In re D.C., Juvenile

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.

2016 VT 72

No. 2015-195

In re D.C., Juvenile Supreme Court

On Appeal from
Superior Court, Addison Unit,
Civil Division

April Term, 2016

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.

¶ 1. DOOLEY, J. 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.

2
 (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

3
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

1
The State discusses the issue of the inapplicability of coram nobis as a form of relief in
the instant case. Although coram nobis was addressed by the superior court, it was not raised or
argued by petitioner in his brief to this Court. Accordingly, we decline to address it here. In re
Smith, Bell & Hauck Real Estate, Inc., 132 Vt. 295, 300, 318 A.2d 183, 187 (1974) (stating that
“[i]ssues not briefed are waived”).
4
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 filed and not at a later date when custody may have ceased.

2
The State has not argued that Chandler is distinguishable because the petitioner in that
case could be retried if he prevailed in his PCR action, whereas petitioner here could not be
retried because juvenile court jurisdiction over him has ended. Because PCR petitions are not
subject to a statute of limitations, it is very often true that retrial, or trial in the case of a plea of
5
 ¶ 11. The State argues that the Chandler rule should not be applied to juvenile

delinquency proceedings because the juvenile suffers no adverse collateral consequences from a

delinquency adjudication once the juvenile reaches the age of majority. In Chandler, we drew on

decisions of the U.S. Supreme Court holding that adverse collateral consequences of a criminal

conviction are presumed and need not be proven in the individual case to avoid mootness. 2013

VT 10, ¶ 13. We recognize that the law may reduce the adverse collateral consequences of a

juvenile conviction as compared with an adult conviction but nonetheless conclude that there are

still significant collateral consequences such that the presumption should prevail.

¶ 12. The State argues that the adverse collateral consequences of a juvenile

adjudication are nonexistent because the record is not public. We conclude that the State

overstates this public access limitation. Although juvenile records are generally confidential,

there are exceptions to confidentiality. A criminal court has access to juvenile delinquency

records and can consider them in imposing a sentence on conviction of an adult crime. 33

V.S.A. § 5117(b)(1)(C). Similarly, the records are available to corrections officials who are

preparing a presentence investigation report, determining placement, preparing a treatment plan,

or supervising the juvenile after conviction of an adult crime and the parole board while

considering parole for that crime. Id. § 5117(b)(1)(C), (G). They are available to state’s

attorneys and other law enforcement officers “in connection with record checks and other legal

purposes.” Id. § 5117(d). The family division can grant access to the juvenile records on a need

to know basis. Id. § 5117(b)(1)(F). They can, with the court’s permission, be used in certain

instances in divorce or parentage actions. Id. § 5117(c). The fact of the conviction under certain

circumstances is provided to the superintendent of a public school, or headmaster of a private

school, which the juvenile is attending. Id. § 5118(c).

guilty, is practically unavailable. We do not believe that the presence or absence of an
opportunity for a retrial bears on mootness such as to change the rule of Chandler.
6
 ¶ 13. As petitioner argues, the limited access to the juvenile record is only part of the

story. The person with a delinquency adjudication can be required for certain purposes to

disclose the fact of the conviction. Petitioner’s counsel has included examples in his brief—the

adjudication must be disclosed by applicants to the military, facilities requiring government

security clearance, and some colleges and universities; and it has the potential to result in

expulsion, denial of firearms licenses in other states, and denial of public housing. Even where

the person with the juvenile conviction is not required by law to disclose, an honest response to a

question, for example, from a prospective employer, requires disclosure.

¶ 14. We note that the collateral consequences endured by juvenile offenders have led

many of our sister states to conclude that PCRs and direct appeals brought by juveniles remain

live controversies, even if they are brought after the juvenile has reached the age of majority or

been released from state custody. For example, in E.C. v. Virginia Department of Juvenile

Justice, a juvenile adjudged delinquent of breaking and entering and intent to commit rape, who

had been ordered to register as a sex offender, filed a petition for a writ of habeas corpus alleging

his guilty plea had been unknowing and involuntary and was invalid because he had received

ineffective assistance of counsel. 722 S.E.2d 827, 828 (Va. 2012). The juvenile was released

from parole supervision six days after the petition was filed. The Commonwealth later moved to

dismiss the petition on the grounds the circuit court “lacked jurisdiction to consider the petition

because [the juvenile] was no longer under any form of detention.” Id. at 829. The circuit court

granted that motion, holding in part that even if jurisdiction continued, the case was moot as the

juvenile “no longer was subject to confinement and, therefore, no order favorably affecting the

duration of his confinement could be entered.” Id. at 831.

