State v. Porter , 164 Vt. 515 ( 1996 )

Gibson, J.

Defendant Donald L. Porter appeals the imposition of a felony sentence following his conviction for driving under the influence of intoxicating liquor (DUI), third offense. 23 V.S.A. § 1210(d). Defendant argues that the use of a prior, uncounseled DUI conviction to support a felony third-offense sentence violates his federal and state constitutional rights to counsel and is barred by our decision in State v. Lafountain, 160 Vt. 313, 316, 628 A.2d 1243, 1245 (1993). Because we decide today that the recent decision of the United States Supreme Court in Nichols v. United States, 511 U.S. 738, 746-49, 114 S. Ct. 1921, 1927-28 (1994), comports with the protections afforded under the Vermont Constitution, we affirm.

On September 15, 1993, the Addison County state’s attorney charged defendant with DUI. Because defendant had previously been convicted of DUI in 1983 and 1984, he faced a maximum penalty of five years in prison and a fine of not more than $2,500 if convicted of a third DUI offense. 23 V.S.A. §§ 1201(a)(2) & 1210(d). Defendant moved to dismiss the felony-enhancement portion of the DUI charge on the ground that his 1983 conviction had been uncounseled,¹ so that a felony sentence for a third offense would run afoul of this Court’s holding in Lafountain, 160 Vt. at 316, 628 A.2d at 1245-46. The district court denied the motion to dismiss. Defendant thereupon entered a conditional guilty plea to pursue the instant appeal. The district court sentenced defendant to a minimum of 120 days and a maximum of two years in prison, all suspended except 120 days.

In Lafountain, we adopted the standard, articulated by Justice Blackmun in his concurrence in Baldasar v. Illinois, 446 U.S. 222, 229 (1980) (Blackmun, J., concurring), that “an uncounseled conviction may not be used to enhance the grading and sentencing of a subsequent offense if the first offense was one which was punishable by more than six months imprisonment or for which the defendant was actually sentenced to a term of imprisonment.” 160 Vt. at 316, 628 A.2d at 1245. We recognized in Lafountain that Baldasar was a per curiam decision of a divided court in which no clear majority opinion had emerged. Id. Juridical rules therefore mandated that we interpret Baldasar “on the ‘narrowest grounds’ possible,” id. (quoting Marks v. United States, 430 U.S. 188, 193 (1977)), which we determined to be the standard articulated in Justice Blackmun’s concurrence. Id.

Lafountain involved a sentence enhancement for third-offense driving with license suspended, 23 V.S.A. § 674(b), in which the first offense is a civil violation carrying no prison sentence. See 23 V.S.A. § 2302(c). Consequently, we upheld the defendant’s sentence enhancement as not violative of the rule set forth in Baldasar. Lafountain, 160 Vt. at 317, 628 A.2d at 1246. In the instant case, by contrast, a first-offense DUI conviction is a criminal offense that, at the time of defendant’s 1983 conviction, carried a maximum sentence of one year in prison and a fine of $500.² 23 V.S.A. § 1210(a) (1978) (current version at 23 V.S.A. § 1210(b)). Because defendant’s uncounseled 1983 DUI conviction was punishable by more than six months imprisonment, defendant urges us to reverse his felony sentence as violative of the standard announced in Baldasar and adopted by this Court in Lafountain.

Last year, however, the United States Supreme Court overruled Baldasar. Nichols v. United States, 511 U.S. at 748, 114 S. Ct. at 1928. In Nichols, the Court reaffirmed its earlier holding in Scott v. Illinois, 440 U.S. 367, 373 (1979), that, “so long as no imprisonment was actually imposed, the Sixth Amendment right to counsel did not obtain.” 511 U.S. at 746, 114 S. Ct. at 1927; it also expressly endorsed the reasoning of the dissent in Baldasar by holding “that an uncounseled conviction valid under Scott may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment.” Id. at 746-47, 114 S. Ct. at 1927. The Court reasoned that sentence-enhancement statutes do not alter the penalty imposed for the earlier conviction, but rather ‘“penaliz[e] only the last offense committed by the defendant.’” Id. at 747, 114 S. Ct. at 1927 (quoting Baldasar, 446 U.S. at 232) (Powell, J., dissenting).

