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@state.vt.us or by mail at: Vermont Supreme Court, 109
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                                         2015 VT 107

                                         No. 2014-246

In re Derrick Brown                                          Supreme Court

                                                             On Appeal from
                                                             Superior Court, Addison Unit,
                                                             Civil Division

                                                             April Term, 2015


Robert A. Mello, J.

Matthew Valerio, Defender General, and Dawn Matthews, Prisoners’ Rights Office, Montpelier,
 for Petitioner-Appellant.

Dennis M. Wygmans, Addison County Deputy State’s Attorney, Middlebury, for
 Respondent-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          ¶ 1.   DOOLEY, J. In this post-conviction-relief (PCR) proceeding, petitioner Derrick

Brown appeals the decision of the Civil Division of the Addison Superior Court granting

summary judgment to the State based on its determination that the criminal court complied with

Vermont Rule of Criminal Procedure 11(e)(4) in deviating from the original plea agreement. We

affirm.

          ¶ 2.   The following facts are undisputed. In 2003, petitioner pleaded guilty to one

count of aggravated sexual assault of a minor in violation of 13 V.S.A. §§ 3252, 3253 and one

count of lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602. Petitioner

agreed to sentences of three-to-ten years, all suspended, with one year to serve on the sexual-

assault charge, and two-to-five years, all suspended, with one year to serve on the lewd-and-
lascivious-conduct charge. In total, petitioner agreed to a five-to-fifteen-year split sentence, with

two years to serve, as well as the imposition of sex-offender probation conditions. Petitioner and

the criminal court engaged in a colloquy, and the court accepted petitioner’s guilty plea but

reserved final sentencing until after the release of the presentence investigation report (PSI).

       ¶ 3.    Prior to sentencing, petitioner’s attorney moved to withdraw as counsel. At the

motion hearing, petitioner’s attorney explained that petitioner did not trust him and would not

communicate with him. Petitioner told the court that his attorney did not return his phone calls,

but he could not remember any other reasons for his dissatisfaction. The court denied the motion

and directed petitioner and his attorney to attempt a reconciliation. At the sentencing hearing,

the court rejected a second motion to withdraw by petitioner’s attorney, stating that petitioner

had not made a good-faith effort to repair the relationship and that his dissatisfaction with his

counsel was not substantive.

       ¶ 4.    During sentencing, the criminal court reviewed the PSI, which differed from the

original plea agreement in two important aspects. First, the PSI recommended a three-to-twenty-

year straight sentence instead of a five-to-fifteen-year split sentence.        Second, the report

recommended three additional probation conditions requiring that petitioner: (1) not use or

possess pornographic material; (2) not possess any photographs of the victim or any male or

female under the age of sixteen; and (3) allow his probation officer, or other corrections

personnel, permission to search his residence and seize any nonprescription drugs, alcohol,

pornography, or erotic material. The State acknowledged that these conditions were not part of

the original plea agreement and stated, “I suppose, in theory, if the court was not willing to

accept the plea agreement without those conditions . . . then that would be a change in the plea

agreement and the defendant would have a right to withdraw from it.”

       ¶ 5.    Counsel for petitioner informed the court that if the sentence otherwise conformed

to the original plea agreement then petitioner would have no objections to the special probation


                                                  2
conditions recommended in the PSI. The court questioned petitioner, his counsel, and the author

of the PSI to verify that the recommendations had been explained to petitioner and that he

understood them. The court then directly addressed petitioner:

                Court: And do you [petitioner] have any objection to any of these
               conditions that he’s asking for?

                [Petitioner]: Besides if I’m in jail for more than five years, I’m
               going to get myself killed, no.

                Court: Okay.      But the specific things that . . . we would be
               adding . . . .

                [Petitioner]: I could care less about . . . those.

                Court: Okay. But I want to make sure that you understand what
               they are, okay?

                [Petitioner]: No pornograph[y]—no pictures of [the] victim or
               [person] under age sixteen, no weapons or anything like that.

                 Court: Well, actually weapons isn’t one of them but . . . you were
               right on two of the three. The third one is that your probation
               officer or other people from corrections could search your house to
               see if you had any drugs, alcohol, pornography and so forth.

