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@vermont.gov or by mail at: Vermont Supreme Court,
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be made before this opinion goes to press.


                                         2016 VT 24

                                        No. 2015-125

State of Vermont                                             Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court, Rutland Unit,
                                                             Criminal Division

Sergio Mendez                                                September Term, 2015


Thomas A. Zonay, J.

Rosemary M. Kennedy, Rutland County State’s Attorney, and Alfonso Villegas, Law Clerk,
 Rutland, for Plaintiff-Appellee.

Dawn Matthews, and Mica Williams, Law Clerk, Prisoners’ Rights Office, Montpelier, for
 Defendant-Appellant.


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


        ¶ 1.   REIBER, C.J.       Defendant appeals the trial court’s denial of his motion to

withdraw his guilty pleas in two domestic assault cases. Defendant argues that the court erred by

not using the term “deportation” or “clearly equivalent language” to advise him that deportation

was a possible consequence of pleading guilty. We affirm.

        ¶ 2.   Defendant is a citizen of the Dominican Republic who lived and worked legally in

Massachusetts as a permanent resident of the United States. In June 2013, he pleaded guilty to

one charge of felony domestic assault stemming from a May 2013 incident in which he

attempted to strangle his girlfriend at her home in Rutland, Vermont. Defendant signed a written

plea agreement prior to the change-of-plea hearing that read, in part: “I understand that if I am
not a citizen of the United States of America, admitting to facts sufficient to warrant a finding of

guilt or pleading guilty or nolo contendere (no contest) to a crime may have the consequences of

deportation or denial of United States citizenship.”

       ¶ 3.    Additionally, during the change-of-plea colloquy pursuant to Vermont Rule of

Criminal Procedure 11(c), the court orally advised defendant:

               Do you understand that if you’re not a United States citizen, this
               conviction could affect your ability to remain in the country, obtain
               your U.S. citizenship or reenter the country?

Defendant responded “I understand that.”        Upon accepting his change of plea, the court

sentenced defendant to a term of imprisonment of eighteen to thirty-six months, all suspended,

with a probationary term not to exceed two years.

       ¶ 4.    Shortly after defendant was released on probation, the federal government issued

a detainer to place him into deportation proceedings upon completion of his sentence. Then, in

late October 2013, Rutland police responded to two calls in which defendant’s girlfriend alleged

that defendant battered or otherwise assaulted her. During the first call, defendant’s girlfriend

reported that he had pushed and squeezed her, causing pain in her ribs that required emergency

room treatment, before defendant returned to Massachusetts. In the second call two days later,

defendant’s girlfriend reported that defendant was pounding on her front door and demanding

entry into her residence. A police officer responded to the call, found defendant at the residence,

and arrested him there.

       ¶ 5.    As a result of the latter two incidents, in August 2014 defendant pleaded guilty

both to a charge of violation of probation and to a second, misdemeanor charge of domestic

assault. Again, defendant signed a written plea agreement prior to the change-of-plea hearing.

The language of this agreement concerning the possible collateral consequences of a conviction

on his immigration status was identical to that of the prior written agreement. Then, using



                                                 2
slightly different language as compared to the prior change-of-plea colloquy, the court orally

advised defendant:

               Now do you understand that if you’re not a United States citizen,
               that a new conviction and the probation violation may affect your
               ability to remain in the country, obtain U.S. citizenship or reenter
               the country?

Defendant responded “I understand that.”         The court sentenced defendant to a term of

imprisonment of fifteen months to fifteen months and a day. Defendant began serving his

sentence immediately.

       ¶ 6.    In January 2015, defendant filed a motion to withdraw both of his guilty pleas on

the basis that the court had not properly advised him that deportation was a risk of pleading

guilty. The court denied this motion, finding that there was no substantive difference between

what the court advised defendant and specifically telling him that he could be “deported.”

       ¶ 7.    Defendant now appeals, arguing that the court should have granted his motion to

withdraw his guilty pleas because the court failed to use either the term “deportation” or what he

describes as “clearly equivalent language”—which we understand to mean either some variation

of the word “deport” or a one-word synonym of “deportation”—during the change-of-plea

colloquies. Specifically, defendant argues that the phrase “affect your ability to remain in the

country” does not comply with Rule 11 and 13 V.S.A. § 6565 because it is open to multiple

interpretations.   Conceding that “there are no ‘magic words,’ ” defendant maintains that

“deportation” carries precise weight and meaning for immigrants and would have “triggered a

gut check” for defendant. The State responds that the court’s language did comply with Rule 11

and 13 V.S.A. § 6565 because it more properly conveyed the meaning of “deportation” to

defendant.

