In Re Combs

aermont Superior Court
Filed 04/01/25
Franklin nit

VERMONT SUPERIOR COURT CIVIL DIVISION
Franklin Unit Case No. 24-CV-00954
17 Church Street
St. Albans VT 05478
802-524-7993
.vermontjudiciary.org

In Re: Jason Combs

ORDER ON PETITIONER'S MOTION FOR SUMMARY JUDGMENT
In this post-conviction relief ("PCR'') action, Petitioner Jason Combs seeks to vacate his
guilty plea to driving under the influence, fourth offense ("DUI #4"), in docket number 23-CR-
4586. Before the Court now is Petitioner's motion for summary judgment.

Relevant Background

Petitioner filed an amended PCR petition in the instant docket on November 27, 2024. See
Amended PCR Petition (filed Nov. 27, 2024). In it, he makes two substantive claims. First,
Petitioner contends that his guilty plea to DUI #4 entered in docket 23-CR-4586 on August 11,
2023 ("2023 Case"), must be vacated because the predicate convictions for two of the prior DUIs
did not comply with V.R.Cr.P. 11(f). More specifically, he argues that during the plea colloquies
on July 13, 1998 in docket number 765-7-98 Frer ('July 1998 Colloquy"), and September 15, 1998
in docket number 903-8-98 Frer ("September 1998 Colloquy'') the Court failed to elicit from him
a factual basis for his guilty plea. See Amended PCR Petition at 1; Mot. Summ. J. (filed Dec. 6,

2024) at 1-4.

Petitioner also complains of ineffective assistance of counsel based on his attorney's alleged
failure to preserve Petitionet's right to contest the validity of the two 1998 DUI convictions on the
record at the change of plea hearing in the 2023 Case. See Amended PCR Petition at 1-2; Mot.
Summ. J., at 4-5.

Petitioner now moves for summary judgment on all claims. See generally Mot. Summ. J.
(filed Dec. 6, 2024). Although the State purports to oppose the motion, its response failed to
contest any material facts or provide any legal argument. See Response to Motion for Summary
Judgement (filed Jan. 2, 2025); Response to Statement of Uncontested Material Facts (filed Jan. 2,
2025).

Relevant Undisputed Facts

As a preliminary point, there are no disputed facts in this case. The State notes that
Petitioner failed to include in his statement of undisputed facts that in both the July and

Ordet Page 1 of 8
24-CV-00954 In Re: Jason Combs
7ermont Superior Court
Filed 04/01/25
Franklin - nit

September 1998 Colloquies, in addition to referencing the information, the Court referenced "the
charging affidavit in discussing a factual basis."" Response to Statement of Uncontested Material
Facts at §[] 2, 4. The State makes no legal argument, so it is impossible to know why the State
believed this constitutes a material factual dispute preventing judgment at this stage. It
fundamentally does not do so. In fact, had the State analyzed the law on this issue, it would be
apparent that the "dispute" raised by the State is not material at all. In addition, the Motion itself
quotes in the body of the motion the exact language the State has raised, so it is not disputed,
either.

Likewise, on the ineffective assistance of counsel claim, the question of whether having
"enough time to consult with [an] attorney" and being "satisfied with their representation"
constitutes ineffective counsel is not a dispute offact. Id., at q 7. Critically, it is not a legal
argument either as it does not address the controlling standard for ineffective assistance of counsel
in Vermont. In other words, both purported factual disputes raised by the State are immaterial,
not actually disputed or both.

The facts of this case are rather straightforward. On July 13, 1998, Petitioner pleaded guilty
to DUI #1 in docket number 765-7-98 Frer. Ex 1. On September 15, 1998, Petitioner pleaded
guilty to DUI #2 in docket number 903-8-98 Frer. Ex. 2. Petitioner was subsequently convicted
of a third, unchallenged DUI #3 charge.

On May 12, 2023, Petitioner was arraigned on, among other charges, DUI #4 in docket
number 23-CR-4586 Frer. Ex. 3 at 1. That DUI charge was enhanced to a felony-level charge
based, in part, upon the two previous 1998 DUI convictions. Id On August 4, 2023, Petitioner
pleaded guilty to DUI #4, in docket number 23-CR-4586 Frcer, and was sentenced on that charge
to 6-10 years to-serve. Ex. 4. During the change-of-plea and sentencing hearing in docket
number 23-CR-4586 Frcr, Petitioner's attorney did not preserve on the record his right to
challenge the validity of the 1998 convictions the State used to enhance the driving under the
influence charge from a misdemeanor to a felony. Ex. 5; Ex. 3 at Count 1.

