Friday, December 16, 2011

Too Clever by Half


In re Morin, 2011 VT 132 (mem.).

It is possible to be too clever, especially when that cleverness involves procedural maneuvers.  In this case a criminal Defendant tried some clever maneuvering and ended up right back where he started.


Defendant was charged with four crimes in a very short period of time: domestic assault, DUI, operating a vehicle with a suspended license, and violating conditions of release.  Only the DUI and operating a vehicle with a suspended license arose from the same incident.  The result was that the four charges were contained in three separate cases, each with a separate docket number. 

Defendant negotiated a plea agreement with the state.  He agreed to plead guilty to DUI, operating a vehicle with a suspended license, and violating conditions of release, and in exchange the state would drop the domestic assault charge.  Defendant entered his guilty plea.  The domestic assault charge was dropped.  The Criminal Division of the Superior Court then sentences him to 18 months to 5 years in prison. 

I imagine that this penalty was a bit stiffer than what Defendant had anticipated.  Hardly had the ink dried on the sentencing order when Defendant petitioned the Civil Division for post-conviction relief.  Defendant alleged that the Criminal Division had taken his plea without eliciting a factual basis for the crimes.   The Civil Division agreed and asked the Defendant what it should do.  Not surprisingly, Defendant suggested that the convictions and the sentences be vacated.

At this point the State cried foul. It pointed out that the convictions were the result of a plea bargain, and by just vacating the convictions the State would be loosing the benefit of its bargain.  It suggested instead that the Defendant should be returned to the same position he was in before the plea deal was made, that is with all four charges pending and with bail and conditions of release set as they were. 

On this point, the Civil Division agreed with the State and ordered the case remanded back to the Criminal Division under those conditions.  Defendant then appealed to SCOV.

Defendant’s argument was that the statute which allows for post-conviction relief does not permit the Civil Division to do what it did.  Defendant didn’t think that the statute permitted the Civil Division to remand his case to the Criminal Division.  He also thought that the statute did not give the Civil Division power to reinstate charges that had been dismissed, particularly charges which had nothing to do with the convictions. 

SCOV has no difficulty resolving the first claim of error.  While the enabling statute did not contain the word “remand”, it did contain the word “vacate.” The power to vacate implies the power to remand. 

The second issue is a bit trickier.  Having no prior decisions on the issue in Vermont, the SCOV looks to other jurisdictions.  The case law from other states is not of a single mind.  Some cases suggest that the SCOV could reinstate charges in conjunction with post-conviction relief; others suggest that the SCOV could not, and that the State would have to file charges anew. 

So what does SCOV do?  It dodges the issue.  It concludes that any error that had occurred was harmless, because the State had indicated that it wanted the charges reinstated, and it still could re-file the charges under the alternative procedure suggested by Defendant and the case law.  It therefore concluded that Defendant was not prejudiced by any error that might have occurred.

I can imagine Defendant’s response to this.  “Not prejudiced?  But if the charges are not reinstated, then I do not have to pay bail, I do not have to follow conditions of release, and the State has to make the effort to actually file the charges.  I would certainly be much better off right now if the charges were not reinstated.  Who knows what the State would do, or how long it would take them to do it.  A finding of no prejudice requires SCOV to predict the future, and SCOV have no license to predict the future any more than the Civil Division has license to reinstate charges.”

Maybe so, but then again maybe Defendant would be being just a little too clever.

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