                [Petitioner]: That is one thing I do have a problem with, is in the
               original condition when this first started . . . alcohol was not one of
               the conditions.

                Court: Okay, so that’s the only thing you are objecting to?

                [Petitioner]: Yes.

       ¶ 6.    The court then discussed with petitioner his objection to the alcohol condition and

ensured that this was the only condition petitioner opposed. Petitioner confirmed that it was.

The court then reaffirmed petitioner’s assent to the plea agreement. Petitioner stated that he was

“willing to do the treatment and everything.” The court asked petitioner if he was “asking [the

court] to go ahead . . . with the deal [he] reached before,” to which petitioner responded, “Yes.”

The court also verified that petitioner understood that if he did not engage in sex offender

treatment he may end up serving the entire fifteen-year prison sentence.



                                                   3
       ¶ 7.    Finally, the court stated that it was going forward with the sentence as outlined in

the original plea agreement, with the addition of the special probation conditions recommended

in the PSI, minus the alcohol condition. Petitioner inquired about the two special conditions,

which he felt were contradictory.     The court explained the conditions and made sure that

petitioner understood them; petitioner confirmed that he did. The court directed the clerk to

impose the five-to-fifteen-year split sentence with the two added conditions.

       ¶ 8.    In 2014, petitioner filed his PCR petition, alleging that the criminal court violated

Rule 11(e)(4) when it failed to explicitly inform him that he had the right to withdraw his plea

after the criminal court imposed the additional probation conditions.1 The parties filed cross-

motions for summary judgment, and the PCR court granted summary judgment for the State,

holding that the sentencing court complied with Rule 11 by conducting a thorough colloquy to

ascertain petitioner’s consent to the additional probation conditions. The PCR court further held

that the new conditions did not change the terms of the original plea agreement because that

agreement “did not address those conditions.” The PCR court concluded that “the [sentencing]

court was not required to permit [petitioner] to withdraw because the sentence imposed was

consistent with the plea agreement.” Petitioner appealed.

       ¶ 9.    The sole issue on appeal is whether the sentencing court violated Rule 11(e)(4) by

failing to explicitly inform petitioner of his right to withdraw from his plea agreement after the

court imposed additional probation conditions. We review summary judgment decisions de novo

under the same standard as the trial court, viewing the facts in the light most favorable to the

nonmoving party. In re Hemingway, 2014 VT 42, ¶ 7, 196 Vt. 384, 97 A.3d 896. Summary

judgment will be granted “when there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law.” Id.; see V.R.C.P. 56(a). On a petition for PCR, the

       1
        Petitioner does not claim that the court violated Rule 11 because it deferred its decision
on the plea agreement and waited for the PSI without informing petitioner that he could
withdraw his plea if the plea agreement ultimately was rejected. The record before us does not
show what advice the criminal court gave petitioner at that time.
                                                4
petitioner must establish “by a preponderance of the evidence that one or more fundamental

errors rendered his conviction defective.” In re Hemingway, 168 Vt. 569, 570, 716 A.2d 806,

808 (1998) (mem.). PCR is a limited remedy, and the petitioner bears “the burden of proving

that fundamental errors rendered his conviction defective.”        Hemingway, 2014 VT 42, ¶ 7

(quotation omitted).

       ¶ 10.   Rule 11 governs generally the entering of pleas by criminal defendants and

provides a process to ensure that defendants entering guilty or nolo contendere pleas do so

voluntarily and with full understanding of the consequences. Id. ¶ 12. Rule 11(e)(4) specifically

provides the proper procedure the sentencing court must follow when rejecting a plea agreement:

               If the court rejects the plea agreement or defers decision upon it,
               the court shall inform the parties of this fact, advise the defendant
               personally in open court that the court is or may not be bound by
               the plea agreement, pursuant to Rule 32(d) afford a defendant who
               has already pleaded the opportunity to then withdraw his plea, and
               advise the defendant that if he persists in his plea the disposition of
               the case may be less favorable to the defendant than that
               contemplated by the plea agreement.

