*1 2008 VT In re Paul Collette 101] [969 No. 07-040 Burgess, Johnson, Skoglund CJ., Dooley, Reiber, JJ. Present: Opinion December Filed Reargument Denied December Motion for *3 Matthews, Valerio, General, Pris- F. Dawn Matthew Defender (On Office, Gardner, Robert Law Clerk Rights oners’ and Brief), Petitioner-Appellant. for Montpelier, Donovan, Jr., Attorney, and County
Thomas Chittenden State’s Johnson, for Attorney, Burlington, Deputy Pamela Hall State’s Respondent-Appellee.
¶ Burgess, the trial dis- appeals J. Petitioner court’s (PCR) of for request post-conviction pursuant missal relief § that his sentence for complained 13 V.S.A. 7131. Petitioner (DUI-2) en- Driving Under the Influence-Second Offense was on an first improper prior hanced account of for a DUI-1, plea of of claiming guilty offense earlier was Amendment, uncounseled in violation of the and without the Sixth recitations for a valid under Rule 11 of the necessary Rules of Criminal Procedure. Because was Vermont discharged from court his sentence before the trial reviewed the claim, petition the court moot. dismissed We affirm.
¶ 2. Following his conviction and for DUI-2 on sentence October 11, 2005, petitioner pro filed this for PCR se on Novem- 1, 2005, collaterally attacking ber his 1992 DUI-1 At conviction. the time of filing, petitioner was on under a probation suspended DUI-2, months eighteen years to five for his 2005 and person custody was a “in so under sentence of a court” entitled § 231, seek PCR pursuant Wargo, 7131. See State 234-35, that probationers (holding were statute). custody” “in purposes the PCR on While still probation, and with the help attorney, petitioner an filed 7, 2006, amended PCR complaint April alleging violations of right counsel and Rule and requesting the court to “vacate the convictions and sentences entered him.” against month, 3. The on May next petitioner was discharged probation from his underlying sentence for the DUI-2 con- jurisdiction viction. Asserting lack expiration due to the sentence, the State moved for August dismissal on 2006. The trial court dismissed the action as moot on December over, reasoning that since the sentence further court action to “undo the past reduce sentences that has futile, served” would be regardless jurisdiction. Peti- appeals, tioner arguing dismissal in error because met he jurisdictional requirements of 7131 when the action was commenced.
¶ 4. jurisdiction That the court had when the PCR was *4 filed does not mean the action was not moot when the trial court considered the motion dismiss. An action “becomes moot when the issues presented no or the a longer parties live lack cognizable Lee, in legally interest State v. outcome.” 2007 VT 214 omitted). (mem.) ¶ In 605, (quotation A.2d 81 924 it obvious correctly court observed that was the trial regard, assuming the 1992 no to be
there was relief left ordered: no petitioner was assailable procedurally, to DUI-1 was guilty corrected that could be subject any enhanced sentence longer subject § jurisdiction over the order. by Regardless court it correctly PCR, trial court also observed matter of a sentence that had not reverse time undo could court, by As trial passed. determined moot. briefing length, petitioner issue at 5. While not conclusion, that, he vested remained contrary to court’s
posits
back
getting
“one
in
his “license
having
in
less conviction” and
—
in
that PCR
result
presumably
theory
on
sooner”1
Petitioner
erasure of his earlier 1992 DUI-1 conviction.
by
of the
afforded
post-conviction
the nature
relief
misapprehends
on a
§
of a current sentence based
nullify
enhancement
determined,
procedurally faulty,
in
hindsight,
conviction
prior
never
is final because it was
prior
but where
itself
As we
in
v.
timely
a
fashion.
held
appealed
challenged
Boskind,
(2002),
A.2d at
Lackawanna foreclosed even those attacks in federal court: “If that
sentence,
conviction is later used to enhance a criminal
generally
the defendant
through
the enhanced sentence
ground
...
on the
prior
unconstitutionally
conviction was
obtained.”