¶ 15. The Virginia Supreme Court reversed. The court began its analysis by noting the

line of cases from the U.S. Supreme Court and other states holding that release from custody

prior to adjudication of a PCR petition “does not automatically terminate the existence of an

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actual controversy and render the case moot” where the petitioner “continues to suffer a concrete

and continuing injury, which is a collateral consequence of the conviction.” Id. (citing cases).

The court observed the “substantial consequences” imposed on the juvenile as a result of his

convictions and the requirement that he register as a sex offender—enhanced punishment

resulting from prior convictions, prohibitions on owning or transporting a firearm, prohibitions

on adopting or fostering children, restrictions on choice of school and employment, and

reputational harm from viewing on the sex offender registry. Id. at 832-33.

¶ 16. The court rejected the Commonwealth’s argument that the “only relief” a court

considering a habeas petition can grant is discharge from custody, thereby rendering the case

moot. Id. at 833. The court observed that, setting aside the fact that, practically speaking,

petitions are entertained and relief granted even when the relief will not result in discharge—for

example, when a PCR court orders a new trial—the habeas corpus statutes are “remedial in

nature and are to be liberally construed.” Id. at 834. The court noted that if the

Commonwealth’s position was accepted, the department of juvenile justice could defeat any

petition by releasing a juvenile upon notification that a complaint was filed, thus leaving

juveniles with “no remedy to vindicate” their rights. Id. The court therefore concluded that the

collateral consequences imposed on the juvenile were “sufficient to sustain a continued

controversy” and reversed the dismissal of the action, concluding that “[i]f successful, the relief

[the juvenile] seeks can be afforded by the court exercising its habeas corpus jurisdiction.” Id. at

835. Other decisions are similar. See In re Rousselow, 341 N.W. 2d 760, 763 (Iowa 1983)

(holding juvenile’s appeal “not mooted simply because he or she has reached the age of

majority” as contention and relief “remain[] real”, as adjudication remains on permanent record

and can be “introduced into evidence against [juvenile] at a sentencing proceeding after the

conviction of a felony”); State v. Rodgers, 235 S.W.3d 92, 97-98 (Tenn. 2007) (rejecting state’s

argument that appeal by petitioner who reached age of nineteen before disposition was moot as

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juvenile violations “may have a subsequent adverse effect”—such as being considered as

sentence enhancement factors for adult convictions—and concluding appeal presents a “genuine

and existing controversy” (quotation omitted)).

¶ 17. Therefore, we hold that petitioner’s PCR case is not moot under Chandler.

Accordingly, we proceed to the question of whether a juvenile can challenge a delinquency

adjudication using the PCR statute.

¶ 18. In summary, petitioner argues that the PCR statute applies according to its terms

and there is no indication that it is not applicable because of the availability of a different remedy

in the Juvenile Proceedings Act. The State responds that 33 V.S.A. § 5113, which incorporates

Civil Procedure Rule 60, is the “only provision[] that govern[s] the relief sought in these

proceedings;” it suggests petitioner has pointed to no “deficiency in the available juvenile

remedy provisions” but instead, rests his argument on a “preference for post-conviction relief

proceedings.”

¶ 19. There are really two questions here, and it is useful to analyze them separately:

(1) whether in the absence of a remedy in the Juvenile Proceedings Act, the Post-Conviction

Relief Act, 13 V.S.A. §§ 7131-7137, applies in the case of a juvenile delinquency adjudication;

and (2) if so, whether the presence of a remedy in 33 V.S.A. § 5113 displaces the PCR remedy

such that it is no longer available. Vermont adopted the PCR Act in 1966, as a “special statutory

remedy in the nature of habeas corpus.” In re Clark, 127 Vt. 555, 557, 255 A.2d 178, 180

(1969). It was patterned after the federal PCR statute, 28 U.S.C. § 2255. In re Stewart, 140 Vt.

