State v. LaFountain
628 A.2d 1243
Vt.
1993
Check Treatment
Allen, C.J.

Defendant Lafountain brings this interlocutory appeal from an order denying his motion to dismiss a misdemeanor charge of driving with a suspended license (DLS) in violation of 23 V.S.A. § 674(b). Defendant’s primary argument is that the State’s use of his two prior uncounseled civil violations to enhance the penalty for a third charge violates his constitutional rights to counsel аnd due process. Defendant also challenges the sufficiency of the information, the nature of proof required by § 674, and the nonbifurcatéd trial below. We affirm.

Prior to the charge at issue, defendant was twice found to have committed DLS violations under 23 V.S.A. § 676. On June *315 3,1992, defendant was charged with violating § 676 for the third time, which constitutes a criminal misdemeanor offense under 23 V.S.A. § 674.

The only sanction for a first or second § 676 DLS violation is a civil penalty, carrying a maximum fine of $175.00. 23 V.S.A. § 2302(c). For further violations, however, 23 V.S.A. § 674(b) provides that “[a] person whо violates section 676 of this title for the third or subsequent time shall be subject to the penalties set forth in subsection (a) of this section.” The penalty for violation of § 674 is imprisonmеnt for not more than two years, with a mandatory minimum of two consecutive days to serve that may not be suspended or deferred, or a fine of not more than $5,000.00, or both. 23 V.S.A. § 674(a).

Defendant’s primary contention is that § 674(b) violates his rights to counsel and due process. Even though he was not entitled to counsel in his civil proceedings, see State v. O’Brien, 158 Vt. 275, 277, 609 A.2d 981, 982 (1992) (license suspеnsion proceeding under 23 V.S.A. § 1205 is not criminal, and therefore does not mandate a jury trial, appointed counsel, protection against self-incrimination, proof beyond a reasonable doubt or confrontation as protected by the Sixth Amendment); Shaw v. Vermont District Court, 152 Vt. 1, 6-7, 563 A.2d 636, 639-40 (1989) (because summary suspension hearing is civil proceeding, not criminal, right under Vermont Constitution to trial by jury does not apply), defendant claims ‍​​‌​​‌‌​‌​​‌​‌‌​​​​​​​​‌​‌​‌​​‌‌‌​‌‌​​​‌‌​‌​‌​‌‌‍that the prior uncounseled violations cannot be used to enhance his penalty for the current violation. Hе argues that the trial court erroneously based its decision on Lewis v. United States, 445 U.S. 55 (1980). In Lewis, the United States Supreme Court held that a defendant’s prior uncounseled felony conviction may support a subsequent conviction under a federal firearms statute, regardless of whether the prior conviction was valid. Id. at 56. Lewis is distinguishable from the case at bar because thе Court in Lewis concluded that the statute did not function to enhance the penalty based on prior convictions, but rather prohibited felons from possessing firearms. Thus, in Lewis the priоr convictions were used to identify a class of potentially dangerous persons, not to enhance the penalty for a subsequent offense. In the case at bar, however, § 674 mandates penalty enhancement. Prior violations under § 676 are used to enhance the penalty for subsequent *316 prosecutions of the same type of conduct. Accordingly, we agree that Lewis does not control the outcome of this case.

This Court is not bound by the legal reasoning of the trial court. See Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990) (trial court’s order affirmed on ‍​​‌​​‌‌​‌​​‌​‌‌​​​​​​​​‌​‌​‌​​‌‌‌​‌‌​​​‌‌​‌​‌​‌‌‍different legal grounds). We hold that Baldasar v. Illinois, 446 U.S. 222 (1980), rather than Lewis, supports the trial court’s order.

In Baldasar, the petitioner, who' had a prior uncounseled misdemeanor theft conviction, was convicted, for the second time, of theft of property. Under the applicable state law, the second misdemeanor was treated as a felony. The Court, although divided, concluded that the prior uncounseled misdemeanor conviction, which was punishable by more than six months of prison, could not be used under a penalty enhancement statute to convert a subsequent misdemeanor into a felony. Id. at 223-24.