undermines independent of the several options otherwise available to petitioner and other defendants by they which can freely challenge procedural validity guilty pleas. of earlier For example, may defendants deficiency assert a a guilty plea 32(d). pursuant timely to a motion to withdraw under V.R.Cr.P. Such motion be made prior days to or within 30 entry of judgment, and “at any subject time” a defendant not addition, defendants, incarceration. Id. In including peti tioner, may file for post-conviction relief challenging validity their plea time they while remain “in custody under sentence,” including probation. 7131; while on 13 V.S.A. State v. Yates, (1999). Petitioner here was convicted and sentenced on his first DUI offense in September 1992, and was not discharged from probation nearly until August 1994, providing a two-year window in which to obtain post- conviction relief based on allegedly plea. deficient That peti tioner sat on rights years two cannot be attributed to Boskind. — ¶ 12. Nor the case contrary to the dissent’s —
assertion that petitioners who choose for whatever reason to ignore these timely more procedures and filing defer the of a until an enhanced sentencing proceeding will after *7 invariably find the claim mooted completion of their sentence. here, Petitioner for example, filed his original pro se petition within three weeks of sentencing and appointed counsel was less than Nevertheless, a month later. his amended petition was not later, filed until months with no apparent effort to alert the five court to a need for expedited handling, notwithstanding the clear warning Boskind that petitioner’s potential discharge from probation, which later, occurred seven weeks would moot the matter. Had petitioner filed a timely more amended petition or a motion to expedite, there is no evident reason why could not have been heard and resolved before his discharge from probation. The so-called promise Boskind upon which the 218 revisit the issue no than a commitment to relies was more
dissent “right of a the dissent’s prediction if cases revealed subsequent — — problem.” to “a real not theoretical remedy” without shows, here at 365. As the record at 807 A.2d past from his own separated cannot be petitioner’s circumstance a lack inaction, the dissent’s concern for or inattention abstract, less for the than remedy appears except remain diligent. collateral proffers negative The dissent further several 13. enhanced sentence that relating to defendant’s
consequences P.S., alive. In re keep controversy See Vt. allegedly should (1997) (even moot, 63, 67, if 702 A.2d otherwise likely legal life “negative retain review). those from the action under None of adverse result” curable, however, prevailed even petitioner were consequences, was, quite literally, claim of Rule 11 There noncompliance. his the trial court it dismissed no relief to be obtained from when case. First, received the dissent notes that petitioner
mandatory enhanced on the suspension license based earlier even completed which remained effect after he his Assuming, argument, petitioner’s for the sake of sentence. so as guilty proeedurally first DUI was deficient DUI, enhancement of his sentence for the second invalidate license suspension similarly does not follow the enhanced was all, despite assumption, Nor does it the dissent’s invalid. follow would be entitled to immediate reinstatement his “vacate, petitioner may license. While seek set aside correct statute, pursuant the sentence” 13 V.S.A. suspension no sentence. It is settled that suspension license was civil, criminal, Strong, not a “a sanction.” See State v. Vt. (1992) 56, 60-62, (characterizing license measure, the “nonpunitive purpose” remedial suspension LaMountain, “clear and see In re compelling”); which was also (PCR (mem.) guilty plea custody,’ “not ‘in and the court lacked challenging was all jurisdiction to hear where that remained civil petition” license). merits of Regardless suspension DUI, and PCR, remain twice convicted of petitioner beyond post- reach of suspension of his license length conviction relief.