351, 355, 438 A.2d 1106, 1107 (1981). The federal statute was intended to provide a remedy

“identical in scope” to federal habeas corpus. Davis v. United States, 417 U.S. 333, 343 (1974).

We described our PCR statute as a venue device “enacted to simplify the often cumbersome

procedures associated with federal habeas corpus . . . [and] not designed to affect the availability

of habeas relief.” Stewart, 140 Vt. at 356, 438 A.2d at 1107-08 (citations omitted). The U.S.

9
Supreme Court has been clear that habeas corpus enjoys a place of primacy and prestige in

American law:

We do well to bear in mind the extraordinary prestige of the Great
Writ, habeas corpus ad subjiciendum, in Anglo-American
jurisprudence: the most celebrated writ in the English law. It is a
writ antecedent to statute, and throwing its root deep into the
genius of our common law. It is perhaps the most important writ
known to the constitutional law of England, affording as it does a
swift and imperative remedy in all cases of illegal constraint or
confinement. It is of immemorial antiquity, an instance of its use
occurring in the thirty-third year of Edward I. Received into our
own law in the colonial period, given explicit recognition in the
Federal Constitution, incorporated in the first grant of federal court
jurisdiction, habeas corpus was early confirmed by Chief Justice
Marshall to be a great constitutional privilege. Only two Terms
ago this Court had occasion to reaffirm the high place of the writ in
our jurisprudence: We repeat what has been so truly said of the
federal writ: there is no higher duty than to maintain it unimpaired,
and unsuspended, save only in the cases specified in our
Constitution.

These are not extravagant oppressions. Behind them may be
discerned the unceasing contest between personal liberty and
government oppression. It is no accident that habeas corpus has
time and again played a central role in national crises, wherein the
claims of order and liberty clash most acutely, not only in England
in the seventeenth century, but also in America from our very
beginnings, and today. Although in form the Great Writ is simply
a mode of procedure, its history is inextricably intertwined with the
growth of the fundamental rights of personal liberty. For its
function has been to provide a prompt and efficacious remedy for
whatever society deems to be intolerable restraints. Its root
principle is that in a civilized society, government must always be
accountable to the judiciary for a man’s imprisonment; if the
imprisonment cannot be shown to conform with the fundamental
requirements of law, the individual is entitled to his immediate
release. Thus there is nothing novel in the fact that today habeas
corpus in the federal courts provides a mode for the redress of
denials of due process of law. Vindication of due process is
precisely its historic office.

Fay v. Noia, 372 U.S. 391, 399-402 (1963) (quotations and citations omitted), overruled in part

on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977); accord Shuttle v. Patrissi, 158 Vt.

127, 129-30, 605 A.2d 845, 847 (1992) (noting Vermont’s Constitution guarantees writ “ ‘shall

in no case be suspended’ ” and that, while originally limited to situations resulting in immediate

10
release from custody, habeas corpus today protects “broad range of liberty interests” (quoting Vt.

Const. ch. II, § 41)); Shequin v. Smith, 129 Vt. 578, 581, 285 A.2d 708, 710 (1971) (“While a

legislature may regulate the procedure with respect to habeas corpus, and to some extent, the

purposes for which it may be used, the writ may not be abrogated or its efficiency curtailed by

legislative action.”).

¶ 20. In Stewart, we noted that the availability of habeas corpus relief had expanded

both federally and in Vermont even before the enactment of post-conviction relief statutes:

Like its counterpart in the federal system, our post-conviction
relief has expanded in two distinct and important dimensions.
First, the species of errors subject to collateral attack have
increased. Habeas corpus formerly protected against only
“jurisdictional” defects in criminal judgments. Relief is now
available for a variety of errors that affect the validity of guilty
verdicts. Second, the “Great Writ” has expanded to encompass a
wide range of relief, including remedies short of full release, and
the scope of review itself is likewise broad.