See In re Berrio, 145 Vt. 6, 8, 481 A.2d 1057, 1058 (1984) (stating that when court rejects

sentence set out in plea agreement, before it imposes greater sentence, it must, “consistent with

basic notions of judicial fairness, afford the defendant an opportunity to withdraw his guilty or

nolo plea”). When the sentencing court rejects the recommended sentence in the plea agreement,

it “draws into question the voluntariness of the plea.” State v. Belanus, 144 Vt. 166, 169, 475

A.2d 227, 228 (1984) (quotation omitted).

       ¶ 11.   Petitioner claims that the sentencing court violated Rule 11 when, upon imposing

new probation conditions, it failed to advise him personally of his right to withdraw his plea.

Petitioner does not dispute that the court sought his consent to the additional probation

conditions, but rather he argues that it failed to make an explicit statement to the effect of, “if

you want to scrap the whole thing, you have a right to do that.” We disagree with petitioner’s



                                                 5
overly technical reading of Rule 11, as it “exalts ritual over reality.” State v. Currier, 171 Vt.

181, 187, 758 A.2d 818, 822 (2000).

       ¶ 12.   In PCR proceedings, we consistently have looked for functional and substantial,

rather than precise, compliance with Rule 11. See In re Manosh, 2014 VT 95, ¶ 21, ___ Vt. ___,

108 A.2d 212 (explaining that “otherwise-thorough exchange with a defendant” satisfies Rule 11

where court “failed to specifically ask one of the prescribed questions but nonetheless had

sufficient grounds for finding that the plea was voluntary”); Hemingway, 2014 VT 42, ¶ 8

(explaining that “[s]ubstantial, rather than exact, compliance with Rule 11 is usually sufficient”);

In re Parks, 2008 VT 65, ¶ 11, 184 Vt. 110, 956 A.2d 545 (explaining that Rule 11 is satisfied if

colloquy’s shortcomings are technical in nature and sentencing court substantially complies with

its Rule 11 responsibilities); In re Thompson, 166 Vt. 471, 474, 697 A.2d 1111, 1113 (1997)

(stating that Rule 11 is not used as “technical formula, but rather as a guideline to insure fairness

to a defendant in the taking of his plea” (quotation omitted)).           As we previously have

emphasized, “we will not allow a procedural oversight to frustrate a plea where the court’s

substantial compliance with the rule affords the defendant fair and just process.” Hemingway,

2014 VT 42, ¶ 8 (alteration omitted) (quotation omitted). While none of our earlier cases involve

Rule 11(e)(4) in a PCR proceeding, we see no reason to adopt a different standard in this case.2

       ¶ 13.   Although the parties and the PCR court rely on the same summary judgment

record, they present two very different narratives of what occurred. In petitioner’s view, the

criminal court rejected the plea agreement by adding the three probation conditions but failed to

inform him of his resulting right to withdraw his guilty plea and go forward with the trial. In the

view of the State and the PCR court, based on the recommendations of the PSI, the parties

reached a new, or amended, plea agreement incorporating the three probation conditions but

       2
          In one early PCR case, In re Berrio, the issue of compliance with Rule 11(e)(4) was
raised for the first time on appeal to this Court. We considered Rule 11 compliance under a
plain-error standard and reversed. 145 Vt. at 8, 481 A.2d at 1058.

                                                 6
retaining the same split sentence to serve.3 Under this view, the obligation to inform petitioner

of his right to withdraw his guilty plea did not arise because the court did not reject the plea

agreement. We agree with the view of the State and the PCR court and conclude that, although

the criminal court might have been more explicit in protecting petitioner’s rights and explaining

what it was doing, it substantially complied with Rule 11.

       ¶ 14.   We base our conclusion on several facts. The criminal court did not reject the

original plea agreement or state what it would do if petitioner insisted on the terms of that

agreement. At the start of the sentencing hearing, counsel for petitioner stated that petitioner

would agree to the additional conditions so long as the content of the plea agreement otherwise

remained unaltered. The criminal court then engaged petitioner in a lengthy colloquy—which

particularly was appropriate given the rocky relationship between petitioner and his attorney—to

verify that he consented to the new probation conditions.

