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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-078

                                       JANUARY TERM, 2016

 In re Allen Rheaume                                   }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
                                                       }    Civil Division
                                                       }
                                                       }    DOCKET NO. 576-12-13 Frcv

                                                            Trial Judge: A. Gregory Rainville

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

       Petitioner appeals from the denial of his petition for post-conviction relief (PCR). He
argues that his guilty plea to lewd and lascivious conduct was not made in compliance with
Vermont Rule of Criminal Procedure 11(f). We affirm.

        In 2004, petitioner was charged with exposing and fondling his penis in the presence of
B.H., who was thirteen years old at the time. He pled guilty to lewd and lascivious conduct in
June 2004. In December 2013, petitioner filed a PCR petition alleging that the colloquy was
defective because he never admitted the factual basis of the charge as required by Rule 11(f).
The parties filed cross-motions for summary judgment on this issue, and the court granted
summary judgment to the State.

        Petitioner’s plea colloquy included the following exchange:

                COURT: Now in this case, the State would have to prove . . . that
                you engaged in this open and gross lewdness. In other words, that
                in a public place and in the presence of B.H., you exposed your
                penis and you fondled it. And this was with the intent of engaging
                in a gross and open lewd and lascivious act. In other words, this
                wasn’t done just to urinate or to relieve yourself, this was done to
                appeal to your—the intent of appealing or—to your own sexual
                desires or arousing your own sexual desires. Do you understand
                what the State would have to prove in this case?

                [PETITIONER]: Yes I do.

                        ...

                COURT: All right then. Do you admit that on March 17th of this
                year that you exposed and fondled your penis in the presence of
                B.H.?
               [PETITIONER]: Yes
                          . . .

               COURT: And was . . . this done to somehow create some sexual
               excitement for yourself?

               [PETITIONER]: It was a blackout from drinking.

               COURT: Pardon me?

               [PETITIONER]: A blackout from drinking.

               [Petitioner’s counsel at the time]: He actually doesn’t really
               remember this, and he was intoxicated at the time, Your Honor.

               COURT: Okay. But do you believe what the . . . State’s evidence
               shows? Do you believe it happened that way?

               [PETITIONER]: Yeah, I believe it.

               COURT: And do you think the jury could find that you intended
               this as a lewd act?

               [PETITIONER]: I believe it, yes. Yes, your Honor. I believe it.

        As the PCR court explained, the charge at issue included elements of “open and gross
lewdness and lascivious behavior,” 13 V.S.A. § 2601, as well as general intent. State v.
Maunsell, 170 Vt. 543, 544 (1999). Petitioner appeared to argue that because the change-of-plea
court did not receive a confirmation from him of a specific intent to “create some sexual
excitement,” it failed to meet the standard of Rule 11(f). The court rejected this argument. It
concluded that when the change-of-plea court asked petitioner if he thought that a jury could find
that he intended the act to be lewd, it substantially complied with Rule 11 by inquiring about the
general intent element of the charge. Even assuming arguendo that, by claiming he was blacked
out, petitioner did not admit to committing the acts required for the charge, the court found the
change-of-plea tantamount to an Alford plea, in which “[a]n individual accused of crime may
voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even
if he is unwilling or unable to admit his participation in the acts constituting the crime.” North
Carolina v. Alford, 400 U.S. 25, 37 (1970). The court found nothing in the record to indicate
that petitioner did not make a voluntary and intelligent decision in pleading guilty to lewd and
lascivious conduct. The court thus granted summary judgment to the State. This appeal
followed.

        Petitioner argues that the court erred in finding that there was a factual basis for his guilty
plea. He asserts that the court adequately inquired into the factual basis of a “lewd” act, but
failed to inquire into the factual basis of a “lascivious” act. Petitioner maintains that “lewd” and
“lascivious” are distinct elements of the crime, and the PCR court erroneously found that
inquiring into the intention to commit a lewd act was sufficient to meet the requirements of Rule
11(f). According to petitioner, if the case had gone to trial, the jury would have received an
instruction that “the last essential element, lewd and lascivious, means that [the defendant’s]
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conduct was lustful, indecent, or sexual behavior that offends current morality in Vermont.” He
argues that the jury would have been further instructed that “lewdness” means “gross and wanton
indecency in sexual relations” while lascivious means “tending to excite lust.” Petitioner
contends that the lascivious nature of his acts cannot be inferred as in State v. Gabert, 152 Vt. 83
(1989). Finally, petitioner asserts that the court was wrong to find that he entered into the
equivalent of an Alford plea.

       On review, we apply the same standard as the trial court. “Summary judgment is
appropriate when there is no genuine issue of material fact and the movant is entitled to
judgement as a matter of law.” In re Hemingway, 2014 VT 42, ¶ 7, 97 A.3d 896 (citing
V.R.C.P. 56(a)). We conclude that summary judgment was properly granted to the State here.