219 ¶ that, The next should claim 15. dissent asserts successful, of be he would entitled to reconsideration $400 part fine that of criminal sentence for the second DUI. was his First, argument. inhere in this did not Several flaws claim and therefore did not it for preserve raise the below 49A, Yoh, Second, 2006 36. while appeal. consideration VT involuntary payment some have held that the fine courts adverse sufficient to defeat a consequence constitute an mootness, payment claim of the fine and here were the result of by voluntary, peti the court as and agreement accepted showing contrary. Compare tioner makes no claim to ¶22, 20, 2004 PA A.2d 454 Viglione, Super Commonwealth 842 (payment voluntary of fine was not and did not moot where appeal paid defendant tried found guilty pending appeal and and fine (Conn. imprisonment), defer with State v. Arpi, A.2d 2003) (defendant’s App. payment pursuant Ct. fine to plea moot). agreement was voluntary appeal rendered ¶ Moreover, recognition negative 16. our collateral con sequences as an exception mootness is limited to situations where proceeding to a decision in an otherwise dead “justified by a prospect sufficient decision have an will impact parties.” on the Cycle, All Inc. v. Chittenden Solid Waste Dist., 428, 432, 164 Vt. (quotation omitted). example, For have “negative we found collateral conse quences likely” adjudication from the recognized stigma of an of mental illness involuntary hospitalization, keep so as appeal despite alive termination of temporary hospitalization. J.S., (2002) (mem). State v. fine, made showing Petitioner no whatsoever that his $400 well below maximum fine for first-offense under 23 $750 DUI 1210(b), § V.S.A. “likely” to be upon reduced reconsideration. fine, no Petitioner offered for the support notion arrived plea agreement, was enhanced at all. Certainly there was no particular enhancement under the DUI-recidivist statute up to a fine providing for second-offense DUI. V.S.A. $1500 1210(c). Any prospect that some of the fine would be refunded nil, slight justify and is insufficient the continued application judicial a remedy resources towards that is purely speculative. Finally, dissent contends that the controversy
here remains live because the 1992 DUI conviction carries the As earlier consequences. future negative possibility unspecified however, noted, is to enhanced here prior DUI conviction. long-final of petitioner’s rather than fact stigma Furthermore, where a social apart situation J.S., hospital, commitment to mental involuntary to an attached *9 55-56, to hold that at we have declined at 817 A.2d 174 Vt. is suffi- negative of collateral possibility mere the Moriarty, In re of mootness. See finding to avoid cient (1991) 163-65, of (holding appeal and claim that rejecting transfer moot officer’s administrative pros- on possibility unspecified “employment of adverse affect negative consequence was sufficient collateral avoid pects” mootness).
¶ characterization, renege on no Contrary to the dissent’s we 18. one of defendants promise problem, emerge, to solve a should account from enhanced sentences on being denied relief is one case procedurally prior convictions. Petitioner’s suspect in the six since where the years to our attention Boskind brought ending before remedy sought is moot on account of sentence — here, just likely result apparently, his PCR was decided as from from an indeterminate discharge probation a fortuitous trial ordinary of time on this docket court. passage but did not. requested expedited hearing, Petitioner could have an might clearly timely pled, or more His have been more dozens, probably one of complaint but was not. Petitioner’s hundreds, nondescript petitions of otherwise PCR and other not important, with Their are yearly superior filed court. merits courts, as obligation superior but it should not identify without unilaterally analyze, and impose, dissent case, from familiar with the prompting assistance counsel worthy In complaint any one is more of attention than another. case, other, event, it is not all clear in this or in at effectively opportunity has an deprived been by operation enhanced of Boskind erroneously correct alone.
