Wilkinson v. State of Vermont, No. 490-10-12 Wmcv (Carroll, J., May 6, 2013)

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                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Windham Unit                                                                                           Docket No. 490-10-12Wmcv

                                                                         │
Rebecca Wilkinson                                                        │
Petitioner                                                               │
                                                                         │
v.                                                                       │
                                                                         │
State of Vermont                                                         │
Respondent                                                               │
                                                                         │

              ORDER ON PETITIONER’S MOTION FOR SUMMARY JUDGMENT

                                                         Factual Background

        In this post-conviction relief action, Petitioner filed a motion for summary judgment and
asked the Court to vacate her guilty plea to aggravated domestic assault due to a failure of the
judge to find a sufficient factual basis for the plea.

       The facts are not in dispute as the Court need only examine the transcript of the change of
plea hearing on August 4, 2012. (Petitioner’s Exhibit B). At the hearing, Petitioner was
represented by counsel and plead guilty to aggravated domestic assault and disorderly conduct in
one docket and two counts of simple assault in another.

        During the hearing, Petitioner told the judge that, “I understand everything going on.”
Exhibit B at p. 7. Judge Suntag asked the State to clarify the elements of the offense on which it
relied and the State indicated that it would seek a plea to “attempting to use” a deadly weapon,
which was a knife. Id. at 9. The Court then began a colloquy with Petitioner and told her the
charged alleged she “attempted to use, that is you tried to use a deadly weapon being a knife on
another person who was a family or household member being Lee Godden. Do you understand
that charge?” Id. The Court then addressed the other elements of the charge:

           COURT: Had you lived with him in the past?

           PETITIONER: Recently before that. Yes, Sir.

           COURT: Okay. And on this occasion did you try to stab him with a knife or cut him in
           some way with a knife?
       COUNSEL: She was aiming for the tires of another person to stab the tires when Mr.
       Godden got in her way to stop her, avenger her—when she started swinging the knife at
       him, stabbing him in the arm.

       COURT: Okay. Is that what happened?

       PETITIONER: Yes.

       COURT: So when you were doing that you were trying to at least—cut him.

       PETITIONER: I was not—going to stab him. I was trying to pop the tires. Yes.

       COURT: But he was in the way—

       PETITIONER: And he had tried to stop me and it hit the back of his arm.

       COURT: When he tried to stop you and got in your way did you see him there as you
       were continuing to move the knife around?

       PETITIONER: Yes, sir.

       COURT: So when you were continuing to do that did you know you were going to—I
       mean were you—

       PETITIONER: I didn’t purposely try to hurt him, no. But—

       COUNSEL: No. He’s not saying if you had—that you intended to stab him. But you
       knew he was in front of you, you knew he was trying to stop you, and you were swinging
       the knife as you were trying to get to the tires. Correct?

       PETITIONER: No.

Id. at 10–11. The Court, Petitioner and counsel thereafter continued to discuss what occurred
during the alleged incident, as the Court was having trouble reconciling Petitioner’s and her
attorney’s statements on the facts. Finally, the following occurred:

       COUNSEL: She was not going to let go of the knife…and she wasn’t going to stop until
       she got to those tires. He wasn’t going to let her because they were tires of a close friend.

       COURT: Uh-huh.

       COUNSEL: And in that struggle she cut him. She acknowledged she cut him. He
       suffered an injury. And she was doing that while attempting to commit a crime being—
       (indiscernible) mischief.



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       COURT: What that sounds to me—the element that’s made out is a use of a deadly
       weapon on a family or household member as opposed to attempting to use.

       COUNSEL: That would be true.

Id. at 13. Based upon this discussion, the State agreed to rely on the element of aggravated
assault which allows a conviction when a person uses a deadly weapon on a family or household
member, rather than on an attempt to use a deadly weapon on a family or household member.
The Court then stated that, “Because she did in fact wind up using the knife on him resulting in
him being cut. And he was a family household member at the time and it was her fault. Is that
correct?” Id. at 14. The Court then asked Petitioner if this was accurate and she replied, “Yes,
your honor.” When asked whether she was sure, she responded, “Yes.” Id. The Court then
explained to Petitioner that, “This is serious” and Petitioner acknowledged, “…yes, I know this
is very serious.” The Petitioner admitted to being “at fault” and indicated that she was aware of
the potential penalty for aggravated domestic assault. Id. at 14–15. After a further colloquy,
Petitioner plead guilty to using a deadly weapon on a family or household member.” Id. at 22.
After a plea to all charges, the Court stated, “We’ll find all pleas are knowing and voluntary. All
charges are factually supported…” Id. at 23.

