On Appeal from Superior Court, Windham Unit, Civil Division September Term, 2012 Katherine A. Hayes, J.
The opinion of the court was delivered by: ¶ 1. Reiber, C.J.
In re Chandler (2012-073)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
Charles Chandler appeals the dismissal of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. The trial court dismissed the petition after the expiration of the twenty-nine-to-thirty-day custodial sentence imposed pursuant to the challenged conviction for impeding a public officer. We reverse and remand.
¶ 2. Following a confrontation with several fire fighters on his property, petitioner was charged in 2006 with impeding a public officer, a felony under 13 V.S.A. § 3001. A jury convicted petitioner after a three-day jury trial in November 2009. On March 30, 2010, the trial court sentenced petitioner to serve twenty-nine to thirty days in jail. Petitioner, representing himself, asked the trial court to stay his sentence pending an appeal. The court denied the stay. Petitioner hired a lawyer, who filed a written motion for a stay under Vermont Rule of Criminal Procedure 38(b). The trial court also denied this motion. Petitioner appealed the denial to this Court, and we heard arguments April 12, 2010. We reversed the denial, noting that the trial court should have taken into account the short period of incarceration in deciding whether to stay the sentence until petitioner's merits appeal could be resolved. We observed: "[W]ithout a stay, defendant will undoubtedly serve his full prison sentence of 29 to 30 days before his appeal is heard. Indeed, as of today, defendant has already served 14 days, which is nearly half of his full sentence." State v. Chandler, No. 10-135, 2010 WL 7799086, at *1 (Vt. Apr. 12, 2010) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx. We ordered petitioner released pending the outcome of his merits appeal, which alleged errors in the indictment, juror selection, and jury instructions. Id. at *2.
¶ 3. In January 2011, we affirmed petitioner's conviction. State v. Chandler, No. 10-135, 2011 WL 4974829, at *1 (Vt. Jan. 27, 2011) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx. The trial court denied petitioner's request to modify his sentence and ordered him to begin serving the remainder starting March 16, 2011. On March 11, 2011, petitioner sought post-conviction relief under 13 V.S.A. § 7131 and extraordinary relief, alleging ineffective assistance of counsel during the trial. Meanwhile, petitioner reported to jail as ordered and served the remainder of his sentence.
¶ 4. In July 2011, the State moved to dismiss the petition for post-conviction relief, arguing that the trial court lacked jurisdiction to hear the case because petitioner was no longer in custody. Petitioner opposed the State's motion to dismiss, arguing, among other things, that the court should hear his petition because his custodial sentence had not expired when he filed. Petitioner also alleged that he would suffer serious collateral consequences as a result of the allegedly defective felony conviction, including possible restrictions on his electrician's license, an inability to travel to Canada, and a federal prohibition on his possession of a firearm. On February 9, 2012, after confirming that petitioner had completed his sentence, the trial court dismissed the petition for post-conviction relief without prejudice. The court did not specifically address petitioner's alternative request for extraordinary relief.*fn1
¶ 5. In dismissing the post-conviction-relief petition, the court opined that the fact that petitioner was in custody at the time he filed his petition was insufficient "to ensure that the court has jurisdiction." The court concluded that because petitioner's sentence had expired, it lacked jurisdiction unless petitioner could allege a significant collateral consequence as a result of the challenged conviction. The court found that possible restrictions on petitioner's professional licensing, travel to Canada, and possession of a firearm did not "amount to the kind of 'substantial infringements on liberty' that require the court's review of the underlying conviction." The court invited petitioner to renew his request for post-conviction relief "in the event that such a consequence may actually occur in the future." This appeal followed.
¶ 6. On appeal, petitioner largely reiterates the same claims he raised in his opposition to the State's motion to dismiss. Petitioner supplemented his appeal with allegations of more specific collateral consequences, including, among other things, potential problems with his electrician's licensure in Connecticut and New Hampshire, an inability to submit bids for federal jobs, and disqualification as a corporate officer. For the reasons outlined below, we conclude that when a petitioner moves under § 7131 to challenge a conviction while still in custody for that challenged conviction, the trial court possesses jurisdiction to hear the claim and the expiration of the custodial term will not render the cause moot.*fn2
¶ 7. At the outset, it is incumbent upon us to clarify the appropriate terminology. Although the trial court and State frame the discussion as one involving jurisdiction, the issue presented is more properly conceived of as one of mootness. "In a case such as this where the petitioner has been released from custody but continues to suffer collateral harm because of his conviction, the questions of subject matter jurisdiction and mootness might easily be confused. These questions are importantly distinct." Vasquez v. Ryan, No. 11-2300, 2012 WL 959354, at *4 n.6 (E.D. Pa. Mar. 21, 2012) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
¶ 8. To resolve a petition for post-conviction relief, a court must first have jurisdiction. Once jurisdiction has been established, and throughout the pendency of the litigation, the court must also ensure that the controversy remains live. In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) ("A controversy must remain alive throughout the course of appellate review."). To remain a live controversy, the court must be capable of affording a petitioner relief.
