Wednesday, June 20, 2012

Writ Large

State v. Sinclair, 2012 VT 47.

In prison, your options are limited.  After daily meals, you can attend chapel with Johnny Cash, walk the yard with Cutty and Wee-Bay, sit in your cell contemplating your crime with George Bluth, or you can file motions to attack your underlying conviction. 

There a number of legitimate reasons why a prisoner may seek to challenge, or obtain relief from their judgments.  There is the possibility that the defendant is innocent.  There is the possibility that the conviction or sentence is grossly unfair.  There is the possibility that the defendant was denied due process either through an error at trial or the ineffective assistance of counsel.  Then there is the possibility that the defendant has a lot of time on her hands and very little to lose by filing multiple challenges.  After all, they get a free stamp every day.  Why not send a note to the court.

For a growing number of inmates, though, the reason to challenge the conviction is due to the increasing problem of collateral consequences.

As society has grown tougher on crime, our punishments have increased and become more elaborate.  For example, everyone has heard that felons in certain states lose the right to own firearms or to vote in elections even after their sentence is complete.  In such cases, a criminal conviction becomes a life-time sentence even if the actual incarceration is relatively small.

Such issues, are only the tip of the iceberg.  Most Defendants do not realize at the time of trial that a conviction, even one resulting from a plea bargain, will follow them for the rest of their lives.  For some it means that they will suffer enhanced sentencing for subsequent minor crimes.  For some it will mean deportation to their country of birth—a land they may not have seen since infancy. 

All this means that inmates have good reason to be fight certain convictions and to challenge those convictions down the line when the collateral consequences start to take effect. 

Enter today’s Petitioner.  In 1993, he pled guilty to a charge of assault and robbery in return for a reduced sentence.  What Petitioner did not realize was that this conviction would make him eligible for enhanced sentencing for future crimes. 

And that is exactly what happened.  After serving his 1993 sentence, Petitioner committed another crime and is currently serving an enhanced sentence in federal prison.

Petitioner’s main beef in this filing is with the 1993 conviction.  He alleges that if he knew in 1993 about the collateral consequences, then he would never have agreed to the plea bargain.  He wants to set aside this conviction to neutralize the enhanced sentence and reduce his time in prison. 

On appeal, though, the SCOV never reaches the merits of Petitioner’s issue.  Instead, the SCOV focuses on the particular vehicle that Petitioner chose to make these arguments. 

Modern pleading and rules of procedure have largely eliminated the epics battles that barristers and lawyers in Dickens time fought over filings.  At that time, a party seeking some form of relief not only had to identify the form of relief but also lodge the proper writ with the correct court.  Cases from that era are littered with decisions where the party is dismissed without reaching the merits of the claim because of a defective pleading or an improper writ. 

This is not to say that present practice is free of such technical nuance, but compared to where we used to be, the difference is unmistakable. 

Yet for all of the changes and rules abolishing such arch pleadings, the old writs persist and some cases continue to provide an avenue for relief.  In this case, Petitioner couched his request for a remedy in the writ of coram nobis.  This writ originally existed in civil cases to allow parties to file post-judgment motions for relief from mistakes of fact or newly discovered evidence.  It was the way to undo a judgment after the verdict when error led to an improper result. 

This writ was largely replaced by Rule of Civil Procedure 60, which provides the same post-judgment relief for mistake, errors, newly discovered evidence, and similar bases. 

The writ of coram nobis, though, has had a second life in the criminal arena where some courts have allowed this writ to stand when a defendant wants to challenge a conviction after she has already completed her sentence. 

This is just what Petitioner argues.  He claims that he is entitled to such a writ, and the relief based on it, because he has already served and completed the sentence for his 1993 conviction.  Petitioner argues that he cannot challenge the judgment through either appeal or a habeas corpus (procedural challenge) because you lose the ability to do either once a conviction is completed. 

This presents an interesting issue for the SCOV, and much of the decision recounts the history of coram nobis, its evolving application, and its validity in Vermont.  The SCOV appears to be sympathetic to the use of this writ in cases where a petitioner wants to set aside a conviction after the sentence has been served.  In fact, the SCOV all but invites such filings as legitimate and reasonable. 

For Petitioner, though, the promise of the SCOV’s analysis does not carry over to him.  As an old writ, coram nobis is an action of last resort where no other relief is available.  In this case, Petitioner was and is eligible to file for Post-Conviction-Relief under the statute.  Therefore, he is not eligible for a writ of coram nobis, and the action is dismissed. 

This may seem like a highly technical result, but it is not. 

A PCR filing is a civil action filed in the county where the sentence was composed.  It is governed by specific statutory standards and a clear standard of proof (petitioners must demonstrate that there was a fundamental error at trial and that there would have been a different outcome but for that error).

A coram nobis action, on the other hand, is a proceeding criminal court and must be brought in the criminal division where petitioner was tried.  As a common law writ, its standard is not as clear, and it comes with several variations. 

Choosing between the two could have a substantial impact on Petitioner’s case.  But the statute dictates, and Petitioner’s writ is dismissed to (presumably) file again as a civil action.  

So Petitioner will have to start from scratch with his challenge and re-file in the civil division.  Whether he will have better luck is hard to say, PCRs are rarely granted, and the burden on petitioners is quite high. 

Petitioner will need to spend a fair amount of time preparing and researching his next move.  Fortunately, it looks like he has it.  

1 comment:

  1. Actually, a PCR petitioner doesn't have to demonstrate that "there would have been a different outcome" if he is claiming ineffective assistance of counsel. He has only to show that there is a reasonable probability of a different outcome, which is a lower standard than a preponderance of the evidence.

    Courts mess this up all the time; see today's reversal in In re Combs, 2012-27.