¶ doctrine, we find no mootness Accordingly, exception 19. judgment. no basis to disturb the trial court and Affirmed. Dooley, J., Not dissenting. long ago, we made the follow-
ing statement: predi-
If in cases of attack PCR decisions cate DUI convictions demonstrate defendants all or serving most their sentence to a PCR the predicate determination that convictions used for infirm, are constitutionally Supreme enhancement Court administration or rule calibrate a practical — — remedy to a not problem. real theoretical (2002). Boskind, State v. ¶21. statement, Despite this today’s majority decision demon- (1) strates realities: this Court two will honor the commitment Boskind; language above because of the ruling, mootness is an post-conviction relief even more limited remedy than the majority Boskind understood it to be. As of relief today, whatever effective remained after now exists Boskind decision, only theory. majority While the most dissent, above, about I point the second noted return to the point first the end of the dissent. 22. The apparently recognizes had the
right challenge validity to the of his in underlying DUI conviction because, this proceeding PCR at the time he the filed PCR petition, serving he was still the enhanced sentence from the Yet, latest DUI conviction. the majority effectively nullifies that right by upholding the trial court’s and rigid flawed mootness ruling. support ruling, In of that the makes remark- two able pronouncements aimed at demonstrating that will not any suffer collateral consequences as the result the (1) dismissal his petition. According to the majority, even in petitioner were to his prevail challenging enhanced by sentence demonstrating the predicate unlawfulness his DUI that conviction would continue to have full force apart and effect sentence; from supporting therefore, the current enhanced and mandatory the suspension enhanced of petitioner’s driver’s license part in from earlier resulting the conviction remains in effect and is not an consequence adverse collateral sufficient preclude to his petition being from dismissed as moot. Both of these pronounce- plainly ments I wrong,3 and therefore dissent. dissent, plainly wrong, tangential although Also to thrust of the the majority’s ruling ability bring petition challenging to PCR a the case,
¶23. to we must return the fully present To understand Boskind, argued the that he should a case in which defendant in the directly conviction predicate DUI challenge able in an that resulted DUI criminal case phase of a later sentencing a in Boskind held sentence. The divided Court enhanced his or could not have subsequent DUI convicted of defendant DUI conviction was if the predicate sentence enhanced her compliance substantial without unlawfully guilty based on a relief post-conviction further concluded V.R.Cr.P. but with only the and proper procedure court was superior in the A.2d at challenging the conviction. predicate enhanced DUI sentence facing of defendant (upholding right used to constitutionality “the of a conviction prior [DUI] to attack sentence”). Thus, re- Boskind the current enhance defendant’s in challenge predicate the quires defendant court, then, if in the superior PCR and separate proceeding successful, court sentencing to the DUI return PCR have the enhanced sentence stricken. improperly I in from 24. Justice Johnson dissented Boskind challenge to the predicate that a defendant’s holding Court’s in a unless subsequent proceeding made PCR to be conviction had been obtained the claim that, as a to counsel. Our concern was right violation matter, cases have in most a defendant would practical forth- the time relief was served enhanced in the thus would be coming proceeding, PCR defendants 193-94, real relief. effectively precluded obtaining any from Id. at J., (Dooley, dissenting). responded A.2d at The Court the statement I at the start of this quoted that concern with dissent. right leading proceeding predicate in the conviction. denial of the to counsel raising majority wrongly precluded states The proceeding proceeding to raise because he failed imposed Although petitioner could have raised such enhanced sentence. directly required sentencing proceeding, he was to do claim the enhanced majority acknowledges, that a denial-of-eounsel claim so. As law is settled “may” sentencing proceeding. nothing in directly in But be raised the enhanced *11 upon precludes from or the law it relied defendants
Boskind federal case which Indeed, raising opposite proceedings. suggested in later such claims PCR we holding upon in “that a collateral to a conviction which defendant’s solely invalidity limited to claims of the State relies enhance sentence is not Boskind, 188, upon right 174 a violation of the counsel.” Vt. at 807 based at 362. in is case 25. This the first since that statement Boskind involving challenges predicate prevent convictions their by blaming effect. the victim responds enhancement The mootness rule to be sure that adopting onerous DUI useless-remedy defendants have no out of the box. As I way dissent, discuss at the end of this this case demonstrates exactly I the result Johnson and Boskind. predicted Justice undisputed 26. It finished his is enhanced criminal sentence before the court resolved his superior Nonetheless, petition. because had filed his served, before the enhanced sentence was the court retained jurisdiction petition. over the Petitioner wanted to move forward on the petition negative because of the obvious collateral conse- quences stemming allegedly predicate unlawful convic- tion, including continuing potential the conviction to enhance penalties any subsequent proceedings criminal and the continuing suspension of petitioner’s driver’s license. Instead of recognizing consequences, these obvious collateral the superior moot, court the petition thereby declared making Boskind remedy even more ineffective than it was. The majority upholds this position.