Analvsis

A PCR proceeding provides "a limited remedy, intended to correct fundamental errors in
the judicial process." In re Kirby, 2012 VT 72,19, 192 Vt. 640 (mem.). A petitioner has the burden
of proving "by a preponderance of the evidence, that fundamental errors rendered his conviction
defective." In re Combs, 2011 VT 75, q 9, 190 Vt. 559 (mem.) (quotation omitted).

A. Rule 11() Claims

Petitioner's argument here is that the July 1998 Colloquy and the September 1998 Colloquy
violated Criminal Rule 116) requirement that "[n]otwithstanding the acceptance of a plea of guilty,
the court should not enter a judgment upon such plea without making such inquiry as shall satisfy
it that there is a factual basis for the plea." As such, Petitioner argues, these "conviction should

Order Page 2 of 8
24-CV-00954 In Re: Jason Combs
Termont Superior Court
Filed 04/01/25
Frankhn Unit

not have been used against Petitioner Combs to enhance the 2023 DUI charge, conviction and
sentence to a felony level crime." Mot. Summ. J., at 3 and 4.

Over twenty years ago, the Vermont Supreme Court held in State Boskind that a challenge
to a predicate conviction used to enhance a sentence "must take place in superior court pursuant
J
to Vermont's [PCR] statute." 174 Vt. 184, 185 (2002); In re Manning, 2016 VT 53, 20, 202 Vt.
111. It has also now been settled for some time in Vermont that "a defendant who knowingly and
voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings." I" re
Torres, 2004 VT 66, q 9, 177 Vt. 507 (mem.) (quotation omitted). In other words, defendants must
challenge predicate convictions in PCR proceedings, but if a defendant pleads guilty to an
enhanced offense they waive their right to collaterally challenge the predicate convictions at a later
time. In re Torres, 2004 VT 66, ¥ 9.

The Vermont Supreme Court ultimately resolved this tension in In re Benoit. 2020 VT 58, J
18, 212 Vt. 507. There, the court held that defendants can preserve a PCR challenge to a predicate
conviction while pleading guilty to an enhanced charge "by stating on the record at the change-of-
plea hearing an intent to challenge one or more of the convictions through a PCR petition,
specifically identifying the convictions they intend to challenge, and stating the bases for the
challenges." 2020 VT 58, q 18, 212 Vt. 507.

Here, it is undisputed that Petitioner did not preserve, on the record, during the colloquy in
the 2023 Case his right to challenge the 1998 predicate convictions. See SUMF at q 7. Nor did
Petitioner clearly indicate while pleading guilty that he intended "to pursue a specified PCR
challenge." In re Benoit, 2020 VT 58, 4 19. Petitioner in fact concedes this much because his
ineffective counsel claim is based precisely on the fact that it was his prior attorneys' failure to
preserve the right to challenge the predicate convictions that rendered their performance below
the required standard in Vermont. See Mot. Summ. J., at 5 ('Petitioner Combs contends that his
criminal defense attorneys' performance fell below the standard of care required of Vermont
criminal defense attorneys when they failed to state on the record at the change of plea hearing
held in 23-CR-4586 on August 4, 2023, that Mr. Combs was preserving his right to contest the
validity of the 1998 convictions.").

An identical situation was recently addressed by the Vermont Supreme Court in In re Velde,
2024 VT 80. There, the Court stated the following:

The practical concern raised by the concurring opinion in Gay and the later decision
in Benoit relate to a factual predicate that is not present in the instant case. They do
not undermine the established law that existed at the time of petitioner's March
2018 plea. At that time, it was "well settled that a defendant who knowingly and
voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior
proceedings." Torres, 2004 VT 66,19, 177 Vt. 507, 861 A.2d 1055 (quotation
omitted). There is nothing in the summary-judgment record to undermine waiver,
J
or to show, in the language of Benoit, 2020 VT 58, 22, 212 Vt. 507, 237 A.3d 1243,
that petitioner made an attempt to preserve his ability to challenge a predicate
Order Page 3 of 8
24-CV-00954 In Re: Jason Combs
7ermont Superior Court
Filed 04/01/25
Franklin mit

offense at the time of his plea, or that he pled guilty "with an understanding that he
could pursue his collateral challenges to enhancing convictions in a PCR
proceeding, and, importantly, a plan to do so." Id To the contrary, petitioner
expressly admitted that he had been convicted of the three felonies identified by the
trial court and that he understood that he was giving up his ability to put the State to
its proof by pleading guilty. ...
Like the colloquies in Torres and Gay, the 2018 plea colloquy here shows that
petitioner knowingly and voluntarily pled guilty and thereby "clearly waived any
challenge to the prior convictions upon which the habitual offender enhancement
was based." Gay, 2019 VT 67, 9 19, 211 Vt. 122, 220 A.3d 769 (Robinson, J.,
concutring); see also Torres, 2004 VT 66, {ff 10, 11, 177 Vt. 507, 861 A.2d 1055.

