2012 VT 10


In re Chandler (2012-073)
 
2012 VT 10
 
[Filed 15-Feb-2013]
 
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.
 
 

2013 VT 10

 

No. 2012-073

 

In re Charles Chandler


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Windham Unit,


 


Civil Division


 


 


 


September Term, 2012


 


 


Katherine
  A. Hayes, J.


 

Charles Chandler, Pro Se, Newfane, Petitioner-Appellant.
 
Tracy Kelly Shriver, Windham County State’s Attorney,
Brattleboro, for Respondent-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.  Charles Chandler appeals the dismissal of his
petition for post-conviction relief (PCR) alleging ineffective assistance of
counsel.  The trial court dismissed the petition after the expiration of
the twenty-nine-to-thirty-day custodial sentence imposed pursuant to the
challenged conviction for impeding a public officer.  We reverse and
remand.  
¶ 2.            
Following a confrontation with several fire fighters on his property,
petitioner was charged in 2006 with impeding a public officer, a felony under
13 V.S.A. § 3001.  A jury convicted petitioner after a three-day jury
trial in November 2009.  On March 30, 2010, the trial court sentenced
petitioner to serve twenty-nine to thirty days in jail.  Petitioner,
representing himself, asked the trial court to stay his sentence pending an
appeal.  The court denied the stay.  Petitioner hired a lawyer, who
filed a written motion for a stay under Vermont Rule of Criminal Procedure
38(b).  The trial court also denied this motion.  Petitioner appealed
the denial to this Court, and we heard arguments April 12, 2010.  We
reversed the denial, noting that the trial court should have taken into account
the short period of incarceration in deciding whether to stay the sentence
until petitioner’s merits appeal could be resolved.  We observed:
“[W]ithout a stay, defendant will undoubtedly serve his full prison sentence of
29 to 30 days before his appeal is heard.  Indeed, as of today, defendant
has already served 14 days, which is nearly half of his full sentence.”  State
v. Chandler, No. 10-135, 2010 WL 7799086, at *1 (Vt. Apr. 12, 2010) (unpub.
mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx.  We ordered
petitioner released pending the outcome of his merits appeal, which alleged
errors in the indictment, juror selection, and jury instructions.  Id.
at *2.  
¶ 3.            
In January 2011, we affirmed petitioner’s conviction.  State v.
Chandler, No. 10-135, 2011 WL 4974829, at *1 (Vt. Jan. 27, 2011) (unpub.
mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx.  The trial court
denied petitioner’s request to modify his sentence and ordered him to begin
serving the remainder starting March 16, 2011.  On March 11, 2011,
petitioner sought post-conviction relief under 13 V.S.A. § 7131 and extraordinary
relief, alleging ineffective assistance of counsel during the trial. 
Meanwhile, petitioner reported to jail as ordered and served the remainder of
his sentence.  
¶ 4.            
In July 2011, the State moved to dismiss the petition for
post-conviction relief, arguing that the trial court lacked jurisdiction to
hear the case because petitioner was no longer in custody.  Petitioner
opposed the State’s motion to dismiss, arguing, among other things, that the
court should hear his petition because his custodial sentence had not expired
when he filed.  Petitioner also alleged that he would suffer serious
collateral consequences as a result of the allegedly defective felony
conviction, including possible restrictions on his electrician’s license, an
inability to travel to Canada, and a federal prohibition on his possession of a
firearm.  On February 9, 2012, after confirming that petitioner had
completed his sentence, the trial court dismissed the petition for
post-conviction relief without prejudice.  The court did not specifically
address petitioner’s alternative request for extraordinary relief.[1]  
¶ 5.            
In dismissing the post-conviction-relief petition, the court opined that
the fact that petitioner was in custody at the time he filed his petition was
insufficient “to ensure that the court has jurisdiction.”  The court
concluded that because petitioner’s sentence had expired, it lacked
jurisdiction unless petitioner could allege a significant collateral consequence
as a result of the challenged conviction.  The court found that possible
restrictions on petitioner’s professional licensing, travel to Canada, and
possession of a firearm did not “amount to the kind of ‘substantial
infringements on liberty’ that require the court’s review of the underlying
conviction.”  The court invited petitioner to renew his request for
post-conviction relief “in the event that such a consequence may actually occur
in the future.”  This appeal followed.
¶ 6.            
On appeal, petitioner largely reiterates the same claims he raised in
his opposition to the State’s motion to dismiss.  Petitioner supplemented
his appeal with allegations of more specific collateral consequences,
including, among other things, potential problems with his electrician’s
licensure in Connecticut and New Hampshire, an inability to submit bids for
federal jobs, and disqualification as a corporate officer.  For the
reasons outlined below, we conclude that when a petitioner moves under § 7131
to challenge a conviction while still in custody for that challenged
conviction, the trial court possesses jurisdiction to hear the claim and
the expiration of the custodial term will not render the cause moot.[2]  
¶ 7.            
At the outset, it is incumbent upon us to clarify the appropriate