¶ 27. Even this case implicate did effectiveness of the Boskind, remedy specified I disagree with the mootness ruling. “The central of all question problems mootness is ‘whether decision of a once living dispute justified continues to be by a sufficient prospect impact decision will have an on the ” Dist., parties.’ Cycle, All Inc. v. Chittenden Solid Waste 164 Vt. 428, 800, al., 670 A.2d (quoting Wright, 13A C. et (1984)). Federal Practice & way Procedure One a decision still if it impact negative have an has collateral J.S., for one v. parties. (2002) (mem.). “a Generally, criminal is moot only if it is shown that there is no possibility that legal consequences imposed will be on the basis of the challenged (1968). York, conviction.” v. Sibron New 392 U.S. This true even if the the challenged criminal sentence for has been served. Id. at 54-58 (holding defendant sub stantial judgment completion stake survived him); Mimms, imposed upon Pennsylvania see (1977) (citing prior U.S. 108 n.3 States Supreme United Court possibility cases “that of a criminal holding defendant’s *12 224 from a sentence legal consequences’ ‘collateral
suffering here have claims reviewed on him to his permits served (acknowl- Kemna, (1998) 1, 8, 14 Spencer v. merits”); U.S. cf. 523 has criminal conviction continu- wrongful that edging presumption served, but even after has been ing consequences collateral consequences prior presume to adverse collateral declining revocation).4 parole Thus, convicted of a state in a where a defendant eleven-year-old federal convic- seeking to overturn an
crime was Court held Supreme States guilty plea, tion United based as follows: served, results of the
Although
term has been
may
may
carry
convictions
persist. Subsequent
rights may be affected. As the
penalties, civil
heavier
think,
exists,
an invalid sentence
we
power
remedy
to
attempt
to
opportunity
to an
respondent
entitled
this
invalid.
that
conviction was
show
(1954) (footnote
502, 512-13
Morgan,
United
v.
States
346 U.S.
Sibron,
omitted);
at 55
“the
(acknowledging
see also
392 U.S.
life
most criminal convictions do
fact entail
obvious fact of
that
can be no doubt
legal consequences”).
adverse collateral
There
4
exception
“[a]n
This
has stated that
to the mootness doctrine exists when
Court
being
negative
consequences
likely
are
to result
from the action
collateral
added),
reviewed,” J.S.,
(emphasis
¶ 29. majority attempts exception The to avoid this well-settled by making extraordinary to mootness statement because validity of his DUI conviction challenging prior “in the context to the enhanced sentence he of’ prior received the later DUI conviction would proceeding, if prevail intact he were to in his PCR petition. remain even reasoning, proceed were allowed with Under invalidity his PCR demonstrate the conviction, still to all subject he would of the adverse collateral including presumably of that another *13 enhanced should he convicted of in sentence be DUI the future. challenge This would him to once an require again underlying invalid, conviction him thereby placing shown be on the majority treadmill that has created for Not surprisingly, the him. view, in the cites no law of this which support makes no sense.
¶ 30. petitioner The bottom line is that a cannot overturn an without demonstrating enhanced sentence the unlawfulness of the conviction; therefore, underlying striking underlying conviction a necessary predicate overturning is the enhanced sentence. Nothing our statute suggests PCR otherwise. Section 7131 of statute, 13 is patterned Title after the federal PCR 28 U.S.C. provides § 2255 and “a ‘special statutory remedy in the nature of ” Stewart, 351, corpus.’ 355, 1106, habeas In re 140 Vt. 438 A.2d Clark, 557, (quoting 555, 178, 1107 In re 255 A.2d (1969)). 180 permits upon “The statute a collateral attack Vermont convictions sentences which are defective under the Constitu- ” tion, law, or statutory subject ‘otherwise to collateral attack.’ Id. 7131). Here, 13 (quoting although V.S.A. goal ultimate of the sentence, petition overturn PCR is to the enhanced the only route so, Boskind, doing forth in successfully as set is to attack the prior conviction that led to the enhanced sentence. When a unfairly guilty sentence is the result of an plea, induced remedy in a is to proceeding plea. PCR vacate the In re Dussault, (1969). 776, 128 Vt. 259 776-77 PCR proceedings designed challenge validity of past judg- ments, Padilla, (Colo. 1996) (en 601, People banc), v. 907 P.2d 608 invalid, obviously, judgments those are deemed do they not Prince, as judgments. remain valid Cf. v. 781 S.W.2d 226 (Tenn. 1989) attacking route for that authorized (stating
