By Elizabeth Kruska
You know you’re in for a treat when a SCOV opinion refers to an “ancient, constitutionally enshrined right” and also specifically quotes a case so a reference to Chief Justice Marshall can slide in.
D.C. got charged with simple assault in juvenile court when he was 14, almost 15. He admitted to the offense and was put on juvenile probation until he was 18. Not knowing any of the facts of this, I’m just going to say that 3 years of juvenile probation seems like an awfully long time. Anyway, one day before his 18th birthday—so, one day prior to his probation expiring, he filed a petition for post-conviction relief (PCR) alleging that his plea colloquy was inadequate.
Juvenile court handles a couple different things. On one hand, there’s the CHINS and TPR beat, which is where children are taken into custody by DCF for various reasons and the families work together to be reunited or not. That’s sort of a Pollyanna version of the CHINS docket, which often feels more like a soul-sucking meat grinder. But we’re not here to talk about CHINS cases, except to say that CHINS cases are civil in nature and subject to the rules of civil procedure (this is a hint about how this is going to come out in the end, by the by).
The other thing that happens in juvenile court is the delinquency docket. Kids don’t generally get charged with adult crimes, they get “charged” with delinquencies. Delinquency court is exactly the same as adult criminal court, except that it happens in juvenile court. The legislature did a mega-sized overhaul to the juvenile statutes back around 2009, and in doing so, effectively imported all the pieces of criminal procedure into delinquency procedure. Well, mostly.
D.C. had the right to an effective and appropriate plea colloquy where he was informed of his rights and the nature of the process, and whether he wished to give up his rights by admitting his guilt. D.C. contended in his PCR petition that the colloquy was defective, so his delinquency finding should have been vacated. We have no idea if the colloquy was defective or not, because the State, in its answer replies that D.C. didn’t even have the right to raise the issue. The State raises several different grounds. SCOV disagrees with the State, says the PCR statute applies to kids, and reverses and remands.
First, at the trial court level, the judge ruled that the remedies available to D.C. were to have moved to withdraw his plea, or to file a motion under Civil Rule 60(b) because those are the remedies available as spelled out in the juvenile statutes. Since D.C. filed his petition more than three years after the fact, which is more than the 30 days allowed for withdrawing a plea, the court reasoned this was out of time. The court also ruled that any motion filed under Civil Rule 60(b) would have been untimely. I’m still not totally clear why a civil rule of procedure would apply to a delinquency (hint: it doesn’t), but I’m not making the rules, I’m just talking about them.
The State argued that at this point D.C.’s petition was moot. His juvenile probation went until he was 18, and by the time this was heard he had passed his 18th birthday. No more probation, so there’s no more restraint on his liberty, so there’s really no case to be had. Besides, wouldn’t jurisdiction over him have ended by now? There probably still is or was but that question is better left answered by someone else.
Also, the State doesn’t raise the mootness argument until the appeal. This is one of very few instances where something can be argued on appeal in the first instance. Subject matter jurisdiction, for the win! Well, but not.
SCOV disagrees, and decides this case is not moot. SCOV very recently decided that a person can file a PCR petition while he or she is in custody under sentence, and the expiration of the sentence does not automatically render the issue moot. Sometimes the only remedy available to fix the problem is a new trial, and it doesn’t matter that the sentence had previously expired in order to have a new trial.
The State tries to argue that this recent ruling doesn’t apply here. The State argues that since the case happened in juvenile court, it is confidential, so it’s not as if D.C. is saddled with a record or future collateral consequences of having a delinquency in his history.
Incorrect. Yes, the proceeding is confidential, and yes, there is no criminal record generated, but by statute all sorts of people potentially can get this information. Law enforcement can see that kids have prior delinquencies. The Department of Corrections can see this information and can factor delinquency issues into supervision and can include them in pre-sentence investigations and risk assessments. Criminal courts can use delinquencies at sentencing hearings for adult crimes. Schools can find out about them. Someone with a delinquency might not be able to get a government security clearance, or may be denied housing, or may not be able to get in to college. So, collateral consequences really do exist.
SCOV looks at a case from Virginia where a juvenile was adjudicated of a sexual assault that required him to go onto a registry. He filed a PCR and as a response, the State (well, the Commonwealth, I guess) dismissed him from supervision. Then they argued: “This is moot! He’s not on supervision!” The big court in Virginia said, “nice try, but you don’t get to duck the issue by cutting this kid loose.” Release might moot a petition, but it does not if there are collateral consequences and a continuing injury. The child in this instance was dismissed from supervision but was still required to be on the registry, so he had a continuing injury. Therefore, his petition wasn’t moot. SCOV adopts this reasoning and says that since there really is potential for his delinquency adjudication to be used against him somehow in the future, his petition isn’t moot.
Moving on, SCOV discovers a problem with the big new juvenile procedures act: the legislature didn’t actually include a PCR provision. SCOV doesn’t have reason to think, though, that the legislature meant for kids not to have a chance at a PCR.
SCOV looks at the history of PCRs. Back in Merry Olde England, and into our young, scrappy, and hungry country’s history, procedure happened by writ. In the more modern age we don’t practice by writ. (Except for when we do, because sometimes there just isn’t another way to do it. See footnote 2 in this case) The Vermont legislature has abolished writs, generally. They specifically listed some writs to be eliminated, but clearly did not abolish the use of the Writ of Habeas Corpus. That’s capitalized, because it’s important. Habeas still exists in Vermont under the Vermont Constitution.
Vermont adopted the PCR statute and procedure as a way to streamline the habeas process. But that was not meant to eliminate habeas all together. Habeas is upheld as almost sacred because its job is to balance personal liberty against government oppression. The relief available has expanded over the years.
SCOV rules that even though by the very nature of delinquencies, a child cannot be a “prisoner” who is “in custody under sentence” and that there is no conviction, that the PCR statute applies. The statute is broad and is meant to be applied broadly. And even though kids with delinquencies are not in custody, their liberties can be curtailed, like here, how D.C, was on juvenile probation.
SCOV also thinks it seems sort of silly to force kids to file for habeas relief when there is a perfectly good PCR statute available. The PCR procedure is meant to streamline the process, not to limit habeas. D.C.’s issue—an inadequate plea colloquy—is a really common PCR complaint made by adult defendants, so it’s not as if this is a novel issue that wouldn’t normally be heard in this kind of proceeding.
Finally, even though a child “charged” with a delinquency isn’t charged with a crime, exactly, the entire delinquency procedure is pretty much the same as criminal procedure. Children in delinquency cases have all the same Sixth and Fourteenth Amendment rights as their grown-up counterparts. If kids have all the same rights as adults, they really ought to have the same remedies.
SCOV does not believe that the legislature meant to wipe out PCRs from juvenile court. And SCOV also does not believe that the legislature meant for a civil remedy—relief from judgment under civil rule 60(b) was ever, in any form, meant to replace the “ancient, constitutionally enshrined” right of habeas corpus.
And just because I like this so much, “Like other citizens of this state, juveniles have a constitutional right to petition for relief from unlawful restraint from the government . . . a right that does not evanesce simply to ‘the condition of being a boy.’”
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