Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-418

                                          JULY TERM, 2016

 Michael Francis Favreau                               }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windsor Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito, Commissioner,                         }    DOCKET NO. 498-8-13 Wrcv
 Department of Corrections

                                                            Trial Judge: Theresa S. DiMauro

                          In the above-entitled cause, the Clerk will enter:

       Plaintiff, an inmate committed to the custody of the Commissioner of the Department of
Corrections, appeals from a trial court judgment upholding a disciplinary rule violation. Plaintiff
contends that his decisions to waive a disciplinary hearing and admit the violation were
involuntary because he was not informed that the violation would alter his custodial status from
minimum confinement to close custody. We reverse.

        The material facts are undisputed. In May 2013, plaintiff, an inmate at Southern State
Correctional Facility, was charged with several disciplinary violations. Plaintiff discussed his
options concerning the resolution of the charges with a prison hearing officer. The violation,
assault on a hearing officer, arose from an incident in which plaintiff threw a t-shirt to an officer
instead of handing it to him. The maximum sanction for the offense was thirty days in
disciplinary segregation. After consulting with the hearing officer, plaintiff signed a waiver
dispensing with his right to a hearing, admitting the violation, and accepting a sanction of
fourteen days of segregation. He also admitted the violation on the record.

        As a result of the violation, plaintiff accumulated sufficient “points” under the DOC’s
quantitative point-based system to alter his general custodial status, which can range from
minimum, to medium, to close custody. The additional points changed plaintiff’s status from
minimum to close custody. Thus, following his fourteen days in disciplinary segregation,
plaintiff spent approximately 90 days in close custody. It is undisputed that a prisoner in “close
custody” loses or has restricted many rights and privileges that are available to a prisoner in
minimum custody, although the extent of the restrictions is not quite as great as for a prisoner in
disciplinary segregation. Both are “segregation” as defined in 28 V.S.A. § 701a as “a form of
separation from the general population which may or may not include placement in a single
occupancy cell and which is used for disciplinary, administrative, or other reasons.”1 The


         Section 701a is titled “Segregation of inmates with a serious functional impairment.”
         1

Subsection (b) which contains the definition in the text is applicable “[f]or purposes of this title.”
hearing officer did not discuss with plaintiff the effect of the waiver and admission on plaintiff’s
classification, and testified that he did not know plaintiff’s point status prior to the hearing.
Plaintiff was not independently aware of how the point-based system would work in response to
his disciplinary violation. Plaintiff testified that he would not have waived his right to a hearing
and admitted the violation if he had known that it would result in his close-custody confinement.

        Plaintiff filed a complaint under V.R.C.P. 75, alleging that his admission was involuntary
due to the failure to disclose that it would alter his custodial status. Following a hearing, the
court issued a written ruling, rejecting the claim. Analogizing the situation to a Rule 11 plea
hearing, the court concluded that the change in plaintiff’s custodial status was a “collateral
consequence” of the violation, and that prior disclosure was therefore not required. As the trial
court noted, we have “held that only direct, not collateral, consequences must be included in the
Rule 11 colloquy.” State v. Pilette, 160 Vt. 509, 512 (1993) (holding that “the potential
enhancement of the status or sentence of a future conviction” as a result of guilty plea is
collateral consideration); see also In re Moulton, 158 Vt. 580, 583 (1992) (recognizing that
availability of parole before expiration of sentence is collateral consequence).

         Although we have not closely examined the distinguishing characteristics between a
direct and a collateral consequence of a plea, courts generally agree that “[a] direct consequence
is one which has a definite, immediate and largely automatic effect on defendant’s punishment.”
People v. Ford, 657 N.E.2d 265, 267 (N.Y. 1995) overruled on other grounds by People v.
Peque, 3 N.E.3d 617 (N.Y. 2013); accord Parry v. Rosemeyer, 64 F.3d 110, 114 (3d Cir. 1995)
(observing that direct consequence “is one that has a definite, immediate and largely automatic
effect on the range of the defendant’s punishment” (quotation omitted)); Alanis v. State, 583
N.W.2d 573, 578 (Minn. 1998) (“[D]irect consequences are those which flow definitely,
immediately, and automatically from the guilty plea.”). A second common consideration is
whether the consequence is imposed by the court itself or an independent agency. See State v.
Mutwale, 2013 VT 61, ¶ 12, 194 Vt. 258 (noting that, “in the context of plea hearings, ‘direct
consequences’ include only those which the court itself can impose”); accord Ford, 657 N.E.2d
at 268 (failure to inform defendant of consequences resulting from plea will not warrant vacating
plea where they “result from the actions taken by agencies the court does not control”); Beagen
v. State, 705 A.2d 173, 175 (R.I. 1998) (“A consequence is deemed collateral, rather than direct,
if its imposition is controlled by an agency which operates beyond the direct authority of the trial
judge.” (quotation omitted)).

         Assessed in light of these standards, we conclude that plaintiff’s reassignment of
classification status and placement in close custody was a sufficiently definite, immediate, and
automatic result of his plea to the disciplinary violation to constitute a direct consequence, and
that the failure to inform him of this consequence rendered the plea involuntary. Although the
parties here expend considerable effort debating the similarities and distinctions between
disciplinary segregation and close custody, there is no dispute that plaintiff’s reassignment to
close custody for 90 days flowed automatically and immediately from his plea, was mandated by
the same agency that imposed the disciplinary segregation, and plainly affected the conditions
under which he was incarcerated. He agreed to receive 14 days of segregation as a result of his
admission but instead received 104 days. In these circumstances, we conclude that disclosure
prior to plaintiff’s admission was required. Although the State makes much of the fact that the
hearing officer here did not “have the information” regarding plaintiff’s points at the time of the

Thus, it is applicable to plaintiff although there is no evidence that he has a serious functional
impairment.
                                                 2
admission, the officer testified, in fact, only that he had “no reason to seek that information”
prior to the hearing.

        Accordingly, we conclude that the judgment must be reversed, and the matter remanded
to afford plaintiff the opportunity to contest the violation.2

       Reversed and remanded.

                                              BY THE COURT:


                                              _______________________________________
                                              John A. Dooley, Associate Justice

                                              _______________________________________
                                              Marilyn S. Skoglund, Associate Justice

                                              _______________________________________
                                              Harold E. Eaton, Jr., Associate Justice




       2
           We note that the State has not claimed that the matter is moot because plaintiff has
already completed the fourteen-day disciplinary segregation and resulting ninety-day close-
custody period. We have no information to evaluate whether the disciplinary violation on
plaintiff’s prison record would be sufficient to satisfy the exception for “negative collateral
consequences.” In re P.S., 167 Vt. 63, 67 (1997).
                                               3