terminology.  Although the trial court and State frame the discussion as
one involving jurisdiction, the issue presented is more properly conceived of
as one of mootness.  “In a case such as this where the petitioner has been
released from custody but continues to suffer collateral harm because of his
conviction, the questions of subject matter jurisdiction and mootness might
easily be confused.  These questions are importantly distinct.”  Vasquez
v. Ryan, No. 11-2300, 2012 WL 959354, at *4 n.6 (E.D. Pa. Mar. 21, 2012)
(citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).    
¶ 8.            
To resolve a petition for post-conviction relief, a court must first
have jurisdiction.  Once jurisdiction has been established, and throughout
the pendency of the litigation, the court must also ensure that the controversy
remains live.  In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063,
1064 (1991) (“A controversy must remain alive throughout the course of appellate
review.”).  To remain a live controversy, the court must be capable of
affording a petitioner relief.     
¶ 9.            
As the U.S. District Court for the Eastern District of Pennsylvania
observed in Vasquez, jurisdiction for purposes of the related federal
post-conviction relief statute is measured at the time of filing. See 2012 WL
959354, at *4 n.6.  (“[J]urisdiction is determined by a one-time snapshot
of the petitioner’s condition at the time of filing.”); accord E.C. v. Va.
Dept. of Juvenile Justice, 722 S.E.2d 827, 830 (Va. 2012) (“While
intervening events may affect the nature of the relief available, they do not
end or extinguish the jurisdiction of the Court.”).  In the usual course,
a petitioner attacking a conviction under our state’s post-conviction relief
statute will file while incarcerated.  
¶ 10.         When, as
here, a petitioner files for post-conviction relief while still in custody
under a sentence imposed for the very same conviction he is challenging, the
court undoubtedly has jurisdiction.  See 13 V.S.A. § 7131 (“A prisoner who
is in custody under sentence of a court . . . may at any time
move the superior court of the county where the sentence was imposed to vacate,
set aside or correct the sentence.”).[3] 
Thus, we are left to determine whether petitioner’s release from that sentence
rendered his petition moot.  
¶ 11.        
We have previously addressed a situation in which a petitioner sought to
revive a potential collateral challenge to an earlier conviction by seeking
post-conviction relief while in custody on a sentence enhanced by that previous
conviction but not while in custody under the challenged conviction. See, e.g.,
In re Collette, 2008 VT 136, 185 Vt. 210, 969 A.2d 101 (affirming
mootness dismissal of PCR challenging 12-year-old, conclusively final
conviction filed while petitioner was in custody on sentence enhanced by
challenged conviction when enhanced sentence expired before review); cf. State
v. Boskind, 174 Vt. 184, 185, 807 A.2d 358, 360 (2002) (defendant
challenging earlier conviction based upon which State seeks sentencing
enhancement must lodge petition in post-conviction proceeding not at
sentencing).  We have similarly addressed a situation in which a
petitioner sought to challenge an aged conviction by filing a motion for
post-conviction relief after the custodial sentence for that conviction had
expired.  In re Smith, 144 Vt. 494, 496, 479 A.2d 152, 153 (1984)
(finding no jurisdiction under § 7131 when petitioner moved for relief after
completing kidnapping sentence and “failed to allege or demonstrate any
collateral consequence stemming from that sentence”).  And we have
considered situations in which it is unclear whether petitioners were ever held
under custodial sentences.  See, e.g., In re LaMountain, 170 Vt.
642, 643, 752 A.2d 24, 25 (2000) (lifetime revocation of driver’s license
insufficient to satisfy § 7131 jurisdictional requirement).  We have not,
however, confronted the precise question presented here: whether a petitioner’s
post-conviction claim of ineffective assistance of counsel—filed before the
expiration of the sentence for the challenged conviction—is rendered moot by
his release.  
¶ 12.        
After carefully reviewing our precedent and related case law from other
jurisdictions, we conclude that petitioner’s situation differs markedly from
those cases in which we have determined either that the trial court lacked
jurisdiction because of insufficiently pleaded collateral consequences or that
a trial court’s inability to address a long-final conviction rendered any
challenge to that conviction moot.  We consequently hold that when a
petitioner initiates a proceeding attacking the validity of a conviction for
which he is still in custody, his release from custody will not moot the
petition.
¶ 13.        
Our approach accords with that adopted by the U.S. Supreme Court in
considering the related federal habeas statutes.  In the federal courts,
once jurisdiction has been established in a post-conviction relief case, courts
presume the existence and sufficiency of collateral consequences flowing from
an allegedly faulty conviction without the need to articulate the same type of
particularized harm we have in our own law required to trigger initial jurisdiction
when a petitioner is no longer in custody.  See, e.g., Spencer v. Kemna,
523 U.S. 1, 8 (1998).  In Kemna, the U.S. Supreme Court noted that
federal courts “presume that a wrongful criminal conviction has continuing
collateral consequences, (or, what is effectively the same, [] count collateral