851 to enhance later of conviction used facially judgment valid final conviction; seeking prior invalidate PCR sentence is successful, may he then seek invalidation if defendant sentence). enhanced Boskind, a quoted In we not alter that fact. 31. Boskind does “ ‘in proposition court for the that
federal appeals ” in a proceed- current sentence an attack on his context convic- constitutionality expired may challenge “‘the ing ” Vaughn, at 366 v. (quoting Young at 807 A.2d tion.’ Vt. (3d 1996)). The Third use of F.3d Cir. Circuit’s of’ to mean that “in context was not intended plainly term underlying conviction successful attack the lawfulness Indeed, Vaughn intact. the court would leave conviction that it Supreme Court decision agreed prior with a United States practical made matter whether little difference as or the underlying conviction challenging indicated that he case, expired later enhanced sentence. In either conviction “[t]he having then attacked enhanced or resulted improperly present Vaughn, (holding in the sentence.” 83 F.3d at attack context of petitioner “may [predicate] he cf. serving”); presently Boskind, J., (Dooley, dissenting) at (observing allowing challenge directly pro- in enhancement ceeding only deny use of enhance- ment, entirely PCR challenge but successful “[a] [would] Vaughn overturn The court in indicated judgment”). (3d Cir. following Pennsylvania, Clark 892 F.2d *14 1989), “reviewability [expired] the court held that the of wherein . . of their convictions nonetheless remains before us . because consequences collateral enhancement on sentence.” [later] Thus, contrary, notwithstanding majority’s argument of directly question the Third Circuit cases do not address the used a predicate what becomes of an invalid to enhance later sentence.
¶ 32. if we were to assume that an invalidated conviction Even a in the context of a later enhanced sentence conviction, technically a remained valid there obvious of preclude finding in this that still would a petitioner’s PCR action moot thing, declaring mootness. For one inval- demonstrating of of deprived petitioner opportunity conviction, idity prior thereby exposing him further in event charged enhanced sentences he is later with another reason, DUI. find For that other courts have refused to such See, petitions e.g., moot in City be similar circumstances. (Kan. Lester, 1991) App. (petitioner’s Ottawa v. 822 P.2d Ct. PCR in seeking guilty plea action withdrawal of DUI case action, was not petitioner moot because should his PCR prevail potential it could impact penalties any subsequent prosecution); (Md. Admin., 2003) Toler v. Vehicle Motor (even restored, suspended had though petitioner’s license been action review of license was not seeking suspension moot because if his were suspended subsequently, license to be he would face short, increased In penalties). because petitioner challenging the validity of his underlying DUI and because the validity continued of that conviction created the potential for penalties against increased future petitioner, his PCR not moot.
¶ 33. putting But even possibility aside future enhanced sentences, there is another obvious consequence adverse collateral — preventing finding of mootness the continued suspension of Following driver’s license. petitioner’s second DUI conviction in he a mandatory suspension faced license months, eighteen 1208(a), § 23 V.S.A. and was required com- plete or progress show substantial completing therapy 1209a(a)(2). § program, contrast, id. In suspension license applicable only days, 1206(a), § first offense is ninety id. the therapy requirement may only imposed a counselor 1209a(a)(l). Thus, deems necessary, id. if his 2005 conviction offense, had been a first likely most would have had his Instead, ninety license reinstated after days. petitioner’s license suspension apparently still in when force court superior rendered its decision. The record does indicate whether completed therapy requirement. Nothing record, updated however, shows that petitioner’s license has been Therefore, reinstated.5 the classification of the 2005 DUI convic- tion as a second is still having significant impact petitioner.
