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In re D.C.

Supreme Court of Vermont

June 24, 2016

In re D.C., Juvenile

         On Appeal from Superior Court, Addison Unit, Civil Division Robert A. Mello, J.

          Matthew Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Appellant.

          David R. Fenster, Addison County State's Attorney, and Ashley A. Hill, Deputy State's Attorney, Middlebury, for Appellee.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          DOOLEY, J.

         ¶ 1. Petitioner appeals the dismissal of a complaint for post-conviction relief (PCR) under 13 V.S.A. § 7131 alleging that the change-of-plea hearing that preceded his adjudication of juvenile delinquency was constitutionally inadequate. The superior court held that the PCR statute does not apply to juvenile delinquency proceedings and that the only remedy available to petitioner was through 33 V.S.A. § 5113 and Vermont Rule of Civil Procedure 60(b), but that route was foreclosed because petitioner's claim was untimely raised. On appeal, petitioner argues that the case is not moot, despite the fact he is over the age of majority and no longer committed to state custody, and that the PCR statutes permit juveniles to collaterally attack their adjudications. We agree, reverse the superior court's order dismissing petitioner's PCR complaint, and remand for further proceedings.

         ¶ 2. On January 10, 2012, petitioner, then fourteen-years old, was adjudicated delinquent on a charge of simple assault based on an admission of guilt. He was placed on juvenile probation until his eighteenth birthday, March 24, 2015. On March 23, 2015, petitioner filed a PCR petition under 13 V.S.A. § 7131, alleging that the change-of-plea hearing that preceded his adjudication was constitutionally inadequate, as the colloquy pursuant to Vermont Rule of Criminal Procedure 11, made applicable to delinquency actions by Vermont Rule for Family Proceedings 1(a), failed to establish a factual basis for his admission of guilt. In response, the State filed a motion to dismiss, arguing that a PCR proceeding pursuant to 13 V.S.A. § 7131 is not available in delinquency cases and the only avenue available for post-conviction review is 33 V.S.A. § 5113, and that even if the court had jurisdiction to consider a PCR petition under § 7131 in a juvenile matter, the plea colloquy in this case was sufficient.

         ¶ 3. The court granted the State's motion. In its decision, the court considered the relationship between the Vermont Rules of Criminal Procedure and the Juvenile Proceedings Act, 33 V.S.A. §§ 5101-5322, recognizing that "as with criminal cases, '[a] motion to withdraw an admission of delinquency [in a juvenile case] must be made prior to or within 30 days after the date of entry of an adjudication of delinquency.' " The court observed that, according to the 2009 Reporter's Notes for Rule for Family Proceedings 1(j), "the remedy [for plea withdrawal] after the 30-day period has passed would be a petition under 33 V.S.A. § 5532." All the statutes dealing with juvenile proceedings, including § 5532, were repealed in 2008 and replaced with a new Juvenile Proceedings Act. See 2007, No. 185 (Adj. Sess.), § 13 (effective Jan. 1, 2009); Reporter's Notes-2009 Emergency Amendment, V.R.F.P. 1. The court noted that "only one provision in chapters 51-53 represents a replacement" for § 5532, and quoted part of that provision:

(a) An order of the court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.
(b) Upon motion of a party or the Court's own motion, the Court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child.

33 V.S.A. § 5113. Civil Procedure Rule 60 provides opportunity for relief from judgment or order for:

(a)Clerical mistakes. . . .
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

         ¶ 4. The court stated that because more than thirty days had passed since petitioner's adjudication, he was barred from seeking relief under Family Rule 1(j), and that "his avenue for post-conviction relief is thus 33 V.S.A. § 5113." Because there had been no change in circumstances, the court determined petitioner was ineligible for relief under § 5113(b). As to § 5113(a), the court concluded that petitioner's argument was untimely under Civil Procedure Rule 60, as he did not file for relief "for more than three years after the adjudication, on the last possible day" and it was "unclear what relief could be granted, " as petitioner was over the age of eighteen and no longer on probation. The court also noted, without any reasoning, that "the analysis would be the same under the 13 V.S.A. § 7131 PCR petition." This appeal followed.

         ¶ 5. On appeal, we consider the following arguments: (1) whether petitioner's PCR petition is moot because he is over eighteen and no longer in state custody; and (2) whether a juvenile may use 13 V.S.A. § 7113 to collaterally attack an unconstitutional delinquency conviction, or a delinquency conviction based on a guilty plea that did not comply with Criminal Procedure Rule 11, or whether the juvenile must rely exclusively on 33 V.S.A. § 5113 for any post-conviction review challenge.[1]

         ¶ 6. We evaluate motions to dismiss using the same standard as the superior court, affirming dismissal only if "it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief. In assessing the claims, we regard as true the complaint's well-pleaded factual allegations." In re Russo, 2013 VT 35, ¶ 10, 193 Vt. 594, 72 A.3d 900 (quotation and citation omitted). Questions of statutory interpretation are "pure question[s] of law that we review de novo." In re Towne, 2013 VT 90, ¶ 5, 195 Vt. 42, 86 A.3d 429.

         ¶ 7. We must begin by addressing the issue of mootness. The State has raised it for the first time on appeal. We agree, however, that the appellee can raise mootness at any time and normal rules of preservation do not apply. Town of Charlotte v. Richmond, 158 Vt. 354, 357-58, 609 A.2d 638, 640 (1992) (noting questions relating to subject matter jurisdiction can be raised at any time). As a result, we address the merits of the State's mootness argument.

         ¶ 8. The State argues that even assuming the PCR statute applies, § 7131 "clearly requires a petitioner be in custody, under sentence." Because petitioner is "no longer subject to custody or probation, " as he reached the age of majority shortly after filing his complaint, his PCR is therefore moot. The State further notes that while several courts in other states permit juvenile habeas corpus petitions after a juvenile is discharged, courts that have not found mootness have done so on the basis of "some form of ongoing harm to the petitioners." Here, the State argues, because petitioner's supervision terminated and his juvenile record is not public, he suffers no collateral consequences and his petition moot. We conclude that the State's arguments are meritless.

         ¶ 9. Our opinion in In re Chandler resolves the State's underlying contention that a PCR becomes moot when a petitioner is no longer in custody under sentence. 2013 VT 10, 193 Vt. 246, 67 A.3d 261. In Chandler, the petitioner filed a PCR under § 7131 on March 11, 2011 on the ground of ineffective assistance of counsel. The petitioner's conviction had been affirmed by this Court in January 2011, and the trial court had denied a request to modify his sentence of twenty-nine to thirty days in jail. He began serving his sentence on March 16, 2011, after the filing of the PCR petition. In July 2011, the State moved to dismiss the PCR complaint, contending the trial court lacked jurisdiction "because [the] petitioner was no longer in custody." The court agreed and dismissed the petition in February 2012. Id. ¶ 4. We reversed, holding 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." Id. ¶ 6. In reaching our conclusion, we noted this approach "accords with that adopted by the U.S. Supreme Court in considering the related federal habeas statutes, " id. ¶ 13, as well as that of "many states" across the country, id. ¶ 18 (collecting cases). We noted that a new trial "may be the only relief that a court could ever afford [a] petitioner because a Vermont court lacks jurisdiction to directly address collateral consequences imposed by other jurisdictions." Id. ¶ 17.

         ¶ 10. Chandler directly controls this case with respect to mootness.[2] It squarely holds that whether a petitioner was in custody under sentence is determined when the PCR complaint is ...

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