¶ 9. As the U.S. District Court for the Eastern District of Pennsylvania observed in Vasquez, jurisdiction for purposes of the related federal post-conviction relief statute is measured at the time of filing. See 2012 WL 959354, at *4 n.6. ("[J]urisdiction is determined by a one-time snapshot of the petitioner's condition at the time of filing."); accord E.C. v. Va. Dept. of Juvenile Justice, 722 S.E.2d 827, 830 (Va. 2012) ("While intervening events may affect the nature of the relief available, they do not end or extinguish the jurisdiction of the Court."). In the usual course, a petitioner attacking a conviction under our state's post-conviction relief statute will file while incarcerated.
¶ 10. When, as here, a petitioner files for post-conviction relief while still in custody under a sentence imposed for the very same conviction he is challenging, the court undoubtedly has jurisdiction. See 13 V.S.A. § 7131 ("A prisoner who is in custody under sentence of a court . . . may at any time move the superior court of the county where the sentence was imposed to vacate, set aside or correct the sentence.").*fn3 Thus, we are left to determine whether petitioner's release from that sentence rendered his petition moot.
¶ 11. We have previously addressed a situation in which a petitioner sought to revive a potential collateral challenge to an earlier conviction by seeking post-conviction relief while in custody on a sentence enhanced by that previous conviction but not while in custody under the challenged conviction. See, e.g., In re Collette, 2008 VT 136, 185 Vt. 210, 969 A.2d 101 (affirming mootness dismissal of PCR challenging 12-year-old, conclusively final conviction filed while petitioner was in custody on sentence enhanced by challenged conviction when enhanced sentence expired before review); cf. State v. Boskind, 174 Vt. 184, 185, 807 A.2d 358, 360 (2002) (defendant challenging earlier conviction based upon which State seeks sentencing enhancement must lodge petition in post-conviction proceeding not at sentencing). We have similarly addressed a situation in which a petitioner sought to challenge an aged conviction by filing a motion for post-conviction relief after the custodial sentence for that conviction had expired. In re Smith, 144 Vt. 494, 496, 479 A.2d 152, 153 (1984) (finding no jurisdiction under § 7131 when petitioner moved for relief after completing kidnapping sentence and "failed to allege or demonstrate any collateral consequence stemming from that sentence"). And we have considered situations in which it is unclear whether petitioners were ever held under custodial sentences. See, e.g., In re LaMountain, 170 Vt. 642, 643, 752 A.2d 24, 25 (2000) (lifetime revocation of driver's license insufficient to satisfy § 7131 jurisdictional requirement). We have not, however, confronted the precise question presented here: whether a petitioner's post-conviction claim of ineffective assistance of counsel--filed before the expiration of the sentence for the challenged conviction--is rendered moot by his release.
¶ 12. After carefully reviewing our precedent and related case law from other jurisdictions, we conclude that petitioner's situation differs markedly from those cases in which we have determined either that the trial court lacked jurisdiction because of insufficiently pleaded collateral consequences or that a trial court's inability to address a long-final conviction rendered any challenge to that conviction moot. We consequently hold that when a petitioner initiates a proceeding attacking the validity of a conviction for which he is still in custody, his release from custody will not moot the petition.
¶ 13. Our approach accords with that adopted by the U.S. Supreme Court in considering the related federal habeas statutes. In the federal courts, once jurisdiction has been established in a post-conviction relief case, courts presume the existence and sufficiency of collateral consequences flowing from an allegedly faulty conviction without the need to articulate the same type of particularized harm we have in our own law required to trigger initial jurisdiction when a petitioner is no longer in custody. See, e.g., Spencer v. Kemna, 523 U.S. 1, 8 (1998). In Kemna, the U.S. Supreme Court noted that federal courts "presume that a wrongful criminal conviction has continuing collateral consequences, (or, what is effectively the same,  count collateral consequences that are remote and unlikely to occur)" to avoid mootness. Id. (citing Sibron v. New York, 392 U.S. 40, 55-56 (1968)). In Sibron, the U.S. Supreme Court held that a "criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." 392 U.S. at 57; see also ...