consequences that are remote and unlikely to occur)” to avoid mootness.  Id. 
(citing Sibron v. New York, 392 U.S. 40, 55-56 (1968)).  In Sibron,
the U.S. Supreme Court held that a “criminal case is moot only if it is shown
that there is no possibility that any collateral legal consequences will be
imposed on the basis of the challenged conviction.”  392 U.S. at 57; see
also Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (“Because of [the]
disabilities or burdens (which) may flow from petitioner’s conviction, he has a
substantial stake in the judgment of conviction which survives the satisfaction
of the sentence imposed on him.”) (citation and quotation omitted). 
¶ 14.        
In Carafas, the U.S. Supreme Court held that the federal courts’
jurisdiction to entertain a petition for habeas corpus did not lapse upon a
state convict’s release from prison.  391 U.S. at 238 (“[O]nce the federal
jurisdiction has attached in the District Court, it is not defeated by the release
of the petitioner prior to completion of proceedings on such
application.”).  The U.S. Supreme Court then went on to conclude that the
petitioner’s motion was not moot because of “disabilities or burdens (which) may
flow” from the challenged conviction, including the inability to engage in
certain businesses, disqualification as a union official, and a prohibition on
jury service, among other potentialities.  Id. at 237-38. 
Noting that the petitioner had diligently pursued his application since before
his release from state custody, the Carafas court stated:
[Petitioner] should not be thwarted now
and required to bear the consequences of [an] assertedly unlawful conviction
simply because the path has been so long that he has served his sentence.
Id. at 240. 
¶ 15.        
That is not, of course, to say that a petition for post-conviction
relief is never moot.  As we have recognized, a “case is moot if the
reviewing court can no longer grant effective relief.”  Moriarty,
156 Vt. at 163, 588 A.2d at 1064.  For example, in Collette, we
held that a petitioner’s challenge to a more-than-decade-old conviction used to
enhance a later drunk-driving sentence became moot when the later, enhanced
prison sentence expired.  2008 VT 136, ¶¶ 5-7.  Our holding in Collette
rested on the petitioner’s own failure to pursue the remedies available to him
and the attendant notion that the conviction he sought later to challenge had
consequently become final.  See id. ¶ 7 (“Petitioner offers no
justification why he is now entitled . . . to overturn a conviction never
contested as amply provided for by law.”).  The petitioner in Collette
could not challenge the predicate conviction because his failure to do so when
there might have been jurisdiction rendered it conclusively final. 
 Thus, his challenge went only to the enhancement of the later sentence
based upon an aged, previously unchallenged conviction he claimed was
invalid.  The court could not afford the requested relief, thereby
rendering his petition moot.  Id. ¶ 8.  
¶ 16.        
This Court in Collette cited favorably federal precedent
including Lackawanna Cnty Dist. Attorney v. Coss, 532 U.S. 394, 403
(2001), which, in denying habeas relief, relied on a federal petitioner’s
“choice not to seek review,” thereby yielding to the state’s compelling
interest in the finality of the convictions it obtains.[4]  Collette, 2008 VT 136, ¶
7.  In Lackawanna, the petitioner sought a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, arguing that he had received ineffective
assistance of counsel in connection with a 1986 state conviction that adversely
affected his sentence for a later crime.  532 U.S. at 397, 399.  He
filed his federal habeas petition in September 1994.  Id. at 399.[5]  The U.S. Supreme Court concluded
that a state had a compelling interest in the finality of a judgment that a
petitioner had not successfully challenged directly or indirectly.  Id.
at 402-04.  “[O]nce a state conviction is no longer open to direct or collateral
attack in its own right because the defendant failed to pursue those
remedies while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively valid.”  Id.
at 403.
¶ 17.        
Petitioner’s situation in this case differs dramatically from that of
the petitioner in Collette and Lackawanna.  He is pursuing
precisely the state remedy that the Lackawanna petitioner failed to
adequately prosecute, and any interest the State may possess in the finality of
a potentially infirm conviction does not attach.   See 532 U.S. at
403.  Nor is there any doubt that a trial court hearing a petition for post-conviction
relief has the capacity to provide relief in the form of a new trial should the
petitioner establish that he received ineffective assistance of counsel during
his trial.  See In re Russo, 2010 VT 16, ¶ 30, 187 Vt. 367, 991
A.2d 1073 (affirming trial court’s grant of a new trial after petitioner
alleged ineffective assistance of counsel in a post-conviction relief
proceeding).  This Court has previously held that: “post conviction
petitions require consideration even where release from confinement is not one
of the possible dispositions under the issues presented.”  In re Bashaw,
129 Vt. 393, 395, 278 A.2d 752, 754 (1971) (construing 13 V.S.A. § 7133). 
In fact, a new trial may be the only relief that a court could ever afford
petitioner because a Vermont court lacks jurisdiction to directly address
collateral consequences imposed by other jurisdictions.  The trial court
could no more order Canadian authorities to permit petitioner here to enter
their country than the court in Stewart could directly order Colorado