Id., 41 22-23 (footnote omitted). The same is true here. Petitioner waived all non-jurisdictional
defects in the prior proceedings by knowingly and voluntarily pleading guilty to the DUI #4
charge in docket number 23-CR-4586.

As a result, Petitioner's Rule 11(f) arguments fail. Regardless of whether the underlying
pleas were defective, Petitioner's subsequent voluntary and knowing plea to the DUI #4 in 2023
destroyed his ability to challenge those convictions in a PCR petition. The motion for summary
judgment is denied as it relates to these claims.

Although the State did not move for summary judgment, the Court finds that there is no
set of facts upon which Petitioner could prevail on his Rule 116) claims. As a result, they are
dismissed. If Petitioner objects to this dismissal and wishes to make further argument regarding
this dismissal, he may file his legal arguments and objection within fourteen days.

B. Ineffective Assistance of Counsel Claim

Petitioner also contends that his previous attorneys "failed to state on the record at the
change of plea hearing held in docket number 23-CR-4586 on August 4, 2023, that [Petitioner]
was preserving his right to contest the validity of the 1998 convictions[,]'" and as such, that their
"performance [ ] flell] below the standard of care required of Vermont criminal defense attorney."
Mot. Summ. J. at 5. The amended petition also argues this claim based on the attorneys' failure to
investigate the predicate convictions. See Amended Petition at 1-2.

Vermont utilizes a two-prong standard for evaluating ineffective assistance of counsel
claims, "a test that is essentially equivalent under the United States and Vermont constitutions." In
re Combs, 2011 VT 75,19, 190 Vt. 559. The first prong requires a petitioner to "show by a

preponderance of the evidence that defense counsel's performance fell below an objective
standard of reasonableness informed by prevailing professional norms." Id. (quotation omitted).
The Court must remove "the distorting effects of hindsight" in conducting this analysis and
J
evaluate the matter "from counsel's perspective at the time." Id 10 (quotation omitted).

Ordet Page 4 of 8
24-CV-00954 In Re: Jason Combs
"ermont Superior Court
Filed 04/01/25
Frankhn Unit

"Because '[t]rial counsel ate permitted a great deal of discretion in decisions regarding trial
strategy," In re Dunbar, 162 Vt. 209, 212 (1994), "expert testimony is generally required to show
that an attorney's conduct fell below the standard of accepted practice in Vermont." In re
J
FitzGerald, 2020 VT 14, ¥ 31, 212 Vt. 135 (quoting In re Burke, 2019 VT 28, 19, 210 Vt. 157).
Under the first prong of the test, defense counsel is "strongly presumed to have rendered adequate
assistance and to have made all significant decisions in the exercise of reasonable professional
judgment." Strickland v. Washington, 466 U.S. 668, 690 (1984).

If a petitioner can meet the first prong, then the second prong is to show that petitioner
suffered actual prejudice, "by demonstrating a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." In re Combs, 2011
VT 75, q 9 (quotation omitted). "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." In re Cohen, 161 Vt. 432, 435 (1994) (quotation omitted). It cannot be
an abstract possibility. In re Burke, 2019 VT 28, q 18 (quotation omitted). Both prongs of
ineffective assistance of counsel claims are "mixed questions] of law and fact." In re Sharrow, 2017
J
VT 69, 11, 205 Vt. 309.
Petitioner presented expert testimony from Attorney Jason Sawyer, an experienced lawyer
J
in the defense of DUI cases. Affidavit of Attorney Sawyer, 2 (filed Dec. 16, 2024). He has
defended hundreds of DUI cases over the coutse of his career. Id Upon his review of this case,
Attorney Sawyer concluded the following:

Effective and competent counsel would have investigated the validity of
[Petitioner's] prior DUI convictions, and would have informed and demonstrated to
the State of Vermont the defects in the plea colloquies and thus likely infirm prior
convictions as part of the plea bargaining process or, at minimum, preserve those
challenges for subsequent PCR review at the August 11, 2023 change of plea
ptoceeding pursuant to the dictates of In re Benoit, 2020 VT 58, 18.
{
Had [Petitioner's] counsel reviewed and analyzed the transcripts of the Rule 11
colloquies in the two 1998 change of plea hearings (items b and c in paragraph 4,
above) and then negotiated with the State of Vermont taking into account the likely
defective convictions, or, at minimum, preserved [Petitioner's] opportunity to
challenge them via the post-conviction relief statutes, I believe the outcome of the
2023 case would have been far mote favorable to [Petitioner], as the maximum
sentence he could have served on Count 1 for which he received sentence of 6-10
-

years to serve would have been two (2) years, i.e. the maximum sentence for DUI,
-

Second offense.