Accompanying the per curiam opinion in Baldasar are two concurrences and one dissent. In two separate opinions, four justices were of the opinion that prior uncounseled convictions could never be used to enhance the grading and sentencing of a second offense. Id. at 224 (Stewart, J., concurring) (joined by Justices Brennan and Stevens); id. at 225-26 (Marshall, J., concurring) (joined by Justices Brennan and Stevens). Another four justices were of the opinion that a prior uncounseled conviction for which no sentence of imprisonment was imposed may always be usеd to enhance the grading and sentencing of a subsequent conviction. Id. at 233 (Powell, J., dissenting) (joined by Chief Justice Burger, Justices White and Rehnquist). Finally, one justice wrote that an uncounseled conviction may not be used to enhance the grading and sentencing of a subsequent offense if the first offense was one which was punishable by more than six months imprisonmеnt or for which the defendant was actually sentenced to a term of imprisonment. Id. at 229 (Blackmun, J., concurring). Justice Blackmun’s opinion gives us the narrowest rule. Thus, under the narrowest interpretation of the Baldasar plurality, see Marks v. United States, 430 U.S. 188, 193 (1977) (mandating that plurality opinions be interpreted on the “narrowest grounds” ‍​​‌​​‌‌​‌​​‌​‌‌​​​​​​​​‌​‌​‌​​‌‌‌​‌‌​​​‌‌​‌​‌​‌‌‍possible), defendant’s prior uncounseled § 676 civil DLS violations may be *317 used tо enhance grading and sentencing for his most recent offense under § 674. Other jurisdictions have derived the same rule from Baldasar. See Bilbrey v. State, 531 So. 2d 27, 32 (Ala. Crim. App. 1987); State v. Orr, 375 N.W.2d 171, 176 (N.D. 1985); State v. Chance, 405 S.E.2d 375, 376 (S.C. 1991).

Since Baldasar, the Court has further explained its position on recidivism statutes. In Parke v. Raley, — U.S. —, —, 113 S. Ct. 517, 521 (1992), the Court stated that “[statutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times.” Parke involved a constitutional challenge to a burden-shifting provision of a Kentucky penalty enhancement statute. Although states do not have unlimited scope in defining enhancement penaltiеs within recidivism statutes, the Court has repeatedly upheld recidivism statutes “against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruеl and unusual punishment, due process, equal protection, and privileges and immunities.” Id. at —, 113 S. Ct. at 522. The Court noted with approval Justice Harlan’s statement that “‘[t]olerance for а spectrum of state procedures dealing with [recidivism] is especially appropriate’ given the high rate of recidivism and the diversity of approaches that the States have developed for addressing it.” Id. at —, 113 S. Ct. at 552 (quoting Spencer v. Texas, 385 U.S. 554, 566 (1967)). The Court concluded that the Kentucky recidivist ‍​​‌​​‌‌​‌​​‌​‌‌​​​​​​​​‌​‌​‌​​‌‌‌​‌‌​​​‌‌​‌​‌​‌‌‍statute “easily” satisfied constitutional muster. Id.

Although the United States Supreme Court wаs addressing the narrow question of whether a specific criminal procedure in an enhancement statute was constitutional, the principles stated in Parke are applicable to the present case. Parke endorses tоlerance of the state legislature’s attempts to address the problem of recidivism. Vermont has recently attempted to handle repeat DLS offenders by creating a recidivism statute, placing three-time offenders in a separate category from first- and second-time offenders. Three-time offenders are subject to criminal sanctions that are predicated on the previous civil violations. Defendant’s due process challenge cannot stand in the face of the Parke decision.

Defendant also contends that the information fails to charge any crime because defendant’s repeat-offender status *318 was not fully pled and should be dismissed on that basis. We rеject this argument. The information cited the statute defend- ' ant was accused of violating, the dates of his two previous civil DLS violations, and the penalty for the presеnt offense. This was sufficient to apprise defendant that the § 674 charge stemmed from his prior § 676 violations. See State v. Brown, 153 Vt. 263, 271-73, 571 A.2d 643, 648-49 (1989) (Court favored common sense approach to constitutional sufficiency of an information).

Next, defendant challenges the nature of the proof required by § 674. He contends that the statute requires that the State provе the prior civil violations at the § 674 criminal trial. The text provides that “[a] person who violates section 676 of this title for the third .. . time shall be subject to the penalties set forth in subsection (a) of this section.” 23 Y.S.A. § 674(b). Defendant argues that by using the term “violates”' in § 674(b) instead of “has been convicted,” the Legislature intended that the State prove each оf defendant’s two previous civil violations rather than merely rely on the existence of previous violations. We disagree. The text does not require that the State prove each previous civil violation. If the Legislature had wanted the State to prove the prior violations in the criminal prosecution, it could have eаsily so specified.

Finally, defendant incorrectly insists that State v. Cameron, 126 Vt. 244, 227 A.2d 276 (1967), mandates a bifurcated trial here. Cameron was limited to requiring a bifurcated trial where the record itself ‍​​‌​​‌‌​‌​​‌​‌‌​​​​​​​​‌​‌​‌​​‌‌‌​‌‌​​​‌‌​‌​‌​‌‌‍was questioned, not the merits of the previous convictions. Id. at 249, 227 A.2d at 279. Cameron is inapplicable in the prеsent case because defendant wishes to challenge the merits of the prior convictions, not merely the record. We conclude that the proof of prior violations is sufficient in a § 674(b) prosecution.

Affirmed.