officials to release a defendant from custody on a Colorado sentence enhanced
by earlier, challenged Vermont convictions.  See Stewart, 140 Vt.
at 357, 438 A.2d at 1108.  Instead, the Vermont court had to consider on a
post-conviction challenge whether to vacate petitioner’s Vermont conviction,
the elimination of which Colorado officials agreed would be taken into
consideration during their own post-conviction proceeding.
¶ 18.        
Although post-conviction relief statutes vary greatly across the country,
we note that many states have arrived at the same conclusion—albeit for a wide
range of reasons—that the expiration of a custodial sentence for a challenged
conviction will not automatically moot a petitioner’s request for relief. 
See, e.g., Haynes v. Bronson, 539 A.2d 592, 594 (Conn. App. Ct.
 1988) (“The petitioner was in custody at the time he filed his petition
for habeas corpus. The expiration of his sentence prior to the decision of the
court below did not render his claims moot.”); Bennett v. State, 289
A.2d 28, 30 (Me. 1972) (“[O]nce jurisdiction has attached in our
post-conviction habeas corpus court by reason of the existence, at the time of
the filing of the petition, of the necessary actual or technical physical
restraint required by the statute, the unconditional release from custody
during the course of the proceedings and prior to final adjudication does not
deprive the courts of their jurisdiction to further entertain the issue
presented.”); Sebastian v. Mahoney, 2001 MT 88, ¶ 7, 25 P.3d 163
(mootness of habeas petition after release depends on whether court can grant
effective relief); Duran v. Morris, 635 P.2d 43, 45 (Utah 1981) (holding
moot prisoner’s challenge to administrative treatment to which he was no longer
subject but acknowledging as “clearly established” that claim challenging
conviction is never moot unless it can be shown there will no be adverse
collateral consequences);    E.C., 722 S.E.2d at 832-333
(juvenile’s post-conviction petition not rendered moot by discharge because of
collateral consequences, including registry, possible future sentence
enhancements, and a prohibition on gun ownership).  But see People ex
rel. Ganci v. Henderson, 380 N.Y.S.2d 191, 192 (App. Div. 1976)
(“While relator’s claims may be entertained in an appropriate proceeding, a
writ of habeas corpus is not available, since the relief sought would not
result in his immediate discharge.”); Commonwealth v. Ahlborn, 699 A.2d
718, 720-21 (Pa. 1997) (denying post-release relief to petitioner where statute
expressly limited writ to only those defendants “currently serving a
sentence”); Kemp v. State, 506 S.E.2d 38, 39 (W. Va. 1997)
(post-physical release habeas petition moot); cf. Tharpe v. Head, 533
S.E.2d 368, 369-70 (Ga. 2000) (permitting challenge to expired murder
conviction used to enhance later sentence and observing “mere fact that the
state sentence has been completely served should no longer be a bar to
attacking it through habeas corpus even though the petition is not initially
filed until after the sentence is completed”); Ex parte Oliver, 703
S.W.2d 205, 206 (Tex. Crim. App. 1986)  (applicant’s claim not moot
after service of sentence because he remained “subject to the possibility of
constraints on his liberty due to the existence of a prior felony conviction on
his record.”). 
¶ 19.        
We agree with the U.S. Supreme Court and other state courts that have
concluded that a petition for post-conviction relief when timely filed will not
automatically be rendered moot by release from the challenged conviction. 
Where relief may be granted, the court must consider the petition on the
merits.  To hold otherwise would effectively deprive petitioner—and all
others with short terms of imprisonment—of any opportunity to challenge the
effectiveness of counsel because we generally require such claims to be raised
in post-conviction proceedings.   See State v. McMann, 133 Vt.
288, 291, 336 A.2d 190, 192-193 (1975) (noting that a challenge based on
ineffective assistance of counsel was most properly raised during
post-conviction proceedings).  In McMann, this Court vacated a
conviction on direct appeal without reaching the defendant’s claims regarding
trial counsel’s alleged incompetence.  This Court said that even if it had
not found other grounds to vacate the conviction, it would have been reluctant
to consider ineffective-assistance-of-counsel claims during a direct
appeal.  See id.   We said:
We do not completely preclude the
possibility that such an attack might, in some instances, be successful. 
But to be so, all necessary facts would have to be apparent from the record of
the trial itself, an unusual circumstance.  Most, if not all, such claims
are properly asserted in post conviction proceedings, wherein this Court has
the benefit of facts found below.  
Id. 
If we are to require defendants to raise challenges based on ineffectiveness
assistance of counsel in post-conviction proceedings, we must afford them
adequate time to pursue them.  Otherwise, any right to challenge the
effectiveness of counsel would be merely illusory.   
¶ 20.        
Indeed, earlier in petitioner’s own case we declined to permit the
brevity of his sentence to interfere with the exercise of his statutory and
constitutional rights.  When we ordered petitioner’s prison sentence
stayed pending the outcome of his direct appeal, we expressly considered the
fact that his period of incarceration would elapse before a resolution.  Chandler,
2010 WL 7799086, at *1.  There is no reason to believe that a petition for
post-conviction relief could be litigated any more quickly than a direct