Id, at I] 5-6.

Order Page 5 of 8
24-CV-00954 In Re: Jason Combs
fermont Superior Court
Filed 04/01/25
Frankhln Unit

1. Failure to Investigate

Petitioner's first claims appears to be that his counsel's performance leading up to the
change-of-plea hearing in docket number 23-CR-4586 was deficient, because counsel failed to
investigate the predicate offenses that formed the basis of the DUI #4 allegation. This is
supported by Attorney Sawyer's affidavit. That is not enough, however.

Neither Petitioner nor his expert have cited to any legal authority for the proposition that a
defense attorney is required to investigate all potential avenues of post-conviction relief for prior
convictions in any criminal case that rests on a predicate offense. To be sure, "convictions are
presumptively valid[.]" State v. Setien, 173 Vt. 576, 580 (2002); see also State v. Tatro, 161 Vt. 182,
186 (1993) ("In this context, no presumption arises that the earlier convictions are invalid if they
were never challenged on direct appeal as having been obtained through uninformed guilty
pleas."').

It appears that virtually every court that has considered the question of defense counsel's
obligation to investigate predicate convictions has determined that defense counsel has no such
obligation. United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (noting that even if counsel did
not thoroughly investigate defendant's prior convictions, he did not render ineffective assistance
because the prior convictions are presumed valid); Enis v. Walker, 2001 WL 409530, at *17
(S.D.N.Y. 2001) ('A failure to investigate and challenge prior convictions does not, by itself,
constitute ineffective assistance of counsel."); Cook v. Lynaugh, 821 F.2d 1072, 1078 (th Cir.1987)
(noting that the focus of the court's inquiry is "simply whether the facts of [the] case... would
have alerted a reasonably competent attorney to the need to investigate" the prior conviction);
Cabello v. State, 524 So. 2d 313, 318 (Miss. 1988) ("In Cook v. Lynaugh, 821 F.2d 1072, 1078 (th Cir.
1987), the Fifth Circuit noted that the Constitution 'imposes no general, per se duty on counsel to
investigate whether a defendant's prior convictions were counseled."'); Pendleton v. Scully, 664 FP.
Supp. 100 (S.D.N.Y. 1987) (finding it was not unreasonable for counsel to fail to contest a prior
guilty plea when unaware of any grounds to contest it, and the defendant did not allege that the
ptior conviction was inaccurate or obtained unconstitutionally); Barker v. Barrow, 290 Ga. 711 (Ga.
2012) (counsel's failure to investigate the validity of prior guilty pleas by reviewing transcripts did
not constitute deficient performance and counsel was held to have no duty to review transcripts of
ptior plea proceedings unless alerted to possible defects by the defendant). Also c.f. Brown v. United
States, 2023 WL 4551682, at *6 (E.D.N.Y. 2023) (holding that not objecting to an FBI-generated
criminal history report of the petitioner's criminal record was entirely reasonable, since nothing in
the record raised questions about the accuracy of the report, and the attorney was not alerted
about anything that should have prompted additional investigation).

The crux of these cases is that absent a criminal defendant raising an issue with their
attorney regarding their prior convictions, the attorney has no obligation to independently
investigate each predicate conviction. While the Vermont Supreme Court has not decided this
issue, this Court is loath to go against seemingly every other Court that has considered the issue,
despite Attorney Sawyer's uncontested, though legally unsupported opinion.