        As the trial court recognized, the purpose of a PCR is to “correct fundamental errors in
the judicial process,” and petitioner “has the burden of proving that fundamental errors rendered
his conviction defective.” Id. (quotation omitted). Rule 11(f) states 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.” This rule “is
intended to prevent the entry of false guilty pleas.” In re Stocks, 2014 VT 27, ¶ 12 (quotation
omitted). We have held that the court must question a defendant personally about the factual
basis for the plea. See id. ¶ 15. We have made clear, however, that Rule 11(f) does “not require
a particular formula for determining that there is a factual basis for the plea.” Id. ¶ 15. We
indicated in Stocks that Rule 11(f) will be satisfied if a defendant has been asked if the State
could prove the underlying facts. Id. ¶ 17.

        The change-of-plea court complied with Rule 11(f) here. As set forth above, the change-
of-plea court described the charge, asking if petitioner admitted to exposing and fondling his
penis in B.H.’s presence. Petitioner admitted to having done so, but could not say for certain—
due to a “blackout from drinking”—if he had done so “to somehow create some sexual
excitement for himself.” The change-of-plea court then asked if petitioner believed what the
State’s evidence showed, and whether a jury could find that he “intended this as a lewd act.”
Petitioner responded affirmatively to both questions. The change-of-plea court stated to the
parties that it had also relied on the affidavit of probable cause, encompassed in the “State’s
evidence” referenced above, in determining that petitioner’s plea had a factual basis. That
affidavit describes petitioner’s alleged actions in detail, including B.H.’s description of petitioner
pushing his way into her home, trying to touch her on the neck and breast, and then sitting on the
couch rubbing his exposed penis while he touched her and another minor. The other minor
corroborated B.H.’s statements and she also described vulgar comments that petitioner made to
her, stated that he grabbed her butt, and when she told him no, the minor indicated that petitioner
went to the couch, unzipped his pants, and exposed his private parts to her. All of this
information, taken together, was sufficient to support the change-of-plea court’s finding that
there was a factual basis for petitioner’s plea.

        Contrary to petitioner’s argument, the court had sufficient facts to find that petitioner’s
act was lewd and lascivious. We considered a similar issue in State v. Gabert, 152 Vt. 83 (1989).
In that case, the defendant pled nolo contendere to numerous crimes, including lewd and
lascivious conduct for grabbing a woman in the vaginal area and breast area, and trying to get on
top of her. The defendant argued that, although he understood the charge against him, the court
failed to explain to him that the crime involved acts intentionally done “with a view to excite
unchaste feelings and passions.” Id. at 85 (quotation omitted). We found that, under the
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circumstances, further inquiry was unnecessary. As we explained, “[t]he alleged acts could
hardly give rise to an equivocal motivation,” and “[a]sking the defendant whether he understood
that his actions . . . had a sexual connotation was not necessary.” Id. The same is true here.

        Petitioner contends that Gabert is distinguishable because the defendant there entered a
nolo contendere plea rather than a guilty plea, and because the defendant there did not claim to
have been blacked out during the incident. We find these arguments unpersuasive. Our analysis
in Gabert did not turn on the type of plea being made. See id.; see also V.R.Cr.P. 11(b) (noting
that nolo contendere plea “shall have the same effect as a plea of guilty, except that it shall be
admissible in evidence against the defendant in any criminal or civil proceeding only to the
extent provided in [V.R.Cr.P. 11(e)(5)]”). The fact that petitioner claimed to have been blacked-
out during the incident does not undermine his admission that he believed that the incident
occurred as described in the State’s evidence. [(COURT: Okay. But do you believe what the . . .
State’s evidence shows? Do you believe it happened that way? [PETITIONER]: Yeah, I believe
it.)]. As in Gabert, no further inquiry regarding intent was necessary under the circumstances
here.

        We note, moreover, that after the change-of-plea court had accepted petitioner’s guilty
plea, his then-counsel stated to the court that although petitioner was intoxicated at the time of
the offense and consistently said that he did not remember the events in question, counsel and
petitioner had gone over what the State’s evidence would be, taken depositions, and reviewed the
witness’s statements, and based on this review of the evidence, petitioner was willing to accept
the plea agreement. As we emphasized in Stocks, “[t]he ‘factual basis’ requirement [of Rule 11]
reinforces the goal of ensuring knowing and voluntary pleas,” id. ¶ 13, and the undisputed
evidence shows that petitioner’s plea was knowing and voluntary here.

       Given our conclusion, we need not address the PCR court’s hypothetical concerning an
Alford plea.

       Affirmed.
                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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