In Re: Bernard Benoit, No. 73-4-05 Ancv (Reiss, J., July 12, 2005)


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                                  STATE OF VERMONT
                                 ADDISON COUNTY, SS.

                                                                       )
IN RE BERNARD BENOIT                        )              Addison Superior Court
                                            )
                                            )              Docket No. 73-4-05 Ancv
                                            )
                                                                          )


  OPINION AND ORDER REGARDING PETITIONER’S MOTION FOR REVIEW
       UNDER 13 V.S.A. § 7131 AND MOTION TO VACATE SENTENCE

       This matter comes before the court on the above-captioned motions by Petitioner
Bernard Benoit. Petitioner requests post-conviction relief pursuant to 13 V.S.A. § 7131,
claiming that the Addison District Court violated his due process rights when it entered
judgment on his plea without sufficiently inquiring into the facts supporting the crime for
which he was convicted. The State’s Attorney for Addison County and the Vermont
Attorney General have received requisite notice of this petition and Petitioner’s pending
motions. The court has reviewed a video recording of Petitioner’s August 2, 2004 change
of plea hearing in which the District Court conducted the plea colloquy pursuant to
V.R.Cr.P. 11 and has invited the parties to do so as well.

                                       Findings of Fact

       Petitioner was originally charged with grand larceny, 13 V.S.A. § 2501, and
driving with a suspended license, 23 V.S.A. § 674. At a change of plea hearing on
August 2, 2004, the State amended the charge to one count of possession of stolen
property, 13 V.S.A. § 2561(b), and Petitioner pleaded guilty.
       The court began to take Petitioner’s plea by reading the amended charge:
              Court: That on December 1, 2003, in Monkton, you possessed
              property valued over $500 knowing that it was stolen,
              specifically a video camera with equipment, jewelry, a rifle
              with ammunition, and a half-gallon bottle of whiskey, stolen
              from Kevin and Pamela Corrigan, and valued at
              approximately $1,950. Do you understand that?
              Petitioner: Yup.
       The court then proceeded with V.R.Cr.P. 11(c) and 11(d) colloquies, which
Petitioner does not contest. When the court began to address the factual basis for the
amended charge, the colloquy proceeded as follows:
              Court: Is it in fact true that you did have the described
              property in your possession?
              Petitioner: Yes.
              Court: And did you at that time know that it was stolen
              property?
              Petitioner: No.
              Court: OK, then we have a problem. . . . How did you get the
              property, Mr. Benoit?
              Defense counsel: Actually, judge, I’m sorry. We haven’t
              seen the amended information, yet, but I know that if you ask
              Mr. Benoit if he could admit that at some point he was in
              possession of a video camera and video camera equipment
              and a rifle and a bottle of whiskey, he would be able to
              truthfully tell you that at some point he came to realize that
              that property was stolen, that it was stolen from the
              Corrigans, and that he did not take any steps to return it to the
              Corrigans or to the police.
        The State’s Attorney then struck the portion of the amended charge related to
jewelry, despite an agreement among both parties that Petitioner would still be liable for
restitution for these items if they were not returned. The court then continued the
colloquy:
              Court: So, Mr. Benoit, putting aside the jewelry, do you agree
              that you had the other property at some point in your
              possession and you knew then that it was stolen—
              Petitioner: Yes.

