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State v. Boskind5/24/2002
e specter that such evidence could not be obtained from the defense in a criminal motion hearing. In fact, we held that the defendant could be required to give exactly such evidence in Brown, 165 Vt. at 88, 676 A.2d at 356. Moreover, the California courts routinely require such evidence in challenges to predicate convictions based on guilty pleas because the California rule is that the defendant must show that despite the lack of advisement from the court he or she did not actually know of the rights being waived. See Allen, 981 P.2d at 535. Thus, the defendant must routinely testify in California, and despite the need to take additional evidence, the California Supreme Court found no substantial burden from challenges to predicate convictions.
The majority's final reason is equally unavailing. The majority has simply transferred a burden from the district court to the superior court. Since trial judges are assigned to superior and district court as needed to meet demand, and are frequently assigned to both courts at once, I fail to see how a decision on which court will hear a predicate challenge is relevant. Indeed, the risk of the majority's approach is that defendants will bring early challenges to convictions that will never actually be used for enhancement purposes knowing that a later challenge will be ineffective. Thus, the risk is that the majority's ruling will increase the work of the trial courts, not decrease it.
While I find the majority's reasons for its policy choice weak, my fundamental disagreement with the majority lies in its failure to consider the main reason why not to require a separate PCR proceeding in DUI enhancement cases. Although a third conviction of DUI is a felony, a defendant is unlikely to spend much more than a year in jail for this offense alone. At the same time a PCR petition challenging a predicate conviction is unlikely to be resolved in less than a year in most superior courts in Vermont. Thus, PCR relief can come only after a defendant has served all, or most of, a sentence. It is not a practical remedy because it does not precede the imposition of the enhanced sentence.
The majority's secondary response is that if the above accurately states the facts we can "calibrate a practical remedy to a real - not theoretical - problem." Ante at 11. I hope our criminal rules committee will act on this statement to provide by rule the meaningful remedy the majority is unwilling to provide by this decision.
But I am more concerned by its primary response - that defendants are not entitled to "all avenues of appeal" before sentence is imposed. The question before us is whether we should consider the challenge to the predicate conviction an essential part of the criminal case in which enhancement is sought or a separate event to occur in a later separate proceeding, post-conviction relief. In neither case is it an appeal, and labeling it so does not advance our inquiry except to belittle the position that we should ensure that a sentence is correctly and constitutionally imposed in compliance with the law before demanding that a defendant serve that sentence. Because I hold that position, and believe that ensuring the accuracy of a conviction is more important than ensuring a speedy sentencing, I dissent. I am authorized to state that Justice Johnson joins this dissent.
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