The expansion of habeas relief has largely occurred under the
guise of modern post-conviction relief statutes, such as 13 V.S.A.
§ 7131 and 28 U.S.C. § 2255 (1976). These statutes were enacted
to simplify the often cumbersome procedures associated with
habeas corpus. Section 2255 was designed to distribute the federal
habeas caseload evenly among the federal courts and to provide a
more convenient forum for obtaining relevant records and
witnesses . . . . Similarly, 13 V.S.A. § 7131 apportioned Vermont’s
habeas cases among the trial courts. Thus, the modern statutes,
including 13 V.S.A. § 7131, are venue devices, and are not
designed to affect the availability of habeas relief.

Stewart, 140 Vt. at 356, 438 A.2d at 1107-08 (quotations, citations and internal alterations

omitted). In fact, liberalization of habeas corpus and adoption of the PCR remedy happened

simultaneously. Id. Section 7131 permits a prisoner “who is in custody under sentence of a

court” to move the court of the county where the sentence was imposed to “vacate, set aside, or

correct the sentence” on the ground that the sentence was: imposed in violation of the laws or

constitution of the State of Vermont or the United States, was imposed by a court without

jurisdiction, exceeds the maximum authorized by law, or is “otherwise subject to collateral

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attack.” The basic issue before us is whether a juvenile delinquent can be a “prisoner” who is “in

custody under sentence.”

¶ 21. In analyzing this question, it is undisputed that if petitioner had been a criminally

convicted adult under a sentence of probation, he would be considered a prisoner who was “in

custody under sentence” and could bring a PCR action under § 7131. See State v. Wargo, 168

Vt. 231, 235, 719 A.2d 407, 409-10 (1998) (concluding probationer in custody under sentence

“for purposes of . . . the PCR statute.”). This conclusion does not end our inquiry because an

order of the court in a delinquency proceeding cannot “be deemed a conviction of crime,” 33

V.S.A. § 5202(a)(1)(A), and the purpose of the Juvenile Proceedings Act is to “remove from

children committing delinquent acts the taint of criminality and the consequences of criminal

behavior and to provide supervision, care, and rehabilitation,” id. § 5101(a)(2). Thus, the

argument is that a juvenile who has been found to have committed a delinquent act is not a

“prisoner” and is not “under sentence,” irrespective of the disposition sanction ordered by the

court. Although under different PCR statute language,3 a number of courts have adopted this

view. See, e.g., In re Vincent K., 2 N.E.3d 506, 518-19 (Ill. App. Ct. 2013) (stating that because

delinquent is neither “imprisoned in the penitentiary” nor “subject to proceedings which resulted

in his or her conviction,” plain language of PCR statute bars relief (quotation omitted)).

¶ 22. For a number of reasons, we conclude that the statute applies. First, we have

interpreted the statute broadly. A good example is the circumstance of the adult version of the

petitioner in this case—a person who is on probation and is not in jail. We consider such a

person a “prisoner” and “under custody” even though not incarcerated as long as the person’s

conduct is “to some degree under the supervision or direction of judicial officers” or the person

“may face the possibility of imminent incarceration without a formal trial or criminal

3
Only a small number of states have PCR statutes modeled on 28 U.S.C. § 2255, and
none of these states have addressed the question of whether the statute applies to juveniles who
have been found to have committed a delinquent act.
12
conviction.” In re Liberty, 154 Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (mem.). Also

supporting this broad reading is the U.S. Supreme Court’s observation that “microscopic analysis

of § 2255 surely shows that the statutory language is somewhat lacking in precision.” Davis, 417

U.S. at 343.