appeal.  Indeed, given the complicated nature of initiating and pursuing a
challenge based on ineffectiveness of counsel—including the identification of
expert witnesses—it is likely to take far longer.  See In re Dunbar,
162 Vt. 209, 212, 647 A.2d 316, 319 (1994) (noting “[d]efendant’s burden
is a heavy one” when alleging ineffective assistance of counsel); see also In
re Grega, 2003 VT 77, ¶ 16, 175 Vt. 631, 833 A.2d 872 (“Only in rare
situations will ineffective assistance of counsel be presumed without expert
testimony.”).  Leaving aside the lengthy delays that may occur organically
in the trial court docket, merely assembling the necessary evidence and
arranging for the requisite testimony to establish a claim of ineffective
assistance of counsel is a time-consuming process that is unlikely to be
completed before the expiration of many petitioners’ custodial sentences. 
As the U.S. Supreme Court observed in Sibron: 
Many deep and abiding constitutional
problems are encountered primarily at a level of “low visibility” in the
criminal process—in the context of prosecutions for “minor” offenses which
carry only short sentences.
392 U.S. at 52.
¶ 21.        
To deprive a defendant sentenced to a relatively short period of
incarceration of the ability to challenge a conviction resulting from trial
counsel’s failures is particularly unfair. Presuming that the length of
prisoners’ sentences corresponds to the severity of their crimes, then a rule
that automatically moots petitioners’ requests for post-conviction relief upon
the expiration of their prison terms would effectively work to punish more
severely those who are less blameworthy than those with longer sentences. 
See Vt. Const. ch. II, § 39 (“[A]ll fines shall be proportioned to the
offences.”).  This is particularly troubling when considering that the
collateral consequences that flow from a felony conviction most often attach
automatically, without regard to the relative severity of the underlying
crime.  For example, the federal prohibition on the possession of firearms
makes no distinction on the basis of the triggering felony.  See 18 U.S.C.
§ 922(g) (“It shall be unlawful for any person . . . who has been convicted in
any court of a crime punishable by a term of imprisonment for a term exceeding
one year . . . to . . . possess in or affecting commerce any
firearm . . . .”).
¶ 22.        
We have demanded that a defendant challenging an allegedly faulty
conviction do so in a timely fashion or risk that it becomes conclusively
valid.  Collette, 2008 VT 136, ¶ 7 n.2.  When that challenge
is based on a claim of ineffective assistance of counsel, however, we have also
expressed a preference for that cause to be brought in a post-conviction
proceeding under 13 V.S.A. § 7131.   McMann, 133 Vt. at
291, 336 A.2d at 193.  Given these competing demands, petitioner here
could not have brought his claim for ineffective assistance of counsel any
earlier.  Nor could he have filed it any later.  Indeed, if we were
to affirm such an application of the mootness doctrine to petitioner and others
with similarly short sentences, there would quite simply be no appropriate time
to challenge a conviction obtained in violation of a defendant’s right to
effective assistance of counsel.  As this Court has recognized, this
cannot be.  Boskind, 174 Vt. at 192, 807 A.2d at 365 (pledging to
address by “administration or rule” situation, should it arise, in which
post-conviction petitioners were unable to obtain relief because enhanced
sentences expired before challenge to underlying conviction could be
resolved).    
¶ 23.        
As the U.S. Supreme Court aptly observed in Sibron, there is no
value in delaying a petitioner’s ability to seek redress for a potentially
illegal conviction—presumably until the occurrence of some collateral
consequence so severe as to trigger jurisdiction independently.  See 392
U.S. at 57 (1968).  “None of the concededly imperative policies behind the
constitutional rule against entertaining moot controversies would be served by
a dismissal in this case.  There is nothing abstract, feigned, or
hypothetical about [the] appeal.”  Id.  Particularly relevant
to petitioner’s claim of ineffective assistance of counsel here, “litigation is
better conducted when the dispute is fresh and additional facts may, if
necessary, be taken without a substantial risk that witnesses will die or
memories fade.”  Id.  As we said ourselves in Boskind:
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 . . . we seek the benefit of
ensuring that constitutional attacks on convictions are resolved as early as
possible, whatever the risk this may pose to an increase in judicial workload. 
174 Vt. at 192, 807 A.2d at
365.  
¶ 24.        
We may at some time in the future be called upon to revisit the matter
and to delineate the precise point at which the state’s interest in finality
and administrative ease becomes so compelling as to render a potentially
illegal conviction conclusively valid.  This is surely not that
time.  There is no question that when, as here, a person files a petition
for post-conviction relief while still in custody for the challenged
conviction, a court has jurisdiction.  And once the court has
jurisdiction, the expiration of a petitioner’s custodial sentence under the challenged
conviction before the motion may be addressed through no fault of his own will
not render his request moot.  We therefore reverse and remand for
proceedings not inconsistent with this opinion.
Reversed and
remanded.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 
 