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               Court: —or you knew at some point—
               Petitioner: Yes.
               Court: And it was just the jewelry that you say you didn’t
               have—
               Petitioner: Correct.
               Court: or didn’t know was stolen? OK. In that case, I will
               accept your guilty plea. I do see a factual basis.
         The court then entered judgment of guilty and sentenced Petitioner to 1–3 years, to
serve.
       Petitioner argues that the court violated V.R.Cr.P. 11(f) by not adequately
inquiring into the factual basis for his plea. Specifically, Petitioner claims that the court
never ascertained or inquired into any facts regarding his intent to restore the property to
its owner. Section 2561(b) of Title 13 provides that a defendant cannot be guilty of the
crime charged if the defendant has “the intent to restore [the stolen property] to the
owner.”
                                      Conclusions of Law
       A petitioner is entitled to post-conviction relief pursuant to 13 V.S.A. § 7131
where the petitioner’s sentence “was imposed in violation of the constitution or laws of
the United States, or of the state of Vermont.” Because V.R.Cr.P. 11 is intended to
protect against due process violations where a court enters judgment on an involuntary or
unknowing plea, Reporter’s Notes, V.R.Cr.P. 11, a violation of the rule may be grounds
for post-conviction relief. See, e.g., In re Kasper, 145 Vt. 117, 121 (1984). A violation
of V.R.Cr.P. 11(f) does not require a showing of prejudice:
               Since the defendant's understanding of the elements of an
               offense as applied to the facts goes directly to the
               voluntariness of his plea, the record must affirmatively show
               sufficient facts to satisfy each element of an offense. The
               requirement of V.R.Cr.P. 11(f) involves an understanding by
               the defendant that the conduct admitted violates the law as
               explained to him by the court. Absent this, no matter how
               perfectly the other parts of Rule 11 have been observed, we
               cannot find a voluntary plea. Unlike collateral review of
               alleged defects under V.R.Cr.P. 11(c), which places a burden
               of proving prejudice upon the defendant, collateral attacks for
               defects under Rule 11(f) require no showing of prejudice.
In re Dunham, 144 Vt. 444, 451 (1984).

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        In this case, Petitioner pleaded guilty to a violation of 13 V.S.A. § 2561(b), which
provides: “A person who buys, receives, sells, possesses unless with the intent to restore
to the owner, or aids in the concealment of stolen property, knowing the same to be
stolen, shall be punished the same as for the stealing of such property.” Id. (emphasis
supplied). The Vermont Supreme Court has held that, because the statute does not define
the elements of this crime, the elements are defined in reference to the common law
receipt of stolen property offense. State v. Bleau, 139 Vt. 305, 308 (1981). Those
elements include that the receipt must be with “unlawful intent.” Id. Such intent would
exist when an individual in possession of stolen goods knows the goods are stolen and
does not intend to return them.
        V.R.Cr.P. 11(f) provides 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.” “While it is the better practice for
the court, when considering whether to accept a guilty plea, to explain to the defendant
the elements of the offense and the factual allegations comprising the offense, this is not a
per se rule.” State v. Whitney, 156 Vt. 301, 302 (1991) (citations omitted). Rather, the
nature of the court’s inquiry “‘must necessarily vary from case to case.’” Id. (quoting
McCarthy v. United States, 394 U.S. 459, 467 n.20 (1969)). “‘[N]o mechanical rules can
be stated, and the more complex or doubtful the situation . . ., the more searching will be
the inquiry dictated by a sound judgment and discretion.’” Id. at 303 (quoting United
States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979)). Nevertheless, “‘the record must
affirmatively show sufficient facts to satisfy each element of an offense.’” In re Kasper,
145 Vt. 117, 120 (1984) (quoting In re Dunham, 144 Vt. 444, 451 (1984)). The trial
court must also inquire into these facts by reciting them “during the proceedings at which
the defendant enters the plea.” State v. Yates, 169 Vt. 20, 25 (1999). The underlying
purpose of the V.R.Cr.P. 11(f) procedure is to ensure further that a defendant enters a
plea voluntarily. “‘[B]ecause a guilty plea is an admission of all the elements of a formal
criminal charge, it cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts.’ Thus, a violation of Rule 11(f) goes
directly to the voluntariness of the plea . . . .” Dunham, 144 Vt. at 449 (1984) (emphasis
in original) (citation omitted).
      In determining whether a trial court has satisfied V.R.Cr.P. 11(f), the Vermont
Supreme Court has examined the nature of the offense and the likelihood that the
defendant understood elements of the crime even though they were not explicitly
enunciated by the court. “In all such inquiries, [m]atters of reality, and not mere ritual,
should be controlling.” Whitney, 156 Vt. at 303 (alteration in original) (internal quotes
omitted). In Whitney, for example, the Court held that the elements of the DUI offense
were “readily understandable,” where the court “clearly informed” the defendant, who
was not a stranger to the DUI law, that he was charged with DUI and examined the