¶ 34. citation authority, Without relevant the expanded suspension concludes that and ongoing petition- This comes information from the docket entries maintained the Chittenden District Court November *15 consequence preclude is an insufficient collateral er’s license suspension as moot because being dismissed petition if in the prevailed even PCR not be reduced would way, holding is another Put proceeding. if the first a sound conviction even conviction is still second According to purposes. for enhancement cannot be used conviction underlying majority, proposition follows because prevailed if disturbed even conviction would and, event, suspension merely a license petition, not a sentence. penalty a civil above, scrutiny. As stated 35. Neither reason withstands successfully invalid attacked based on an conviction reducing at a later enhanced through a PCR aimed State, v. valid. Cf. does not nonetheless remain Vernlund sentence (Minn. 1999) (holding that where App. Ct. 589 N.W.2d DUI conviction based successfully challenged enhanced defendant predicate factual was established for on his claim that no basis “cannot be that conviction “must be vacated” and DUI enhancement”). support Nor can an invalidated conviction used stemming from that conviction. Cf. ongoing suspension an license (con (Alaska 1998) State, 951 P.2d McGhee three-year that enhanced revocation license would not cluding shortly vacated predicate be reduced where DUI conviction was offense, predicate for same but before defendant was reconvicted revocation have to have reduced indicating license would been dismissed). predicate conviction been absolutely no or legal compelling 36. There is basis rationale challenge majority’s successfully for the one could an position through petition claiming that a enhanced sentence a PCR invalid, yet any consequences and all predicate the invalid for the immediate enhanced except — — an enhanced license including suspension Certainly, in effect. successful collateral remain sentence, it negate can the enhanced can predicate offense is often the negate suspension, also enhanced license which id. imposed proceedings. severe in DUI See consequence most (indicating manifestly unjust not to reduce that would be that led predicate license revocation dismissal of offense upon revocation). enhanced license
¶37. in the United States Court cases Supreme As indicated nature, above, such cited adverse collateral a civil license, possible be sufficient to deportation loss of of a as moot. case law prevent dismissal Relevant unequivocally suspension demonstrates ongoing precluding driver’s license is adverse collateral consequence *16 Oliver, of the mootness doctrine. See Marston R.M. application 1971) (E.D. 691, that Supp. 324 F. 692 case is not (stating Va. detained, although petitioner longer being moot because is no “his given very disability conviction has rise to the real civil of ten of years’ permit”), withdrawal reversed on other driving (4th 1973); 485 705 grounds, F.2d Cir. Elzie v. Comm’r Pub. of (Minn. 1980) 298 32 n.7 that Safety, (stating appellant’s N.W.2d was not moot because “he not received back his ha[d] license”). Indeed, cancelled universally agree courts that the continued loss of license consequence precluding a is a collateral mootness; finding of is only question generally that arises whether, terminated, suspension even after the license there are other adverse collateral consequences precluding finding of See, Toler, mootness. e.g., (stating 817 A.2d that case is moot, not restoration despite driving privileges, of where licensee potential penalties upon any faced increased suspension future license); Elzie, 298 (stating N.W.2d at 32 that case is not moot case, notwithstanding suspensions). termination of license In this ongoing suspension precluded license a finding court; therefore, of mootness the trial we should not affirm the court’s judgment ground. on
¶ 38. Yet
consequence
another collateral
petitioner
is that
fine of
required
pay
part
as a
of his
$400
conviction,
2005 criminal conviction.6 Since
did not appeal
he
owed the
immediately
he
fine
sentencing
after
and faced impris-
if
pay
Thus,
§
onment
he did not
it. See 13 V.S.A. 7222.
this is not
voluntary
a case where
payment of the fine
a challenge
moots
imposition
its
or to the
amount
fine imposed. See State v.
Cahill,
(1969);
see also
¶22, 20,
Viglione,
Commonwealth v.