¶ 25.        
DOOLEY, J., concurring.   I concur with the majority’s
mandate reversing the dismissal of petitioner’s post-conviction-relief (PCR)
petition but write to express my belief that this case cannot rationally be
distinguished from In re Collette, 2008 VT 136, 185 Vt. 210, 969 A.2d
101, wherein we denied similar relief.  In my view, limiting today’s
holding to exclude enhanced-sentence cases merely ensures that the commitment
we made in State v. Boskind, 174 Vt. 184, 807 A.2d 358 (2002) to provide
a non-illusory remedy for defendants challenging enhanced sentences based on
allegedly defective predicate convictions will remain unfulfilled.
¶ 26.        
In Boskind, this Court determined that Vermont’s PCR statute, 13
V.S.A. § 7131, allows defendants to attack “the constitutionality of a prior
[previously unchallenged] conviction used to enhance the defendant’s sentence”
on a new conviction.  174 Vt. at 185, 807 A.2d at 360.  In a dissent
joined by Justice Johnson, I agreed that defendants could attack previously
unchallenged convictions used to enhance a sentence from a later conviction,
but warned that limiting such challenges to PCR actions following the imposition
of the enhanced sentence provided only illusory relief because defendants would
most likely have served their sentences before being able to obtain
post-conviction relief.   Id. at 193-94 (Dooley, J.,
dissenting).
¶ 27.        
Unfortunately, my prediction was fulfilled—indeed reinforced—in Collette,
where a majority of this Court dismissed a PCR petition filed while the
petitioner was still serving an enhanced sentence he claimed was based on an
unlawful prior conviction.  We held that the petitioner was not entitled
to relief because his enhanced sentence had expired before the superior court
was able to review his petition.  2008 VT 136, ¶ 1.  Thus, in that
case, the majority denied petitioner an opportunity to challenge the predicate
conviction and consequent enhanced sentence even though he had filed his PCR
petition while still serving the enhanced sentence.  According to the
majority in Collette, no relief was available that could cure any
adverse collateral consequences stemming from the predicate convictions because
those convictions were unassailable.  Id. ¶ 13.  Once again, I
dissented with Justice Johnson joining, pointing out that we had failed to
honor our commitment in Boskind to “ ‘calibrate a practical remedy’ ” by
administration or rule if it turns out “ ‘defendants are serving all or most of
their sentence prior to a PCR determination that the [challenged] predicate
convictions used for enhancement are constitutionally infirm.’ ”  Id.
¶ 20 (quoting Boskind, 174 Vt. at 192, 807 A.2d at 365).
¶ 28.        
Recognizing the controlling effect of Collette, the trial court
in this case dismissed the PCR petition even though petitioner had filed the
petition while he was still in custody.  The court ruled that the adverse
collateral consequences stemming from the conviction were not sufficient to
retain its jurisdiction to address the petition.  I agree with the
majority’s reversal of this decision, but the trial court was correct in
concluding that Collette controls this case.  Rather than rely upon
a strained, insupportable rationale for distinguishing Collette, we
should overrule Collette and enforce our commitment in Boskind.
¶ 29.        
Because the instant case involves a highly unusual fact pattern, the
relief the majority offers under the reasoning employed here will in fact
provide no relief in the vast majority of PCR cases.  After his motion for
a stay of his sentence was denied by the trial court, petitioner sought and
obtained a stay pending appeal from this Court.  Consequently, following
our affirmance of the underlying conviction, petitioner was able to file his
PCR petition before his sentence expired.  This is not the typical case,
however.  In most cases, the underlying sentence will not be stayed
pending appeal and thus relief through PCR proceedings will not be available by
the time any appeal of the underlying conviction is resolved.  In short,
our holding today will provide little relief for most would-be petitioners and
will not ameliorate the illusory nature of the relief provided in Boskind.
¶ 30.        
The majority initially draws what appears to be a firm line that “the
expiration of the custodial term will not render the cause moot” with respect
to a PCR petition that is filed during the custodial term and that challenges a
conviction for which he is still in custody.  Ante, ¶ 6.  I
agree with this general holding and join the majority’s mandate in this
case.  In my view, however, the majority’s analysis becomes untenable when
it attempts to distinguish Collette.
¶ 31.        
It is important to understand that Collette contains two relevant
holdings: the one that the majority attempts to distinguish and the one that
makes Collette indistinguishable.  The first is, of course, the
holding in Collette that the PCR case was moot and had to be
dismissed.  That is the holding the majority seeks to distinguish.  I
will return to that holding shortly.
¶ 32.        
The second holding relates to which conviction the PCR petitioner must
challenge, at least initially, to obtain effective relief—the defective
predicate conviction or the enhanced sentence conviction which is based on the
predicate conviction.  Before Collette, PCR petitioners attacked
the predicate conviction on the basis that if the attack were successful the
predicate conviction would disappear and the petitioner could then move to
reopen the enhancement conviction.  Under this approach, the petitioner
met the PCR requirement of being “in custody under sentence” primarily by
serving the enhanced sentence.
¶ 33.        
That a petitioner could proceed in this way was made explicit in In
re Stewart, 140 Vt. 351, 438 A.2d 1106 (1981).  Unable to attack in
Vermont courts a Colorado conviction and sentence lengthened due to prior
Vermont convictions, the petitioner in Stewart instead attacked the
underlying Vermont convictions in a PCR proceeding in Vermont.  Noting
that the petitioner was serving an aggravated Colorado sentence based in part
on the prior Vermont convictions, this Court held that petitioner was in custody
under sentence for purposes of 13 V.S.A. § 7131 even though the custody was
occurring in another state and the sentence had been imposed in that
state.  Id. at 359-60, 438 A.2d at 1109.
¶ 34.        
Because petitioner could not directly challenge the out-of-state
conviction, the Court in Stewart necessarily allowed a collateral
challenge to the predicate Vermont convictions even though they had occurred
many years earlier and had not been collaterally challenged before expiration
of the Vermont sentences imposed from those convictions.  In doing so,
this Court responded directly to the argument that the convictions were too
stale to be challenged.   The State argued that petitioner’s attack
on the predicate convictions was barred by laches, and this Court rejected that
argument.  Id. at 360-61, 438 A.2d at 1110.  We noted that
§ 7131 expressly provides that PCR petitions may be filed “at any time”
and that this Court had already addressed the merits of PCR petitions attacking
convictions that were eighteen and twenty-three years old.  Id. at
360, 438 A.2d at 1109.  We acknowledged the state’s interest in the
finality of criminal convictions, but pointed out that the difficulty in proof
over time weighed more heavily on petitioners, who were allocated the burden of
