Thursday, April 21, 2016

The Wrong Order

State v. Rosenfield, 2016 VT 27

By Elizabeth Kruska

This is a case that appears to boil down to someone doing something in the wrong order and what the right response ought to be.

Michael Rosenfield was convicted of a DUI 1 when he was 18, a DUI 2 when he was 21, and a DUI 3 when he was 27. A DUI 3 is a felony, which carries with it various collateral consequences, including a federal prohibition on owning or possessing firearms, having to submit to the state’s DNA bank, difficulty in getting jobs, and other various issues.

After his DUI 3 conviction, he filed a motion in the criminal court seeking to seal his DUI 1 and DUI 2 convictions. There is a law within the juvenile statutes that provides a procedure for sealing convictions if the conduct occurred before a person turned 21. The thought is that sometimes people who are legally adults, but still pretty young, do dumb things that land them in the criminal justice system. Since it’s hard to go forward in life with a criminal record, this procedure allows sealing of some records so that young people going forward have a clean slate. Good idea.

There is also a sealing and expunging statute in the criminal code, but it operates a little differently, and really wouldn’t apply here due to the requirements of that law.

Anyway, Mr. Rosenfield filed to seal the DUI 1 and DUI 2, saying that they occurred before he was 21 (more on this below). The criminal court said, “Alrighty then” and sealed DUIs numbered one through two.

Then Mr. Rosenfield filed a “Motion to Correct The Record” on the DUI 3, saying that now since the DUI 1 and 2 were gone, that the record could no longer reflect a DUI 3. He wanted the 3 to become a 1, which would be a fine idea, since DUI 1 isn’t a felony.

The problem, from the SCOV's point of view, is that it doesn’t work that way. First, they take issue with the name of the pleading Mr. Rosenfield filed. What he sought to do was more than to correct the record. Someone can always ask to correct the record within the rules if the sentence got typed in wrong or somehow didn’t reflect what the sentence actually was. Suppose the sentence was supposed to be 6-12 months, but it was accidentally typed in as 6-12 years. Everyone agrees that wasn’t what the sentence was—this is the kind of thing that can be corrected this way.

There is also a rule that allows the amendment of sentences. SCOV says this doesn’t apply, either, because it deals with the amendment of the actual sentence, and not an amendment of the conviction. At the time he was sentenced on the DUI 3, the first two actually did exist, so the conviction for DUI 3 was appropriate.

Turning to the juvenile statute that allows for sealing of convictions for conduct that occurred prior to the defendant’s 21st birthday, Mr. Rosenfield argued that it should be read broadly to allow amendment of subsequent convictions. SCOV says that the statute does not include a provision to amend subsequent convictions, and they choose not to read it so broadly as to create a power to do that. Mr. Rosenfield tries a similar argument with the criminal-sealing statute, and SCOV similarly says no.

SCOV finds no applicable statute or case law to support Mr. Rosenfield’s position, and affirms the lower court’s denial of his motion to correct the record to change his conviction.

Justice Eaton picked up on something else, and wrote a concurring opinion. He pointed out that the second DUI should not have been sealed. The statute says that it applies to conduct that occurred prior to the defendant’s 21st birthday. He looked at the information, and saw that, in fact, the DUI 2 conduct occurred while Mr. Rosenfield was 21—almost 22. The trial court apparently sealed the prior convictions based on representations by Mr. Rosenfield in his pleading. Justice Eaton finds this unfair; another, similarly-situated defendant who accurately states the law in his or her pleadings would not have the second DUI sealed. There is a suggestion here to remand this piece sua sponte to the trial court to review the sealing, since it appears to have been done in error.

Justice Dooley dissents. He discusses the concept of coram nobis, which is a common law remedy for correcting or fixing errors. It still exists in Vermont law, and in his view, could be used here. Now that Mr. Rosenfield’s prior convictions have been sealed, there is fundamentally an error in the third conviction. It can’t be a third anymore because the first ones don’t exist. This remedy is available to repair fundamental or constitutional errors; it’s not something that gets thrown around willy-nilly.

Justice Dooley also picked up on a thread from the majority opinion that mentioned Mr. Rosenfield filing for post-conviction relief. At this point, though, that wouldn’t work because his sentence is over. It would have been an unnecessary step in this particular process.


  1. As a mother, I am always worried about my children sharing the roads with drunk drivers. I do believe young people make mistakes, so I completely support sealing the first DUI. While Justice Eaton had a valid point about the second DUI having been erroneously sealed, I believe that what is done is done. It should not be held against anyone when the court makes an error.

  2. I feel that an error is an error, and I feel especially strongly about this when the error is made by a court of law. This is due in part because of the fact that we, as citizens, are held fully accountable when we commit an error that has to do with the legal system. These errors should be corrected and someone held accountable in every instance.

    Eliseo Weinstein @ JRs BailBond