On Appeal from Superior Court, Chittenden Unit, Criminal Division James R. Crucitti, J.
H. Dickson Corbett, Chittenden County Special Deputy State's Attorney, Orange County State's Attorney's Office, Chelsea, for Plaintiff-Appellee.
Paul D. Jarvis of Jarvis and Kaplan, Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Defendant appeals the denial of his motion, which requested that the trial court "correct the record" by amending his third driving-under-the-influence (DUI) conviction to appear as a DUI-1. Defendant filed the motion with the ultimate goal of reducing his conviction from a felony to a misdemeanor to reduce its collateral consequences. We affirm.
¶ 2. In 2005 and 2008, defendant was convicted of two DUIs that occurred while he was eighteen and twenty-one years old, respectively. In February 2014, defendant pleaded guilty to a DUI-3, which occurred when he was twenty-seven years old. Because he had previously been convicted of two DUIs, defendant was subject to enhanced penalties. See 23 V.S.A. § 1210(d) ("A person convicted of violating [the DUI statute] who has previously been convicted two times of a violation of that section shall be fined not more than $2, 500.00 or imprisoned not more than five years, or both."). Based on the plea agreement, the court sentenced him to one-to-three years, all suspended except for 180 days of home confinement, with standard and special conditions of probation. Because the maximum term of imprisonment for a DUI-3 is greater than two years, defendant's latest conviction is a felony conviction. See 13 V.S.A. § 1 ("Any other provision of law notwithstanding any offense whose maximum term of imprisonment is more than two years, for life or which may be punished by death is a felony."). Defendant stresses that it will not only preclude him, a hunter, from owning a gun but also negatively affect his job prospects.
¶ 3. Just days after this DUI-3 conviction, defendant filed a motion to seal the records of the two prior convictions through 33 V.S.A. § 5119(g), which allows for the sealing of records for many crimes committed before age twenty-one, including most DUIs. Defendant supported this motion by stating that he was charged with the first two DUIs when he was twenty-one years old or younger. He made this argument even though the relevant statute requires that the underlying crime-not the charge-occur prior to the defendant attaining the age of twenty-one and the second DUI actually occurred when defendant was already twenty-one. 33 V.S.A. § 5119(g). Nevertheless, this motion was granted in April 2014 and the DUI-1 and DUI-2 were both sealed.
¶ 4. Defendant then filed a motion to modify the third sentence. In this motion, he argued simply that the sealing of his two prior convictions retroactively made the existing third sentence outside the statutory maximum for a DUI-1; in other words, that the third sentence must be amended because defendant was no longer subject to enhanced, felony sentencing and the crime must be a misdemeanor. A week after the court granted the motions to seal, this motion was denied on the basis that his record had shown two prior DUI convictions at the time of sentencing. In other words, at the time of conviction on the DUI-3 charge defendant's record showed two prior offenses. The court stated that "At the time of conviction defendant had two prior convictions for DUI. Actions subsequent to plea and sentence do not impact on original sentence." Defendant next filed what he describes as a "motion to correct the record, " which was denied for the same reason as the motion to modify. He then filed a motion to reconsider, which was also denied. Defendant now appeals the denial of the motion to correct the record.
¶ 5. Defendant styles his pleading as a "motion to correct the record, " but the relief he seeks is not available through either Rule 35 or Rule 36 of the Vermont Rules of Criminal Procedure. A Rule 35 challenge can be brought at any time to correct an illegal sentence. See V.R.Cr.P. 35 ("The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence."). However, this rule tracks its federal analogue-Federal Rule of Criminal Procedure 35-which is intended to correct ambiguous sentences and arithmetical, technical, or other clear errors in sentences. See V.R.Cr.P 35 ("This rule is derived from Federal Rule 35"); see also United States v. Gallego, 943 F.Supp. 343, 344-45 (S.D.N.Y. 1996) ("Rule 35(c) permits correction only of arithmetical, technical or other clear errors in a sentence . . . it is 'very narrow' " (quoting F.R.Cr.P. 35)). Defendant's DUI-3 record is not the result of an arithmetical, technical, or other clear error because the record at sentencing indicated that defendant already had two DUI convictions.
¶ 6. Indeed, defendant's challenge to his DUI-3 does not even fall under the purview of Rule 35, which is focused on sentences, not on convictions. His challenge is a challenge to a conviction, not a challenge to a sentence, because a DUI-3 is a chargeable offense rather than simply an enhanced sentence. See State v. Morrissette, 170 Vt. 569, 569, 743 A.2d 1091, 1091 (1999) (mem.) (upholding defendant's DUI-3 conviction, where he was both charged with and conviction of DUI-3, rather than merely subject to enhanced punishment), overruled on other grounds by In re Manosh, 2014 VT 95, 197 Vt. 424, 108 A.3d 212. Moreover, as defendant concedes, the "[third conviction] was correct when it was entered" because it was based on the two prior unsealed DUI convictions. See State v. Oscarson, 2006 VT 30, ¶ 9, 179 Vt. 442, 898 A.2d 123 (holding that defendant cannot successfully challenge legal sentence or attack underlying conviction through motion for sentence reconsideration). In short, the DUI-3 cannot now be amended through Rule 35 because it was correct when entered and-as a conviction, not a sentence-is not subject to Rule 35.
¶ 7. Similarly, the correction of record provision of Rule 36 does not apply because the authorization in the Rule is limited to clerical mistakes. Amending defendant's conviction from a DUI-3 to a DUI-1 is a substantive amendment dependent on the underlying facts, not a mere correction of a clerical mistake. Compare State v. Cornell, 2014 VT 82, ¶ 9, 197 Vt. 294, 103 A.3d 469 ("Under Criminal Rule 36, the court has discretion to correct clerical mistakes arising by omission or oversight") with Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 367, 543 A.2d 1320, 1322 (1988) (holding that error in method by which interest from damages award was calculated was "an error in substantive law, not a clerical or mathematical error") and State v. Champlain Cable Corp., 147 Vt. 436, 439, 520 A.2d 596, 599 (1986) ("If a court . . . renders [a judgment] that is imperfect or improper, it has no power to remedy any such error or omission by treating it as a clerical mistake.").
¶ 8. Rather than relying on a procedural mechanism, defendant argues that relief is available directly through 33 V.S.A. § 5119(g). This section requires the court to determine that defendant committed the crime before turning twenty-one years old, that two years have elapsed since defendant's final discharge, and that defendant has been rehabilitated. It reads, in its entirety:
(g) On application of a person who has pleaded guilty to or has been convicted of the commission of a crime under the laws of this State which the person committed prior to attaining the age of 21, or on the motion of the Court having jurisdiction over such a person, after notice to all parties of record and hearing, the Court ...