       ¶ 8.    Rule 11 promotes fairness in pleas by requiring the court to ensure that the “plea

is knowingly and voluntarily made” before accepting it. See State v. Riefenstahl, 172 Vt. 597,


                                                 3
599, 779 A.2d 675, 678 (2001) (mem.). It implements 13 V.S.A. § 6565, which was amended in

2005 to warn defendants of possible collateral consequences of a conviction on their immigration

status. Rule 11 now reads, in part:

                (c) [T]he court shall not accept a plea of guilty or nolo contendere
                without first, by addressing the defendant personally in open court,
                informing the defendant of and determining that the defendant
                understands:

                ...

                (7) that if the defendant is not a citizen of the United States,
                admitting to facts sufficient to warrant a finding of guilt or
                pleading guilty or nolo contendere to a crime may have the
                consequences of deportation, denial of United States citizenship, or
                denial of admission to the United States in the future.

V.R.Cr.P. 11(c). Rule 11 does not require the court to recite this language verbatim. See State v.

Mutwale, 2013 VT 61, ¶ 8, 194 Vt. 258, 79 A.3d 850 (noting that Legislature rejected earlier

draft of 13 V.S.A. § 6565 that would have compelled court to use exact language in

advisements).

       ¶ 9.     Instead, the court has discretion not only to formulate an advisement that explains

the possibilities of deportation, denial of citizenship, or denial of admission to the country, but

also to determine that the defendant understands this advisement. See In re Hall, 143 Vt. 590,

595, 469 A.2d 756, 758 (1983) (“The precise form of the Rule 11 colloquy engaged in by the

court may vary from case to case . . . depending, among other things, on the competence of the

defendant and the complexity of the legal issues involved.” (citations omitted)); see also

Mutwale, 2013 VT 61, ¶ 9 (“It was within the trial judge’s discretion to formulate phrasing that

explained to defendant the possibilities of deportation or denial of U.S. citizenship.”).       In

exercising this discretion, the court must substantially comply with the requirements of Rule 11;

the court is not required to recite its language verbatim. See id., ¶ 8 (“The trial judge was not

required to recite the language of Rule 11(c)(7) verbatim; substantial compliance with the


                                                 4
requirements of Rule 11 is sufficient to withstand a challenge to the sufficiency of a plea

hearing.”).

       ¶ 10.   This principle follows from one of the core requirements of Rule 11: through

open dialogue with the defendant, the court must not only discuss the elements of Rule 11(c) but

also ensure that the defendant understands those elements. See Hall, 143 Vt. at 595, 469 A.2d at

758 (“It is enough that the court engages in an open dialogue . . . to the end that the court is

satisfied, and the record substantiates, that the defendant knows and understands the full array of

legal consequences that attach to a guilty plea.”). Therefore, the court may consider several

factors in formulating an advisement, including both the particular circumstances leading up to

the plea colloquy and the dialogue that occurred during the plea colloquy.

       ¶ 11.   Here, the court did just that on both occasions. First, the court determined that

defendant understood the written plea agreements, which explicitly stated that “pleading

guilty . . . may have the consequence[] of deportation.” The court asked defendant (1) whether

he had read and understood the written plea agreements, (2) whether he had discussed them with

his attorney, and (3) whether he was satisfied with his attorney’s advice. Defendant responded

affirmatively to all three questions. Second, the court orally advised defendant of the risk of

deportation by rephrasing the language found in the written plea agreements. The court then

asked defendant whether he understood, and defendant responded affirmatively.

       ¶ 12.   We restrict our analysis of the court’s advisements to the particular circumstances

of defendant’s plea colloquies.     We conclude that it was within the court’s discretion to

formulate an advisement using the phrase “affect your ability to remain in the country.” This

advisement is sufficient in and of itself to explain the possibility of deportation because Rule 11

requires only substantial compliance with its terms, not a verbatim repetition of its language. We

are not convinced that the phrase “affect your ability to remain in the country” is vague; in the

context of defendant’s plea colloquy, “deportation” and “affect your ability to remain in the

                                                5
country” would be synonymous. Indeed, we recognize that the court’s phrasing would actually

heighten defendant’s understanding of the possibility of deportation by presenting that possibility

in its most basic sense. Although some courts may find it most appropriate to use the term

“deportation” in their colloquies, the choice to use some other term or phrasing that substantially

complies with Rule 11 is entirely within their discretion. Furthermore, although not necessary to

reach this holding, the references in the written plea agreements to “deportation” buttress it.