In the instant matter, defendant was sentenced to pay a $160 fine following his 1983 uncounseled DUI conviction. Because the 1983 conviction was thus valid under Scott, the use of that conviction to enhance the sentence for the instant offense does not violate defendant’s federal constitutional rights, as articulated in Nichols.

Defendant contends, however, that the Vermont Constitution, Chapter I, Article 10,³ provides greater protection than the analogous provisions of the United States Constitution, and that the reasoning of Nichols does not comport with defendant’s state constitutional rights.

We have long recognized that, “as final interpreter of the Vermont Constitution, this Court has final say on what process is due in any given situation.” State v. Brunelle, 148 Vt. 347, 350, 534 A.2d 198, 201 (1987). Nevertheless, “[defendant bears the burden of providing an explanation of how or why the Vermont Constitution provides greater protection than the federal constitution.” State v. Zumbo, 157 Vt. 589, 592, 601 A.2d 986, 988 (1991). Although we have on occasion found that the Vermont Constitution affords greater rights-than the federal constitution, see, e.g., Brunelle, 148 Vt. at 353, 534 A.2d at 202-03 (Chapter I, Article 10 bars use of unlawfully obtained evidence for impeachment purposes), we have consistently held that the right to representation by counsel found in Chapter I, Article 10 of the Vermont Constitution confers a right similar to the federal Sixth Amendment right. Id. at 352, 534 A.2d at 202; State v. Rushford, 127 Vt. 105, 108-09, 241 A.2d 306, 308-09 (1968); In re Moses, 122 Vt. 36, 41-42, 163 A.2d 868, 872 (1960), overruled on other grounds by In re Dobson, 125 Vt. 165, 168, 212 A.2d 620, 622 (1965).

Defendant argues that, because we grounded oür decision in Lafountain solely on the federal constitution and did not reach the defendant’s state constitutional claim, we need not give Baldasar the same interpretation under the state constitution as we did in Lafountain. Rather than relying on the Blackmun concurrence in Baldasar to define the limits of the Vermont Constitution, defendant urges us to adopt, for state constitutional purposes, the four-justice plurality in Baldasar. The Baldasar plurality found that the use of a prior, uncounseled conviction to enhance the defendant’s sentence for a subsequent conviction violated the defendant’s Sixth Amendment right by imposing a prison sentence for the prior, uncounseled conviction. See Baldasar, 446 U.S. at 224 (Stewart, J., concurring) (“petitioner. . . was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel”); id. at 227 (Marshall, J., concurring) (“Solely because of the previous conviction the second offense was transformed from a misdemeanor into a felony ----”).

In Lafountain, however, we quoted with approval the language of the United States Supreme Court’s decision in Parke v. Raley, 506 U.S. 20, 26 (1992), concerning recidivism statutes, and acknowledged the Vermont Legislature’s efforts to handle the increasing numbers of repeat offenders by means of recidivism statutes. 160 Vt. at 317, 628 A.2d at 1246. We later expressly recognized that 23 V.S.A. § 1210(d), which imposes a felony sentence for a third DUI conviction, is a recidivism statute. State v. Tatro, 161 Vt. 182, 186, 635 A.2d 1204, 1207 (1993). As the United States Supreme Court explained in Nichols:

Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the [Federal] Sentencing Guidelines, or recidivist statutes which are common place [sic] in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, “[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant.”

511 U.S. at 747, 114 S. Ct. at 1927 (quoting Baldasar, 446 U.S. at 232) (Powell, J., dissenting).

We believe the reasoning of Nichols is consistent with our analysis in Lafountain and Tatro, and we see no reason to reach a different conclusion under the Vermont Constitution. The Legislature has seen fit to address the problem of repeat drunk-driving by enacting a recidivism statute that imposes enhanced penalties for each subsequent offense. The increased penalty for a subsequent offense does not repunish a defendant for the first offense, but rather punishes with greater severity the last offense committed by the defendant.

