Writ Large Too

There's gotta be something in
here that'll work . . .

State v. Cady, 2018 VT 61

By Andrew Delaney

All you lawyers who know what a “writ of coram nobis” is without looking it up, raise your hands. If you did raise your hand, then chances are you paid more attention in law school than I did, or you studied Latin, or you occasionally look up legal words and phrases on Wikipedia.

That’s exactly what I just did. Turns out, it’s just a writ of error—a formal way to ask the trial court to correct a previous error. I guess we could call it a “writ of mulligan” or a “writ of do-over” if we wanted to have a little fun. Only fifteen states and DC recognize the writ—and Vermont is one of the fifteen states. New York also happens to be one of the states that recognizes it. This may not mean much to you, dear reader, but the writ is recognized in all three states that I hold licenses in. Awkward. And here I am making jokes about its rarity. Well, crud. I guess I learned something today. Thanks, Wikipedia!

My lack of esoteric legal knowledge aside, let’s move on to the case at hand.

Mr. Cady was convicted of DUI in 2006. He was convicted of DUI-2 after a 2012 guilty plea. During the 2012 plea colloquy, the trial court recited a few facts and asked Mr. Cady whether he agreed that the State had enough evidence to prove the case beyond a reasonable doubt. He agreed. He was convicted, completed probation, and did not appeal.

Then came 2017 and the DUI-3 charge. That’s when Mr. Cady filed a petition for coram nobis in the DUI-2 docket. He argued that the court failed to ensure that there was a factual basis for the plea pursuant to Rule 11. The trial court denied the petition, reasoning that although the writ was available—because defendant had no other remedy available to challenge the DUI-2 conviction—the plea colloquy was good enough to pass Rule-11 muster.

Mr. Cady appeals.

First, SCOV has to determine “whether coram nobis is available to defendant to challenge the adequacy of the plea colloquy preceding his DUI-2 conviction based on the fact that the conviction may be used to enhance his sentence in his pending DUI-3 case.” That’s a mouthful. Put another way: Is the threat of an enhanced sentence enough to invoke coram nobis? This is a matter of law and gets de novo review.

SCOV notes that Mr. Cady is not currently suffering a collateral consequence of an enhanced sentence, but faces the threat of an enhanced sentence due to his prior conviction. Because Mr. Cady can “raise the adequacy of a plea colloquy in a prior conviction through post-conviction relief (PCR) proceedings once sentenced, coram nobis relief is not available.”

SCOV notes, “Despite its ancient origins, this Court has recognized the continued existence of the writ of coram nobis in criminal proceedings.” (V.R.C.P. 60(b) got rid of coram nobis in 1971).

SCOV explains that the writ provides the trial court with an opportunity to correct its own record to prevent an injustice. It’s a writ of last resort and only works when one is all out of other options.

A similar attempt was made in 2012 to undercut a sentence-enhancing predicate DUI. That case, summarized here, illustrates both why we miss Dan Richardson’s eccentric and witty humor and why the writ of coram nobis is certainly an interesting but not necessarily versatile tool.

The big difference between the other case and this one is that Mr. Cady is not yet under sentence. So, he argues, he doesn’t have the PCR avenue to pursue.

“This matters not,” says SCOV. PCR relief may not be available yet, but it will be if Mr. Cady is convicted and begins to suffer collateral consequences. SCOV opines that PCR is the one and only way for a defendant currently suffering collateral consequences from a prior conviction to challenge the prior conviction—it can’t be done prophylactically.

So Mr. Cady has to take a DUI-3 conviction before he can challenge the DUI-2. He has to plead guilty to a felony, and actually be suffering from the collateral consequence before he can roll the dice on pushing it back to a misdemeanor. That’s just the way it is sometimes. 

Because SCOV concludes that the writ is unavailable, it affirms on alternative grounds and doesn't get to the sufficiency of the plea colloquy.