         ¶ 13.   Additionally showing that the court satisfied Rule 11—and, by extension, 13

V.S.A. § 6565—defendant unequivocally stated during the plea colloquies that he understood the

court’s advisements. See In re Raymond, 137 Vt. 171, 181, 400 A.2d 1004, 1009 (1979)

(“Assertions in open court . . . are cogent evidence against later claims to the contrary.”). This

case is therefore unlike those in which the court failed to discuss the elements of Rule 11(c) and

to ensure that the defendant understood those elements. See In re Manosh, 2014 VT 95, ¶ 3, 197

Vt. 424, 108 A.3d 212 (holding that Rule 11 was not satisfied when court merely asked

defendant whether he understood “what’s been said and what’s in [the waiver of rights

document]” and whether he had “any question about anything”); In re Parks, 2008 VT 65, ¶ 3,

184 Vt. 110, 956 A.2d 545 (holding that Rule 11 was not satisfied when court gave speech

concerning criminal justice process rather than discuss possible legal consequences of guilty

plea).

         Affirmed.

                                                FOR THE COURT:



                                                Chief Justice


         ¶ 14.   DOOLEY, J., concurring. I concur in the decision of the Court because I agree

that the words the trial judge used and the words in the statute are synonymous. I also agree with


                                                 6
the Court that “the court’s phrasing would actually heighten defendant’s understanding of the

possibility of deportation by presenting that possibility in its most basic sense.” Ante, ¶ 12.

       ¶ 15.   I cannot, however, agree entirely with the Court’s rationale. The majority cites

and relies on In re Hall, 143 Vt. 590, 595, 469 A.2d 756, 758 (1983), for the proposition that

“[t]he precise form of the Rule 11 colloquy engaged in by the court may vary from case to

case . . . depending, among other things, on the competence of the defendant and the complexity

of the legal issues involved,” and on State v. Mutwale, 2013 VT 61, ¶ 8, 194 Vt. 258, 79 A.3d

850, for the proposition that only substantial compliance with Rule 11, including Rule 11(c)(7),

is required. Whatever has been our law with respect to substantial compliance with Rule 11, I do

not believe that substantial compliance with the requirements contained in 13 V.S.A. § 6565(c),

and imported into Rule 11(c)(7), is sufficient.

       ¶ 16.   I explained my views in part in a concurring opinion to the 2013 addition of

V.R.Cr.P. 11.1, adopted to import a statutory addition to the advice that must be provided to a

defendant on acceptance of a guilty plea, in that instance with respect to the possible collateral

consequences of a guilty plea. The relevant part of my concurring statement was:

               While I concur, I do so with some hesitancy because, as the
               Reporter’s Notes suggest, this rule is likely to import the
               jurisprudence of Criminal Rule 11 into this new rule. Because
               direct review of alleged Rule 11(c), (d) and (f) violations is
               possible only if defendant or defendant’s counsel preserves an
               objection to Rule 11 noncompliance, an event that will never
               happen, see my dissent in State v. Cleary, 2003 VT 9, 175 Vt. 142,
               824 A.2d 509, our regulation of compliance with these parts of
               Rule 11 is more theoretical than real. Further, I think it is difficult,
               if not impossible to find consistency in our many decisions
               involving Rule 11 under the limited and vague review standard we
               purport to apply.
V.R.Cr.P 11.1 (Editor’s note).
       ¶ 17.   The standard of review I was referring to was substantial compliance, the standard

used in Mutwale. A good example of the use of “substantial compliance” is State v. Riefenstahl,

172 Vt. 597, 779 A.2d 675 (2001) (mem.), a case cited and relied upon by the majority where the
                                                  7
court found substantial Rule 11 compliance from a written waiver with virtually no oral

colloquy, even though the Rule requires the trial judge to “address[] the defendant personally in

open court, informing him of and determining that he understands” seven categories of

information. See V.R.Cr.P. 11(c).

       ¶ 18.   In addition to the views stated in my concurrence to the adoption of V.R.Cr.P.

11.1, there is another reason why I do not believe that substantial compliance is the proper

standard for a violation of 13 V.S.A. § 6565(c)(1). In enacting that statute, the Legislature also

enacted a precise remedy for noncompliance. It states that if “the court fails to advise the

defendant in accordance with this subsection” and the plea has negative immigration

consequences, the court “shall vacate the judgment and permit the defendant to withdraw the

plea or admission and enter a plea of not guilty.”          Id. § 6565(c)(2).    This language is,

unfortunately, not in the rule. There is nothing in it that says that substantial compliance with the

requirements of § 6565(c)(2) is enough.        I do not believe that a standard of substantial

compliance, as explained in our case law, complies with § 6565(c)(2). Nor do I agree that the “it

depends” standard from In re Hall complies.

       ¶ 19.   In my opinion, by relying, in part, on a substantial compliance standard in

upholding the advice given in this case, the majority has erred.

       ¶ 20.   I am authorized to state that Justice Robinson joins this concurrence.



                                                Associate Justice




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