Defendant argues, however, that Nichols is distinguishable from the present case on two grounds. First, the prior convictions in Nichols were introduced only at the sentencing phase, where “the state need prove such conduct only by a preponderance of the evidence,” 511 U.S. at 748, 114 S. Ct. at 1928; in contrast, defendant argues, this Court requires the State to allege the existence of one or more prior convictions as an essential element of a repeat-offender DUI charge, and to prove the allegation beyond a reasonable doubt. State v. Cameron, 126 Vt. 244, 249-50, 227 A.2d 276, 279-80 (1967). We believe defendant reads too much into this distinction. Although we require the State to allege prior convictions as an element of the repeat-offender charge, we nevertheless held in Cameron that “[t]he fact of a prior conviction or convictions does not become material until after the conviction of the accused on the substantive offense on trial is established, and then only for the purpose of enabling the trial judge to impose the proper sentence.” Id. at 249, 227 A.2d at 280 (citation omitted) (emphasis added). We later made clear that Cameron requires a bifurcated trial only where a defendant wishes to challenge the fact of a prior conviction in the record and not the merits of such a conviction. Lafountain, 160 Vt. at 318, 628 A.2d at 1246-47. We see little practical difference, therefore, between the uses of prior convictions in Cameron and in Nichols.⁴

Defendant further contends that Nichols is distinguishable because the sentence-enhancement in Nichols is “presumptive, not conclusive,” 511 U.S. at 752, 114 S. Ct. at 1930 (Souter, J., concurring), while sentence-enhancement for DUI purposes is “mandatory and unrebuttable.” We find defendant’s distinction unavailing. Defendant asserts that the jury is not at liberty to acquit a defendant on the ground that the prior convictions were legally invalid. The bifurcated procedure established in Cameron, however, is expressly intended to allow a jury to convict or acquit a defendant of the substantive offense without regard to any prior offenses for which the defendant was convicted. Cameron, 126 Vt. at 249-50, 227 A.2d at 279-80. When a defendant is convicted of DUI a third time, the Vermont statute, unlike the federal sentencing guidelines at issue in Nichols, does not mandate imposition of a minimum sentence, but instead grants the sentencing judge wide discretion to fashion an appropriate sentence. See 23 V.S.A. § 1210(d).⁵ Even if, as defendant suggests, Nichols authorizes sentence-enhancement only as a discretionary tool, we are not persuaded that Vermont’s DUI sentencing scheme falls short of the mark.

Finally, defendant argues that our decision in State v. DeRosa, 161 Vt. 78, 633 A.2d 277 (1993), supports his claim of broader protections under the Vermont Constitution. In DeRosa, we vacated a jail sentence imposed for a violation of probation, where the original probationary sentence was imposed following an uncounseled conviction. Id. at 83, 633 A.2d at 280. Defendant contends that our analysis in DeRosa “follows the same line of reasoning” as that applied by the plurality opinions in Baldasar. DeRosa, however, did not involve a recidivism statute, but instead rested on the statute governing revocation of probation, which requires the court to decide ‘“on the basis of the original offense and the intervening conduct of the probationer’” whether confinement is warranted. Id. at 82, 633 A.2d at 280 (quoting 28 V.S.A. § -303(b)). Unlike the statute at issue in DeRosa, a recidivism statute such as 23 V.S.A. § 1210(d) does not impose punishment on the basis of the prior offense, but rather punishes only the last offense committed by the defendant.

In sum, we adopt the reasoning of Nichols v. United States and hold that an uncounseled conviction that is constitutionally valid under Scott v. Illinois may be used for sentence-enhancement purposes under a recidivism statute that imposes a more severe penalty for subsequent convictions.

Affirmed.

1 Because he was represented by counsel for his 1984 conviction, defendant does not challenge the authority of the trial court to impose an enhanced sentence for a “second offense” under 23 V.S.A. § 1210(c).

2 The offense now carries a maximum penalty of two years in prison and a fine of $750. 23 V.S.A. § 1210(b).

3 “That in all prosecutions for criminal offenses, a person hath a right to be heard by oneself and by counsel;. . . nor can any person be justly deprived of liberty, except by the laws of the land . . . Vt. Const., ch. I, art. 10.

4 Defendant is correct that Cameron requires the State to satisfy a higher standard of proof with respect to prior convictions than does Nichols. But defendant does not explain, and we fail to see, how proof beyond a reasonable doubt, which we required in Cameron, 126 Vt. at 249, 227 A.2d at 279, affords less protection to defendant’s due process rights than does proof by a preponderance of the evidence, as permitted under Nichols.

5 The statute does require a mandatory forty-eight hours in jail for second-offense DUI. 23 V.S.A. § 1210(c). As noted supra, n.1, defendant does not challenge imposition of an enhanced sentence for second-offense DUI.