¶ 23. Second, in view of the historical development of the PCR remedy, the question of

whether the PCR remedy may apply actually has two parts: whether the PCR remedy may apply

and whether the writ of habeas corpus may be available. At least with respect to whether relief

may be available with respect to juvenile delinquency adjudications, habeas corpus does not have

the limitations of PCR. It applies whenever a person is “restrained of his liberty by an officer or

other person,” not only to criminally convicted prisoners. 12 V.S.A. § 3952.4 It applies, for

example, where a juvenile is in the custody of the state under a judicial temporary care order in a

child in need of care or supervision (CHINS) proceeding. See In re B.M.L., 137 Vt. 396, 398,

406 A.2d 383, 384 (1979), overruled in part on other grounds by In re A.S., 152 Vt. at 492, 567

A.2d at 1142. Many state courts have held that habeas corpus applies to challenge certain

irregularities in juvenile delinquency proceedings. See, e.g., Robinson v. Shock, 667 S.W.2d

956, 958 (Ark. 1984); D.M. v. State, 84 So. 3d 1242, 1244 (Fla. Ct. App. 2012); State ex rel.

J.D.W. v. Harris, 319 S.E.2d 815, 820 (W. Va. 1984).

¶ 24. We are reluctant to hold that habeas corpus, but not PCR, applies when reviewing

delinquency adjudications. Our PCR statute was adopted to streamline procedural requirements

and not to restrict habeas corpus rights. The substantive issue in this case, whether petitioner’s

plea complied with Criminal Procedure Rule 11, is commonly decided in PCR adjudications.

See, e.g., In re Manning, 2016 VT 53, __ Vt. __, __ A.3d __; In re Manosh, 2014 VT 95, 197 Vt.

424, 108 A.3d 212; In re Hemingway, 2014 VT 42, 196 Vt. 384, 97 A.3d 896; In re Stocks, 2014

4
Habeas corpus is a common law writ, and the statutes do not define its entire scope.
See In re A.S., 152 Vt. 487, 490, 567 A.2d 1139, 1141 (1989). Thus, its availability may be
broader than the circumstances covered by the statutes.

13
VT 27, 196 Vt. 160, 94 A.3d 1143. To require the identical issue to be raised and decided in a

habeas corpus proceeding is inconsistent with the reforms Vermont adopted in enacting the PCR

statute.

¶ 25. The third reason is a broader explanation of the second. Although a delinquency

adjudication is not a criminal conviction, a delinquency proceeding is substantively the same as a

criminal proceeding. The juvenile must be charged with having committed a delinquent act,

which “means an act designated a crime under the laws of this State, or of another state if the act

occurred in another state, or under federal law.” 33 V.S.A. § 5102(9). A delinquent child means

“a child who has been adjudicated to have committed a delinquent act.” Id. § 5102(10). With

some exceptions, the Rules of Criminal Procedure govern delinquency proceedings. See

V.R.F.P. 1(a)(1)-(2). These are, of course, the characteristics that form the bases of the decisions

of the U.S. Supreme Court in In re Gault, 387 U.S. 1 (1967), and In re Winship, 397 U.S. 358

(1970), that the due process clause of the Fourteenth Amendment to the U.S. Constitution

guarantees that many of the constitutional protections required in a criminal proceeding also

apply in a delinquency action. In fact, petitioner is raising just such a procedural due process

deficiency, based on the due process holding in Boykin v. Alabama, 395 U.S. 238 (1969), in

bringing his PCR.

¶ 26. These rights are real only if there are adequate remedies to enforce them. This is

the basis for the decision in State v. Doe, 34 P.3d 1110 (Idaho Ct. App. 2001), the decision from

another jurisdiction we find most persuasive. In Doe, the defendant appealed a delinquency

adjudication alleging that he was denied effective assistance of counsel in the delinquency

proceeding. The court agreed that the defendant had to be given an opportunity “just like any

adult would be, to challenge the effectiveness of his counsel.” Id. at 1116. It found, however,

that “any attempt to decide Doe’s ineffective assistance of counsel claim on direct appeal would

be, at best, conjectural.” Id. at 1117. It noted, however, that under Idaho law the remedy of

14
habeas corpus would be available only if the defendant were confined to a juvenile correctional

facility. Id.

