Appeal from Superior Court, Addison Unit, Civil Division
Robert A. Mello, J.
Matthew Valerio, Defender General, and Marshall Pahl,
Appellate Defender, Montpelier, for Appellant.
R. Fenster, Addison County State's Attorney, and Ashley
A. Hill, Deputy State's Attorney, Middlebury, for
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
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.
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
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. It squarely holds that whether a
petitioner was in custody under sentence is determined when
the PCR complaint is ...