                                        Procedural History

       Petitioner filed a motion for summary judgment on February 14, 2013. The State opposed
the motion for summary judgment on April 2, 2013.

                                        Standard of Review

        The Court grants summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the
non-moving party. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635. Nevertheless, the non-moving
party cannot rely solely on the pleadings to rebut credible evidence. Boulton v. CLD Consulting
Eng’rs, Inc., 2003 VT 72, ¶ 5, 175 Vt. 413.

                                             Discussion

        The issue in this case is whether the Court established the factual basis for Petitioner’s
guilty plea. According to V.R.Cr.P. 11(f), a court must determine the accuracy of a guilty plea.
“Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon
such a plea without making such inquiry as shall satisfy it that there is a factual basis for the
plea.” “[F]ailure to question defendant as to the factual basis with respect to the aggravated
domestic assault charge is a substantial-in fact, total-violation of Rule 11(f).” State v. Yates, 169
Vt. 20, 24 (1999). For a plea to be valid the defendant must admit all of the relevant underlying
facts. See id. at 24, 26. Failure to conform to Rule 11(f) requires the Court to set aside the guilty
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plea. See id. at 27; see also In re Medina, No. 2006-226, 2007 WL 5315455, at *1–3 (setting
aside a guilty plea of aggravated domestic assault for the court’s failure to establish the
underlying facts).

        Among other things, aggravated domestic assault occurs where a person “uses, attempts
to use or is armed with a deadly weapon and threatens to use the deadly weapon on a family or
household member…” 13 V.S.A. § 1043(a)(2). Household members include people who “for any
period of time, are living or have lived together.” 15 V.S.A. § 1101(2); see 13 V.S.A. § 1041
(directing the court to 15 V.S.A. § 1101 for the definition of household member in a domestic
assault). A deadly weapon is “any firearm, or other weapon, device, instrument… which in the
manner it is used or is intended to be used is known to be capable of producing death or serious
bodily injury.” 13 V.S.A. § 1021(3). For the purpose of aggravated domestic assault, a knife is a
deadly weapon. See State v. Prior, 174 Vt. 49, at 52–53 (2002).

        In this case, the record indicates the Court addressed the underlying facts of the
aggravated domestic assault. Petitioner admitted she used a knife to cut a former boyfriend.
Petitioner admitted that she had lived with the victim in the past, satisfying the household
member requirement. See 15 V.S.A. § 1101(2). A knife is a deadly weapon in an aggravated
assault prosecution. See Prior, 174 Vt. at 52–53. Petitioner admitted fault. All of the statutory
requirements are present and the Court finds the plea colloquy satisfied the requirements of
V.R.Cr.P. 11. The Court also addressed the underlying circumstances of the crime with
Petitioner at length. The Court must deny Petitioner’s motion to for summary judgment because
she is not entitled to judgment as a matter of law. See V.R.C.P. 56(a).1

        After reviewing the file, the Court finds the State is entitled to summary judgment. See id.
There are no disputed material facts and the State is entitled to judgment as matter of law. The
State, however, has not moved for summary judgment. Where the Court determines there are no
disputed material facts and a party is entitled to judgment as a matter of law, it may enter
summary judgment for a nonmovant “[a]fter giving notice and a reasonable time to respond.”
See id. 56(g). The Court now gives notice it intends to enter summary judgment for the State.
The parties have thirty days to respond to the Court’s order and raise any issues the Court may
have overlooked.

                                                    ORDER

        The Court denies Petitioner’s motion for summary judgment. Pursuant to V.R.C.P. 56(g),
the Court will grant summary judgment for the State unless the parties respond within thirty
days and convince the Court not to enter summary judgment.
1
 Petitioner’s Amended Petition, filed on February 14, 2013, does not help her cause. Petitioner plead to 13 V.S.A. §
1043(a)(2), not 13 V.S.A. § 1043(a)(1). The Court will not consider whether Petitioner threatened the victim, only
whether she used the deadly weapon.

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Dated:



         Karen R. Carroll
         Superior Court Judge




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