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State v. Boskind5/24/2002
ld "require . . . delay and protraction of the federal sentencing process." Id. at 497.
The majority relies on the above language from Custis noting that the needed transcript may come from any district court in Vermont or from another state. It also asserts that allowing challenges to predicate convictions in the criminal proceeding in which the State seeks the enhanced sentence would turn sentencing into a trial. It asserts that a PCR proceeding allows for notice and evidentiary development, including calling the defendant as a witness, and that these important procedures could not happen in the district court. Finally, it asserts that more complicated enhancement proceedings impose a substantial burden on the district court. None of these reasons are persuasive.
With respect to the availability of transcripts, Custis eliminated any problem to the State or the court caused by the unavailability of transcripts in its holding that defendant has the burden to show lack of substantial compliance with Rule 11, a holding in which I join. See also State v. Brown, 165 Vt. 79, 88, 676 A.2d 350, 356 (1996) (in challenging predicate DUI convictions on basis of denial of right to counsel, a defendant has the burden to show he was eligible for appointed counsel).
Even if defendant did not have the burden, I cannot accept the argument that we face difficulty in obtaining needed transcripts. Nowhere in our criminal and PCR appeal decisions is there any indication that lack of transcripts has made impossible review of guilty pleas, even pleas rendered some years ago.
Second, DUI enhancement is already part of the trial in Vermont. See State v. Cameron, 126 Vt. 244, 249-50, 227 A.2d 276, 280 (1967). Enhancement is determined by the jury in "the second phase of the bifurcated proceeding." State v. Baril, 155 Vt. 344, 346, 583 A.2d 621, 622 (1990). The majority's characterization of the claim in this case as "defendants should be allowed to challenge their predicate convictions at the sentencing phase of an enhancement charge" shows a fundamental misunderstanding of the enhancement procedure in this state. Even if the majority's discussion accurately described the enhancement process, however, it ignores that the constitutionality of a guilty plea is a question of law that must be raised pretrial in a motion to suppress or strike. See V.R.Cr.P. 12(b); see also People v. Allen, 981 P.2d at 532. Resolution of a challenge to a predicate conviction could not hold up sentencing. Further, adherence to the motion rules will allow exactly the notice and evidentiary development that the majority sees in PCR proceedings.
The Supreme Court of California thoroughly examined the burden of resolving guilty plea related challenges to predicate convictions in the enhanced sentence proceeding. See Allen, 981 P.2d at 537. Based on 15 years of allowing such challenges, it found that they entailed "little disruption." Id. Our limited experience in handling such challenges also shows no disruption. See, e.g., Tatro, 161 Vt. at 186, 635 A.2d at 1207.
I think the California conclusion is particularly reliable because the court did refuse to allow predicate conviction challenges in the enhancement proceeding if the challenge is based on ineffective assistance of counsel. See People v. Garcia, 928 P.2d at 579. There the court found that allowing such challenges would seriously disrupt the criminal trial in the enhancement proceeding. Thus, the court carefully calibrated the administrative difficulties raised by the type of challenge involved.
Although none of our cases indicate that additional evidence would be necessary in a Rule 11 proceeding, the majority raises th
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