stating that documents which were not part of the file in the trial court cannot be considered part of the record on appeal
How later courts described this case
- stating that documents which were not part of the file in the trial court cannot be considered part of the record on appeal
- holding new rule on assistance of counsel applied retroactively because it was “fundamental element of due process”
- recognizing existence of prospectivity exception in Shattuck
- 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
Written by the judges who cited it.
The opinion
Morse, J.,
concurring. I disagree with Part III of the Court’s opinion. The Court finds absurd that “only defendants who violated probation for their prior offenses would receive the benefit of our decision in DeRosa.” 165 Vt. at 85, 676 A.2d at 354. The “absurdity” arises by assuming the accuracy of the State’s apparent concession that “if a defendant had received a suspended sentence for a prior uncounseled conviction, but had violated probation and spent some time in prison, that prior conviction could not be used for enhancement purposes.” In fact, the concession is inaccurate. In State v. DeRosa, 161 Vt. 78 , 633 A.2d 277 (1993), we held that a suspended sentence must be vacated when the court, in denying an eligible defendant appointed counsel, promised that she would not be imprisoned. Id. at 83 , 633 A.2d at 280 . We stated that “the error below was only in the sentence” — the suspended term of imprisonment — and struck the offending portion, leaving the fine component of the sentence intact. Id. DeRosa, too, had been convicted of DUI, and once the mistake in her sentence had been repaired, I doubt this Court would have ruled that her conviction would be unavailable to enhance a future DUI sentence.
It simply is not true that, under DeRosa , probation violators would have an advantage in a case like this if they had served time as a result of the violation. The validity of a sentence does not turn on whether the terms of probation were violated. On the contrary, the DeRosa defense is available to every eligible defendant who was denied counsel and received a suspended sentence. If defendants choose not to avail themselves of the DeRosa remedy, it does not follow that they should gain an advantage in later enhancement cases by having their prior convictions ignored. The criminal justice system *89 is not a board game, “land on Chance,” and you get a ‘“Get Out of Jail Free’ card.” Rights given up in one case are not “rain checks” for future prosecutions.
We were clear in DeRosa that the conviction is unaffected by an erroneous suspended sentence. Only the suspended sentence may be challenged. The reasoning of State v. Porter, 164 Vt. 515, 671 A.2d 1280 (1996), applies here. Notwithstanding the DeRosa violations, these convictions can be used for sentence enhancement. I am authorized to say that the Chief Justice joins this concurrence.