¶ 27. In the absence of an alternative, the court turned to the Idaho PCR statute. Idaho

had adopted the Uniform Post Conviction Procedures Act (UPCPA), which applies to any person

“who has been convicted of, or sentenced for, a crime.” Id. at 1118. Despite the language of the

Act, the court held that the UPCPA applied: “After a thorough examination of the law of other

jurisdictions, our statutory law, and our court rules, we hold that the most appropriate and

effective procedural mechanism for a juvenile to bring an ineffective assistance of counsel claim

is the UPCPA.”5

¶ 28. For the above reasons, we answer the first question addressing the availability of a

PCR remedy—whether a person adjudicated a juvenile delinquent may bring a PCR petition to

challenge an admission of guilt based on due process and Criminal Procedure Rule 11—in the

affirmative.6 Therefore, we turn to the second question, whether the availability of PCR relief

was impliedly eliminated by the enactment of 33 V.S.A. § 5113.

¶ 29. We hold that in this instance, the Legislature did not intend to replace relief for

juveniles under 13 V.S.A. § 7131 with relief under 33 V.S.A. § 5113. Instead, it contemplated

that the statutes would be interpreted harmoniously. We are guided in this conclusion by two

primary considerations.

5
Other states have applied the UPCPA to juvenile delinquency proceedings. For
example, in Robinson v. Boley State School for Boys, the court held that the UPCPA applied to
delinquency proceedings “founded on a violation of the criminal law.” 554 P.2d 44, 46 (Okla.
1976). The Court held that petitioner should proceed under the UPCPA and not under habeas
corpus because “the same rights must be afforded juvenile delinquents where committed for a
violation of the penal code [as afforded to adult criminal defendants] in order to comply with the
equal protection clause of the Fourteenth Amendment to the Constitution of the United States.”
Id.
6
The superior court decision states that its analysis of why petitioner could not prevail
under 33 V.S.A. § 5113 would also apply to 13 V.S.A. § 7131. Because the analysis of the
applicability of § 5113 is almost entirely based on the timeliness of the petition, we assume that
is also the ground for the inapplicability of § 7131. We have rejected above the position that the
petition was untimely.
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 ¶ 30. First, it has long been the practice in Vermont that, absent explicit statements

from the Legislature that a novel remedy is intended to be exclusive, we are to assume remedies

are cumulative. “A statute instituting a new remedy for an existing right does not take away an

existing remedy, unless by express words or necessary implication. In such cases, the new

remedy is cumulative merely, and one injured may pursue it or the old one at his election.”

Town of Sharon v. Anahma Realty Corp., 97 Vt. 336, 341, 123 A. 192, 194 (1924) (citation

omitted). Here, no such exclusionary language appears in the applicable statute. 33 V.S.A.

§ 5113(a) states that an order of a trial court “may be set aside in accordance with Rule 60 of the

Vermont Rules of Civil Procedure.” In turn, Civil Procedure Rule 60 states that a party may

obtain relief on the ground of clerical mistakes, inadvertence, excusable neglect, fraud, and

newly discovered evidence. However, it concludes with the following language:

This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or
proceeding, or to set aside a judgment for fraud upon the court.
Writs of coram nobis, coram vobis, audita querela, and bills of
review and bills in the nature of bills of review are abolished as
means of reopening judgments entered under these rules, and the
procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an independent action.

V.R.C.P. 60(b).

¶ 31. Although the rule specifically abolishes several common law writs, it does not

eliminate, abrogate, or in any other way mention habeas corpus or PCR proceedings. As per the

canon expressio unius est exclusion alterius, when a drafter itemizes “members of an associated

group or series,” we may justifiably infer that “items not mentioned were excluded by deliberate

choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 169 (2003) (quotation

omitted). Thus, we conclude that § 7131 petitions are among the “independent action[s]” that

may relieve a party from a judgment, order, or proceeding contemplated in the very text of Civil

Procedure Rule 60.

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 ¶ 32. Further, nothing in the text of Civil Procedure Rule 60(b) suggests that it is an

exclusive remedy; the rule provides relief for instances where a sentence has been rendered

despite clerical mistake, inadvertence, fraud, and the like—but specifically leaves available

alternate “independent action[s]”—and where a change of circumstances has occurred. By its

own terms therefore, the rule does not in any way indicate that the above grounds are the only

means for collaterally challenging a juvenile adjudication.