Order Page 6 of 8
24-CV-00954 In Re: Jason Combs
"ermont Superior Court
Filed 04/01/25
Frankhn Unit

There is no evidence in the record here that Petitioner gave his previous attorneys any
reason to doubt, or indicated in any way that they should doubt, the validity of his predicate
convictions. Had he, that may have invoked counsel's duty to investigate. See Strickland, 466 U.S.
at 691 ("The reasonableness of counsel's actions may be determined or substantially influenced by
the defendant's own statements or actions .... [W]hat investigation decisions are reasonable
depends critically on such information."). This is consistent with the Fourth Circuit's decisions on
these issues, which clearly hinge on whether a client has raised an issue with counsel and the
lawyer's subsequent lack of investigation. See e.g., Toller v. United States, 563 F.2d 1117, 1120 (4th
Cir. 1977) (finding ineffective assistance where the client raised the exact legal issue that made his
prior conviction defective and counsel did not investigate and gave legally incorrect advice); United
States v. Russel , 221 F.3d 615, 620-21 (4th Cir. 2000) (holding in the impeachment context that it
was objectively unreasonable for an attorney to rely on the prosecutors representation that prior
convictions were valid when the client questioned their validity).

As a result, the Court must deny the request for summary judgment on the first part of the
ineffective assistance of counsel claim. Petitioner may show at trial that he raised any alleged
deficiencies in his prior convictions with his 2023 criminal defense attorney and he failed to
properly investigate.

2. Failure to Preserve Ga PCR Challenge

Petitioner's next claim is that his previous counsel's performance was ineffective because
his attorney did not preserve his ability to challenge a predicate offense at the time of his plea.
The affidavit of Attorney Sawyer therefore concludes that "effective and competent counsel
would have ... at minimum, preserve[d] ... challenges for subsequent PCR review at the August
11, 2023 change of plea proceeding pursuant to the dictates of In re: Benoit, 2020 VT 58, { 18."
Affidavit of Attorney Sawyer at q 5.

The Court could not find any case law on this issue, and neither party cited to any cases
related to the preservation issue. The flaw in this argument is that Benort requires a defendant to
"identify[] the convictions they intend to challenge, and stat[e] the bases for the challenges" on the
record at the subsequent change of plea hearing. In re Benoit, 2020 VT 58, § 18. If counsel has not
investigated, then they cannot make the specific preservation required by Benoit.

While the exact level of specificity is not detailed in Bevozt, the court's reasoning is
instructive. First, the court noted that the rule it articulated "promotes finality by effectively
compelling a defendant to identify and assert challenges to prior convictions before pleading guilty
J
to an enhanced charge." Id at 20. The court went on to note that the State and defendant can
then negotiate the enhanced charge based on the potential flaws identified by Defendant. Id. It
also noted that neither the State nor the court are required to "to agree to a defendant pleading
guilty and preserving a PCR challenge to a predicate conviction." Id. "But if the State does agree
to such a plea, and the court approves it, the subsequent PCR petition will not take anyone by
surprise." Id. The policy reasoning of the Supreme Court is clear and it requires an attorney to lay
out the basis for a future PCR challenge clearly enough to put all parties and the Court on notice.
Order Page 7 of 8
24-CV-00954 In Re: Jason Combs
7ermont Superior Court
Filed 04/01/25
Frankhn Unit

The Court has just ruled that Petitioner's counsel in the 2023 case did not have an
obligation to investigate whether the underlying convictions were defective unless Petitioner
flagged the issue. That same lawyer, however, cannot preserve the issue without having done
some investigation. This results in the same decision here. Under Benoit, counsel cannot make a
blanket or blind preservation of all PCR challenges at a change of plea that involved predicate
offenses. Therefore counsel's performance cannot fall below an "objective standard of
reasonableness informed by prevailing professional norms," In re Combs, 2011 VT 75, 19, by not
preserving a PCR challenge he had no duty to investigate.

The Court notes that if Petitioner can prove that he asked his counsel to investigate his
prior convictions, he still must satisfy prong two of the ineffective assistance of counsel claim. On
prong two, Petitioner must show "that counsel's performance prejudiced the defense by
demonstrating a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." In re Combs, 2011 VT 75,19. This is an especially
uphill battle on the failure to preserve claim, because a valid preservation of a right to challenge an
underlying conviction requires the agreement of the State and the approval of the court in the
2023 matter. Petitioner has not yet established that.

ORDER
Based on the foregoing, Petitioner's motion is denied. The claims asking the Court to order
post-conviction relief are dismissed for the reasons stated above. Petitioner has fourteen days to
file a substantive objection to that dismissal.

The Court will hold a status conference to determine how the parties want to proceed on
the outstanding issues which can be summarized as follows:

1. Did Petitioner Combs ask his attorney to investigate his predicate convictions such that it
would have created a duty for that attorney?
2. If so, can he establish the requisite prejudice for either of his ineffective assistance claims?

Electronically signed on March 28, 2025, pursuant to V.R.E.F. 9(d).

Navah C. Spero
Superior Court Judge

Order Page 8 of 8
24-CV-00954 In Re: Jason Combs