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arresting officer’s affidavit, which was supplied to the defendant. 156 Vt. at 303. But in
Kasper, the Court held that the trial court violated V.R.Cr.P. 11(f) because “[t]he
elements of the three felonies[—forgery, breaking and entering, and escape—]were not
explained to the defendant, nor were any factual bases for the guilty pleas presented to
the court.” 145 Vt. at 120–21. Similarly, in Dunham, the Court held that the trial court
also violated V.R.Cr.P. 11(f) where “the record discloses no factual basis for the willful
element of second degree murder.” 144 Vt. at 448; but see State v. Gabert, 152 Vt. 83,
87 (1989) (holding no need to explain implicit mental intent to deprive owner of property
permanently in accepting plea to assault and robbery charge).
        Where there is some evidence that a defendant is not entering a plea voluntarily,
the trial court must “be especially careful in discharging [its] duties under Rule 11.”
Dunham, 144 Vt. at 449 (alteration in original) (internal quotes omitted). In Dunham, the
Court held that there was a danger signal where “the prosecutor specifically called to the
trial court’s attention that there was an insufficient factual basis on the record to establish
willfulness, or the intent to commit the crime of second degree murder.” Id. Here, the
court’s inquiry was made after defense counsel identified items to which a voluntary plea
would not be entered and after defense counsel stated that Petitioner would admit only
that he did not take steps to return the property to its owner which is not an element of the
crime charged.1 These were “danger signals” which should have alerted the court to the
need to make a more searching inquiry because even if Petitioner took no steps to return
the property, he may have intended to return it. Indeed, he now argues that he was about
to return the property when he learned that it was stolen.
       The “intent to restore” element is not readily understandable to an average
defendant. Petitioner could have been reasonably confused by the charge, which the
court did not describe in accordance with its statutory language, and thus he was not
advised, nor could reasonably be expected to know, that he could not be found guilty if
he intended to return the items to the owner even if he had not yet taken steps to do so.
This case can thus be distinguished from Gabert, where the intent element was more
obvious.
      The court concludes that the District Court failed to comply with V.R.Cr.P. 11(f)
when it entered judgment on Petitioner’s plea. Accordingly, Petitioner’s plea was not
knowing and voluntary, as required by the due process clause of the Fourteenth
Amendment. See Boykin v. Alabama, 395 U.S. 238, 242–43 (1969); In re Dunham, 144



       1
          Even if defense counsel’s statement provides a factual basis regarding
Petitioner’s intent, it was not offered as a stipulation and the court never questioned
Petitioner about it.

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Vt. 444, 449 (1984). Thus, Petitioner is entitled to relief, as his sentence was not
authorized by federal or state law.
        Under 13 V.S.A. § 7133, where “the sentence imposed was not authorized by law
or is otherwise open to collateral attack, . . . [the court] shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate.” “When a guilty plea has been unfairly induced . . .,
the appropriate remedy is to make timely application to vacate the plea and be permitted
to stand trial.” In re Dussault, 128 Vt. 135, 136 (1969).




       The Addison District Court’s judgment of guilty in State v. Benoit, Docket No.
156-4-04, is hereby VACATED and Petitioner shall be granted a new trial. The State has
five business days from the filing of this Order to make a request for bail and/or for
conditions of release. Thereafter, this matter shall be set promptly for calendar call and
jury draw unless the parties reach a resolution. Petitioner Benoit has requested an
application for a public defender, which shall be forwarded to him with this Order.
       SO ORDERED.



       Dated at Middlebury, Vermont, July 12, 2005.



                                                 ________/s/________________
                                           Hon. Christina Reiss
                                                 Presiding Judge
                                                 Addison Superior Court




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