       ¶ 15.   The record demonstrates that petitioner was a willing and thoughtful participant in

the colloquy, making a cogent objection to the alcohol condition and pointing out the conditions

he felt were contradictory. The court repeatedly asked petitioner if he understood the conditions

and asked that he state any objections, and the court indicated its flexibility in agreeing to strike

the alcohol condition. Importantly, the court expressly asked petitioner if he was willing to go

forward with the original plea agreement, to which petitioner responded, “Yes.” While the court

never explicitly informed petitioner of his right to withdraw his plea, this lengthy exchange

indicated to petitioner that he was not required to agree to the new conditions and that he had a

choice in going forward with his original plea. The court did not agree to or implement the

additional probation conditions until the exchange with petitioner was completed. Rule 11

       3
          The PCR court also adopted an alternative rationale, relying upon State v. Thomas,
2010 VT 107, 189 Vt. 106, 14 A.3d 961, in which we held that adding a restitution requirement
not mentioned in the plea agreement was not a rejection of the plea agreement under Rule
11(e)(4). Id. ¶ 4. The court stated that Thomas governed because the special sex offender
probation conditions were not addressed in the plea agreement but were reserved for later
determination. In view of our decision, we do not consider this alternative holding.
                                               7
mandates no precise language or magic words; rather, it mandates an outcome. See McCarthy v.

United States, 394 U.S. 459, 465 (1969) (explaining that corresponding federal rule mandates no

particular procedure but serves as means to achieve required outcome). We conclude that the

court here achieved that outcome.

       ¶ 16.   We are not persuaded by petitioner’s reliance on State v. Bergerson, 144 Vt. 200,

475 A.2d 1071 (1984), and State v. Belanus, 144 Vt. 166, 475 A.2d 227, as these direct-appeal

cases show no compliance with Rule 11(e)(4). In Bergerson, the defendant entered into a plea

agreement in which he would pay restitution and avoid jail time, but the court reserved its

decision on sentencing until viewing the PSI. At sentencing, the court imposed a harsher

sentence, including jail time. Upon the defendant’s surprise, the court stated, “I would have

thought you must have known he could get a sentence . . . . I didn’t promise anything

about . . . all the sentence being suspended.” 144 Vt. at 202, 475 A.2d at 1073. We held that the

court violated Rule 11(e)(4) by failing to provide the defendant an opportunity to withdraw his

plea. Id. at 203, 475 A.2d at 1073.

       ¶ 17.   Similarly, in Belanus, the sentencing court imposed additional jail time than what

was agreed to in the plea agreement. Again, the court engaged in no discussion with the

defendant about the amended sentence, and, when the defendant moved to withdraw his plea, the

court denied the motion. We held that it was an abuse of the court’s discretion to deny the

defendant’s motion. 144 Vt. at 170, 475 A.2d at 229. Neither Bergerson nor Belanus presents a

situation where, as here, the record indicates that the plea agreement was amended and the

petitioner explicitly agreed to the new sentence imposed by the court.

       ¶ 18.   Petitioner further argues that, because of the fractious relationship with his

attorney, the additional recommendations in the PSI were not explained thoroughly before

sentencing and that the court therefore needed to explicitly state to petitioner that he could

withdraw his plea because it was possible, if not likely, that petitioner’s counsel did not explain


                                                8
that result to him.4 This argument lacks merit. Petitioner’s attorney was present when the

conditions were explained prior to the sentencing hearing and was satisfied that petitioner

understood and accepted the additional conditions. The court specifically asked counsel about

petitioner’s understanding of the recommendations in the following exchange:

                Court: So, although your client hasn’t affirmatively chosen to
               speak with you, you were in the room when he and [the PSI
               author] went over this?

                [Counsel]: Yes, and in fact I came in just as [petitioner] was
               reading the recommendation specifically of [the PSI author’s]
               request and he did not indicate that he would object to any of those
               conditions being imposed.

We do not see how the relationship between petitioner and his attorney in any way undermined

petitioner’s understanding of the conditions and his agreement to them.

       ¶ 19.   We therefore hold that the summary judgment record showed that there was no

disputed issue of material fact and that the trial court correctly concluded that the State was

entitled to judgment as a matter of law because the trial court substantially complied with Rule

11(e)(4).

       Affirmed.



                                              FOR THE COURT:



                                              Associate Justice




       4
          The State argues that this issue was not preserved for appeal. Petitioner specifically
raised this issue in his motion for summary judgment. We note, however, that there is no
evidence in the record that counsel did not advise petitioner of the right.
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