proof in PCR petitions, and that post-conviction relief is neither a vehicle
for reexamining guilt or innocence nor a substitute for appeal.  Id.
at 360-61, 438 A.2d at 1109.  We concluded that such “safeguards
adequately protect the state’s interest in finality.”  Id. at 361,
438 A.2d at 1110.
¶ 35.        
Without so much as a passing reference to Stewart, the Collette
majority effectively overruled that case.  In Collette, the
petitioner filed a PCR petition, claiming that his 2005 conviction for driving
while intoxicated, second offense (DUI-2), was the result of a 1992 DUI
conviction that had been based on an uncounseled guilty plea without a proper
colloquy under Rule 11 of the Vermont Rules of Criminal Procedure.  A
majority of this Court concluded that PCR petitioners may seek to overturn
enhanced sentences but not the underlying predicate convictions, no matter what
their infirmities, because those convictions are final and unassailable upon
expiration of their direct sentences.  See 2008 VT 136, ¶¶ 5-8.  The
majority in Collette thus reasoned that post-conviction relief was no
longer available to the petitioner once the enhanced sentence expired, even
though the petition had been filed before its expiration, because “the
challenge here is to the enhanced sentence rather than the fact of petitioner’s
long-final prior DUI conviction.”  Id. ¶ 17.
¶ 36.        
The effect of this holding in Collette is that there is no
relevant difference between an enhancement conviction and the conviction in the
instant case for purposes of mootness.  To judge that, we should compare
what would happen to petitioner in this case if he prevails on his PCR petition
with what would have happened to the petitioner in Collette if he had
been allowed to go forward and then prevailed.  In this case, a conclusion
that petitioner had ineffective assistance of counsel in the underlying
criminal case would result in striking that conviction, subject to the State’s
right to retry petitioner.  Petitioner’s victory would have no effect on
his punishment, of course, because he has already served his sentence.
¶ 37.        
If the petitioner in Collette had been allowed to proceed and
then prevailed, the conviction for DUI-2 would have been struck.  The
State could not have retried the petitioner in Collette for DUI-2
because of the deficiency in the predicate offense and the Collette
holding that the predicate offense could not be overturned.  He would
still have been found guilty of DUI-1, but the punishment for this offense is
less in multiple ways than the punishment for DUI-2.  Most importantly, if
the petitioner in Collette had instead been convicted of DUI-1 and then
later was charged with a new DUI, he would have faced a significantly less
severe penalty for DUI-2 than if charged with DUI-3.  Compare 23 V.S.A.
§ 1210(c) (providing that person convicted of DUI-2 is subject to two
years in prison and $1500 fine) with id. § 1210(d) (providing that
person convicted of DUI-3 is subject to 5 years in prison and $2500 fine).
¶ 38.        
I recognize that allowing a PCR petitioner to proceed when there is an
enhancement conviction as compared to a conviction without enhancement could
have differing results, but those differences have nothing to do with
mootness.  The argument for allowing a petitioner in the Collette
petitioner’s circumstances to proceed is as strong, if not stronger, than any
argument for allowing the petitioner in this case to proceed.  Indeed, I
would say it is stronger because the petitioner in Collette would have
faced the risk of a further enhanced punishment under the statutory scheme at a
later time.  As I noted in my dissent in Collette, petitioners in
such a position are potentially placed on a treadmill that prevents them from
ever challenging enhancement charges before mootness occurs.  Id. ¶
29 (Dooley, J., dissenting).
¶ 39.        
The salient point on the issue of mootness is that, notwithstanding the
majority’s attempt to distinguish Collette, both the petitioner in Collette
and the instant petitioner are challenging convictions “while still in
custody for that challenged conviction.”  Ante, ¶ 6. 
Whatever the theory on which each petitioner hoped to prevail, both of them
challenged only one conviction—in Collette the DUI-2 conviction and in
this case the impeding-a-public-officer conviction.  Just as the
petitioner in this case could not raise ineffectiveness of counsel in his
criminal trial, the petitioner in Collette was prohibited from raising
the invalidity of the predicate conviction as a defense to the DUI-2 charge.[6]  See Boskind, 174 Vt. at 185,
807 A.2d at 360. (holding that challenges to predicate convictions used for
enhancement must be made in PCR proceedings following imposition of enhanced
sentence).
¶ 40.        
The majority suggests that an enhancement conviction can be
distinguished from the conviction in this case based on the staleness of the
predicate convictions in the enhancement situation.  This distinction relies
upon language relating to the second Collette holding discussed above as
if it is determinative of the mootness holding.  The majority’s
description of the Collette petitioner as not being “in custody under
the challenged conviction” when he filed his PCR petition is not an accurate
reflection of that decision.[7] 
Ante, ¶ 11.  In fact, the second holding of Collette is that
a petitioner may challenge only the enhancement conviction and not the
predicate conviction.  Thus, the staleness of the predicate conviction is
irrelevant to the application of mootness because the petitioner in this case
is not challenging that conviction except to argue that it cannot be used for
enhancement.  Ironically, the majority relies on our promise in Boskind
to ensure an effective remedy in enforcement cases while at the same time
reaffirming a Collette holding that ensures that there will be no
remedy, effective or otherwise, in such cases.
¶ 41.        
As for its mootness ruling, the majority in Collette applied the
general principal that a case becomes moot “ ‘when the issues presented
are no longer live or the parties lack a legally cognizable in the
outcome.’ ”  Collette, 2008 VT 136, ¶ 4 (quoting State v.
Lee, 2007 VT 7, ¶ 10, 181 Vt. 605, 924 A.2d 81).  It held that “there
was no relief left to be ordered” once the enhanced sentence was completed and
nothing could be corrected by court order.  Id.  The same can
be said of this case.  Absent an alternative restraint on petitioner’s liberty
sufficient to support a PCR claim, this case must be considered moot under our
current law because, as in Collette, the sentence for the only
conviction that may be challenged has been fully served.[8]
¶ 42.        
The majority’s analysis mirrors federal law creating a dichotomy between
the legally cognizable injury necessary in habeas cases to exercise
jurisdiction as opposed to the injury necessary to withstand mootness
claims.  Irrespective of whether this dichotomy makes sense, the
majority’s rationale is squarely blocked by the Collette decision. 
As discussed above, Collette disregarded controlling precedent.  In
addition, it turned post-conviction relief into a remedy available only for
felony convictions resulting in lengthy sentences.  Hence, the
circumstances present grounds for overruling Collette without
undermining our adherence to the principle of stare decisis.  I would
reach the majority’s result via the only true path—overruling Collette.
¶ 43.        
I am authorized to state that Justice Robinson joins this concurrence.
 