¶ 33. Similarly, § 5113(b) provides that a 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.” Section 5113(c) states that orders made under this section shall

follow a notice and hearing, although a hearing may be waived by party stipulation, and that all

helpful evidence may be admitted at said hearing. This section appears in the “General

Provisions” of the Juvenile Proceedings Act and applies to all types of juvenile proceedings,

including CHINS proceedings, which are entirely civil. In fact, we note that every decision from

this Court that cites § 5113 or its predecessor 33 V.S.A. § 5532, now repealed, involves a CHINS

proceeding and not a delinquency proceeding. Section 5113 was adopted in light of this history,

and it makes sense that the Legislature would adopt the civil model for setting aside or

modifying court orders. Part of this understanding may be that PCR or habeas corpus relief was

available for delinquency cases.

¶ 34. Second, in arguing that 33 V.S.A. § 5113 supersedes 13 V.S.A. § 7131 with

respect to juveniles, the State is essentially claiming that the PCR statute, as it pertains to

juveniles, was repealed by implication. We note that in construing statutes, we “presume[] that

no repeal by implication is intended” and will find implied repeal “only if (a) the acts are so far

repugnant that they cannot stand together, or (b) are not so repugnant, but the later act covers the

whole subject of the former and plainly shows it was intended as a substitute therefore.” Vt.

Tenants, Inc. v. Vt. Hous. Fin. Agency, 170 Vt. 77, 83, 742 A.2d 745, 749 (1999). Instead, we

17
prefer to “look for a construction that will harmonize the seemingly-inconsistent statutes.” Id.;

accord Hui v. Castaneda, 559 U.S. 799, 810 (2010) (“As we have emphasized, repeals by

implication are not favored and will not be presumed unless the intention of the legislature to

repeal is clear and manifest.” (quotation omitted))

¶ 35. Here, neither prong of the implied repeal test applies. As demonstrated above, by

their own text, the statutes are not exclusive. Moreover, the elements and scope of their afforded

remedies differ. For example, § 7131 places no time constraint on when a collateral challenge

can be brought; § 5331 is confined by the reasonable time requirement of Civil Procedure Rule

60. Most significantly, however, § 5113 does not provide the broad, constitutional guarantee that

an individual may always obtain relief from unlawful governmental restraint. It relies on a civil

rule of procedure and appears primarily intended to replace or supplement the equitable and

statutory remedies available in civil practice. Accordingly, it has no provision by which a

defendant can attack or a court can review an involuntary, unconstitutionally obtained plea or

admission. Thus, our observation above that all cases relying on § 5113 or its predecessor are

civil, either CHINS or termination of parental rights cases, is unsurprising.

¶ 36. Although there is “significant overlap” between § 5113 and § 7131, “that alone is

insufficient to effect an implied repeal.” State v. Foley, 140 Vt. 643, 648, 443 A.2d 452, 454

(1982). It is unlikely that the Legislature intended to replace the modern version of the ancient,

constitutionally enshrined right of habeas corpus with a remedy best suited and exclusively used

for civil cases.

¶ 37. Finally, we address the reliance of the superior court on the Reporter’s Note to the

2009 Amendment to Family Procedure Rule 1(j). The Reporter’s Note is advisory, explaining

the intent behind the rule as it was presented to this Court. The rule provides for a motion to

withdraw an admission of delinquency if made within thirty days. Nothing in this decision is

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inconsistent with that intent, and nothing in the note addresses whether PCR relief is also

available to a juvenile adjudicated a delinquent.

¶ 38. Therefore, in consideration of the history and significance of the Great Writ, the

construction of the applicable statutes, and case law from Vermont and other jurisdictions, we

conclude that 33 V.S.A. § 5113 and Civil Procedure Rule 60 are not the sole avenues for relief

from a juvenile court order. Like other citizens of this state, juveniles have a constitutional right

to petition for relief from unlawful restraint from the government, Vt. Const. ch. II, § 41, a right

that does not evanesce simply due to “the condition of being a boy.” In re Gault, 387 U.S. at 28.

Reversed and remanded for proceedings consistent with this opinion.

FOR THE COURT:

Associate Justice

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