’s applicability to proceedings governed by the Vermont Rules of
Criminal Procedure.  See State v. LeClaire, 2003 VT 4, ¶ 20,
175 Vt. 52, 819 A.2d 719 (declining to reach issue of coram nobis where relief
through PCR was available to defendant); In re Garceau, 124 Vt. at 221,
202 A.2d at 266 (dismissing for lack of original jurisdiction petition for writ
of coram nobis based on plea being allegedly induced by fraud because petition
was filed initially in Supreme Court).  
¶ 15.        
Thus, we address this threshold legal question.  As noted, coram
nobis was originally part of this state’s common law.  Beardsley, 3
Vt. at 325.  Generally, common law principles and remedies are available
unless “repugnant to the constitution or laws” of this state.  1 V.S.A.
§ 271.  The PCR statute provides a means for those “in custody under
sentence” to vacate, set aside or correct an invalid sentence, but does not
mention the writ of coram nobis.  13 V.S.A. § 7131.  Similarly,
the criminal rules set out various forms of post-judgment relief, see, e.g.,
V.R.Cr.P. 33 (motion for a new trial); V.R.Cr.P. 34 (motion for arrest of
judgment); V.R.Cr.P. 35 (motion to modify sentence), but, unlike the civil
rules, do not address coram nobis explicitly, cf. V.R.C.P. 60(b).  
¶ 16.        
As noted, the U.S. Supreme Court decided that a
federal prisoner’s right to petition for the common law writ of coram nobis was not abolished by the
similarly worded Federal Rule of Civil Procedure 60(b) because such a petition
is part of the original criminal case, not a separate
civil proceeding.  Morgan, 346 U.S. at 505-06 n.4.  Further,
neither the federal habeas corpus statute nor Federal Rule of Criminal
Procedure 33 pertaining to motions for a new trial abolished coram nobis, which
remains a viable remedy to invalidate a defective criminal conviction when
other collateral relief is unavailable.  See id. at 511 (explaining
that availability of habeas corpus does not entirely supplant coram nobis); United
States v. Oren, 622 F. Supp. 936, 938 (W.D. Mich. 1985) (explaining that
Federal Rule of Criminal Procedure 33 and 29 U.S.C. § 2255 do not “provide an
effective means of collateral attack in all cases” and that coram nobis
“fill[s] the gaps”).  We reach a similar conclusion.  Because the
Vermont PCR statute and the criminal rules are silent on the issue, we conclude
that the common law remedy of coram nobis is a viable means for challenging
criminal convictions.  It may be used when no other remedy is available,
but may not be used to supplant relief through direct appeal, post-judgment
motion or PCR petition.[2] 

¶ 17.        
Applying this principle to defendant’s situation, we conclude that
defendant was eligible to file a PCR petition and thus precluded from seeking
relief through coram nobis.  A person “who is in custody under sentence”
may bring a PCR petition “to vacate, set aside or correct the sentence.” 
13 V.S.A. § 7131.  A person is “in custody” for purposes of the PCR
statute if he is serving a sentence enhanced by the challenged
conviction.  In re Stewart, 140 Vt. 351, 359-60, 438 A.2d 1106,
1109 (1981); see State v. Boskind, 174 Vt. 184, 192, 807 A.2d 358, 365
(2002) (holding that where defendants seek to challenge predicate convictions
used to enhance current sentence, proper avenue for relief is through PCR
proceeding).  
¶ 18.        
Thus, although defendant is no longer serving his 1993 sentence, his
allegation that the 1993 sentence is being used to enhance a current federal
sentence puts him within the ambit of our PCR statute.  In the context of
a PCR proceeding, defendant can raise the issues referred to in his motion,
including the adequacy of the Rule 11 colloquy and the effectiveness of trial
counsel.  See In re Laws, 2007 VT 54, ¶ 9, 182 Vt. 66, 928 A.2d
1210; Boskind, 174 Vt. at 192, 807 A.2d at 365 (holding that challenge
to district court’s compliance with Rule 11 in prior pleas should be done
through a PCR proceeding).  Because an alternative remedy was available to
him, we conclude that the criminal division properly dismissed defendant’s
motion for coram nobis.  Given our resolution of the case, we do not reach
the questions concerning the scope of coram nobis.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
While Morgan remains good law, the U.S. Supreme Court appears to have
retreated from it somewhat in Carlisle v. United States, 517 U.S. 416
(1996), wherein the Court concluded coram nobis was not available to that
particular defendant.  The Court explained that coram nobis “was
traditionally available only to bring before the court factual errors ‘material
to the validity and regularity of the legal proceeding itself,’ such as the
defendant’s being under age or having died before the verdict.”  Id.
at 429 (quoting Mayer, 235 U.S. at 67-68).  In so doing, the Court
relied on Mayer, but did not mention Morgan.


[2] 
We note that while a PCR petition must be filed in the civil division “of the
county where the sentence was imposed,” 13 V.S.A. § 7131, a petition for a writ
of coram nobis must be brought in the court that rendered judgment, that is the
criminal division.  In re Garceau, 124 Vt. at 221, 202 A.2d at
266.  This different venue designation does not alter the relevance of PCR
availability to determining whether an alternative remedy is available.