PA Super
punishments conviction is Thus, for a second DUI maximum fine § 1210. (c). 1210(b), We would first conviction. Id. than that for a higher imposed for a second DUI that the fine expect typical For for a first DUI conviction. higher imposed than that would be validity of the reason, challenged petitioner successfully effect, enhancing he would be its preclude so as Nakell v. his 2005 fine. See to a reconsideration of entitled (4th 1994) General, (stating that 15 F.3d Cir. Attorney consequence fine refusal to refund is adverse collateral possible mootness). preventing attempts consequence The avert this collateral majority raise it the trial court. failed to before
by holding here, however, lack-of-preservation unavailing This rationale the trial court argue did not mootness and because dismissing summary judgment case on sponte acted sua short, opportunity In no based on mootness. faults him raising. raise issue *17 Moreover, fine the does not indicate whether the was record $400 and, was voluntary part bargain, of a because mootness not time, at there no reason to petitioner at issue the was matter not moot. demonstrate that the was ¶41. reasons, For I do not believe either this the above superior moot court ruled it or that is case was when the was in majority responds part now. The that mootness of moot sought making expedite own because he never the fact, In as the consequence. to avoid timely filing acted in a in the acknowledges, petitioner fashion PCR, counsel to seek relief appointed expedited but failed have no assurance such action would have occurred. He speedy we impor- of More not be the inaction others. penalized should through time in controversy the must remain live its entire tantly, Bd., the courts. See LaFrance v. Envtl. (1998) (mem.) (stating requires that mootness doctrine review”). Thus, if there controversy stages
actual “at all had action, PCR, in the speedier prevailed had been victory judgment could to this nullify by appealing run so the clock would out before final result. Court second, 42. This latter hurdle returns me but most was that point promise of this dissent. The Boskind important we, others, a remedy remedy proved not would craft if the PCR courts, inadequate. If the answer is that and then this superior Court, alive, drop everything keep must else to PCR cases then so, say we ruling have to loud and clear so that will No happen. on the courts depends public trial and overworked defenders fact, prioritize such will In produce matters result. public defender and court have act superior had to imme- no diately, delay, give petitioner with a chance a realistic remedy deny petitioner remedy this case. To because he did not produce emergency blaming action is the victim. Then to take no action ensure this result does recur is violating Boskind commitment.
¶ 43. majority’s The answer to the Boskind commitment is that other to challenge predicate had avenues and that one case does not demonstrate corrective action is necessary. response Any The former the point. beside other remedy long available since when the expired predicate This, course, used for enhancement. was exactly Boskind, present the situation where we made the commitment we are If we dishonoring. thought now that long-expired remedies action, eliminated the need for corrective we never would have made the commitment in the first instance.
¶ 44. I an equally strong have majority’s reaction second response. This is appeal the first attempt an to use PCR to Boskind, eliminate a predicate conviction since and it never went beyond pleading There hint stage. is no of unusual delay the record. Nor is any there indication the record of a discharge ante, “fortuitous from an probation,” indeterminate as majority suggests; rather petitioner discharged probation satisfactory sentence, upon completion of his other petitioner would study be. We do not need a predicate incidence of conviction challenges to see from this record that there is a problem promise and that Boskind remedy effective is an illusion. If we do not take action on this record, we *18 never action. will take
¶ 45. The most action problem effective to the clear is to it overrule Boskind because is based fiction that PCR proceeding is a to a meaningful alternative predicate an enhanced sentence proceeding. That fiction dangerous is a one that recognizes right without a remedy. Although overruling would not apply Boskind this to future defendants and demon- give it would relief
petitioner, fulfill our promises. strate that we ¶46. all to a “for right remedy provides Our Constitution Const, person.” injuries wrongs which one receive Article I, rarely have found a violation this ch. art. 4. We — judicial recourse protects is so basic because what Gallipo City any right. See rather than substantive process ¶¶ Rutland, 50-51, A.2d This is 1177. 2005 VT unusual, in which highly regrettable, remedy. viable For right deprived has a but is substantive above, I the trial court’s decision the reasons stated would reverse forward, fix go but I would and allow controversy into in the first system get that allowed us to instance. joins I in this am authorized to state Justice Johnson opinion.
dissenting
2009 VT of Vermont v. Na-Im Robinson [969 127] No. 07-321 Reiber, CJ., Dooley, Johnson, Skoglund Burgess, Present: JJ.
Opinion January 16, Filed