              
                                                                  _____________________________________
                                                                                
Associate Justice
 





[1]  Given our disposition of this case, we
do not address petitioner’s request for extraordinary relief.


[2]
 Because there is no question that the trial court had jurisdiction when
petitioner filed, we need not decide whether any of the alleged collateral
consequences would have been sufficient to trigger jurisdiction if petitioner
had moved for post-conviction relief after his release from custody for
the challenged conviction.


[3]
 A petitioner does not necessarily have to be in physical custody to
trigger jurisdiction under § 7131.  We have for decades interpreted the
statute’s jurisdictional “in custody under sentence” requirement broadly,
permitting challenges through post-conviction review where a convicted person
alleges a substantial restraint on liberty in the form of collateral
consequences.  In re Stewart, 140 Vt. 351, 359-60, 438 A.2d 1106, 1109 (1981) (“[A] person is ‘in custody’ for the purposes of 13 V.S.A. §
7131 if he suffers a significant restraint on personal liberty as a direct
result of the challenged Vermont conviction.”).  In effect,
significant restraints on liberty short of incarceration may substitute for the
in-custody jurisdictional requirement of the post-conviction relief
statute.  See id.  It is in those cases where we have demanded
a particular degree of specificity regarding the restraint and a certain
sufficiency of harm.  


[4]  We frequently refer to federal case
law in the interpretation of our own post-conviction relief statute because, as
we have observed, our statute is in the nature of habeas corpus.  See,
e.g., Collette, 2008 VT 136, ¶¶ 6-8 (referring to federal case law); In re
Laws, 2007 VT 54, ¶¶ 13-17, 182 Vt. 66, 928 A.2d 1210 (discussing
previous application of federal precedent to elucidate appropriate standard for
review of successive post-conviction petitions).    We
acknowledge, however, that we must be wary of relying on federal case law to
limit a petitioner’s rights given the fact that federal courts reviewing state
sentences under 28 U.S.C. § 2254 sit in a decidedly different
position.  Much of the federal case law relies on the availability of
precisely the same state-law procedures that an overly restrictive
interpretation of our own post-conviction relief statute would limit.  Cf.
Stewart, 140 Vt. at 359, 438 A.2d at 1109 (“[T]he federal courts are now
closed to numerous claims cognizable under 13 V.S.A. § 7131.  Given our
state’s explicit commitment to the availability of post-conviction relief, it
would be incongruous to construe ‘in custody’ so that many petitioners, perhaps
illegally restrained, could not obtain review.” (citations omitted)); Boskind,
174 Vt. at 189, 807 A.2d at 363 (“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.”).       


[5] 
The Lackawanna petitioner had filed a petition for relief from the 1986
conviction under Pennsylvania’s post-conviction relief statute in 1987, but
neither the petitioner nor the state could explain why no state court had ever
resolved the request.  532 U.S. at 397-98.


[6]
The petitioner in Collette argued that the predicate conviction could
not be used for enhancement for two reasons—petitioner had been denied his
right to counsel, and the court had not complied with Rule 11 in taking his
guilty plea.  See 2008 VT 136, ¶ 1.  The statement in the text applies
to the second ground.  Following Custis v. United States, 511 U.S.
485 (1994), this Court held in Boskind that defendant could raise in the
enhanced sentencing proceeding that the predicate conviction was invalid
because of a denial of the right to counsel in violation of Gideon v.
Wainwright, 372 U.S. 335 (1963).  Thus, if Collette had
involved only the right-to-counsel claim, it would be accurate to state that
petitioner wanted a second opportunity to make his denial-of-counsel challenge,
having failed to do so when it was first available. See 2008 VT 136, ¶
22 n.3 (noting that although denial-of-counsel claims “may” be raised in
enhanced sentencing proceedings, “nothing in Boskind or the federal case
law upon which it relied precludes defendants from later raising such claims in
PCR proceedings”).  By comparison, petitioner never had the opportunity to
present is Rule 11 claim, though the Collette majority treated both
claims the same in its mootness ruling.
 


[7]  This inaccurate description in ¶ 11 is
repeated in ¶¶ 15 and 22.  The majority states in the last sentence of ¶
15 that the Collette Court “could not afford the requested relief,
thereby rendering his petition moot.”  In fact, the Court in Collette
could have “afford[ed] the requested relief,” as here, by allowing the case to
go forward and strike the enhancement if the petitioner prevailed.


[8]
We have suggested in the past that restraints on liberty beyond incarceration
or supervision by the Department of Corrections could qualify as “custody”
under 13 V.S.A. § 7131.  See, e.g., Stewart, 140 Vt. at 358,
438 A.2d at 1108-09 (listing various non-incarerative consequences of criminal
convictions that may constrain individuals’ liberty sufficient to support
claims for post-conviction relief).  Given the analysis embraced by the
majority, we need not decide today whether, even in the absence of petitioner’s
brief period of incarceration, the other legal constraints arising from
defendant’s conviction would support a PCR petition.



