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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-180

                                       OCTOBER TERM, 2016

 In re Raymond G. Earle                                }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Lamoille Unit,
                                                       }    Civil Division
                                                       }
                                                       }    DOCKET NO. 250-11-13 Lecv

                                                            Trial Judge: Dennis R. Pearson

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

        Petitioner appeals from the superior court’s decision denying his motion for summary
judgment and granting summary judgment to the State with respect to his petition for post-
conviction relief (PCR) alleging that the trial court violated Vermont Rule of Criminal Procedure
11(f) in accepting his plea of guilty to a charge of grand larceny. We reverse the superior court’s
decision and remand the matter for the court to enter a judgment allowing petitioner to withdraw
his guilty plea.

        In 2012, the State charged petitioner with grand larceny, in violation of 13 V.S.A. § 2501,
and felony unlawful mischief, in violation of 13 V.S.A. § 3701(a). The State alleged that petitioner
had logged property without the permission of the property’s owner. Petitioner initially pleaded
not guilty to the charges. In April 2013, pursuant to a plea bargain, petitioner agreed to plead
guilty to the grand larceny charge with a sentence of two-to-five years to serve, and the State
agreed to withdraw the unlawful mischief charge. Following the colloquy at the change-of-plea
hearing, the trial court accepted the plea and sentenced petitioner to two-to-five years to serve.

        In November 2013, seven months after sentencing, petitioner filed a pro se PCR petition.
The petition as amended by petitioner’s counsel alleged that at his change-of-plea hearing, the trial
court misstated the mental element of grand larceny such that petitioner never admitted to the
factual basis for that element. The State did not file an opposition to the motion or a cross-motion
for summary judgment. Taking the matter under advisement, the superior court denied petitioner’s
motion for summary judgment and granted summary judgment to the State. According to the
court, the colloquy at the change-of-plea hearing demonstrated that petitioner personally
acknowledged that he did not have permission to remove the trees, that he was across the boundary
line, and that the trees he removed came from the owner’s property. On appeal, petitioner renews
his argument that the trial court violated Rule 11(f) by misstating the mens rea element of grand
larceny and accepting his plea despite his denial that he acted knowingly.

        We review the superior court’s summary judgment decision de novo, applying the same
standard as that applied by the superior court. In re Stocks, 2014 VT 27, ¶ 11, 196 Vt. 160.
“Summary judgment is appropriate when there are no genuine issues of material fact, and any
party is entitled to judgment as a matter of law.” Id. “On a petition for post-conviction relief, the
petitioner has the substantial burden of proving by a preponderance of the evidence, that
fundamental errors rendered his conviction defective.” In re Grega, 2003 VT 77, ¶ 6, 175 Vt. 631
(mem.) (quotation omitted).

         Grand larceny is defined as stealing property valued at more than $900 “from the actual or
constructive possession of another, other than from that his or her person.” 13 V.S.A. § 2501. The
property must be taken “from one in lawful possession without right, with the intention to keep it
wrongfully.” State v. Reed, 127 Vt. 532, 538 (1969). “Larceny specifically requires an intent to
steal at the very moment the property in question is taken into possession by the defendant.” State
v. Hanson, 141 Vt. 228, 232 (1982). “When the taking is admitted, . . . innocence or guilt can only
be found in the state of the trespasser’s mind,” and “the question of criminal intent is for the jury
to consider according to all circumstances brought before them.” Reed, 127 Vt. at 538. “The
taking of another’s property in good faith, by inadvertence or mistake, may be wrongful; it may
amount to a conversion or trespass, but it does not constitute larceny.” Id.

       The following colloquy occurred during the change-of-plea hearing as to whether
defendant conceded that there was a factual basis for the charge:

                       COURT: All right. The factual basis here?

                      PROSECUTOR: Your Honor, [petitioner], on or about
               November of 2011 through sometime in March 2012, went onto the
               property of [the owner] and, without authority, logged a substantial
               amount of trees, the aggregate value of which was . . . in excess of
               900 dollars making this a felony and a grand larceny.

                       He had no authority to do that, had no reason to believe he
               had such authority and no intent to return the trees to the owner
               (indiscernible).

                      DEFENSE COUNSEL: He had a contract to do logging on
               an adjoining piece of property—

                       PROSECUTOR: Right.

                       DEFENSE COUNSEL: —and the allegation is he took 114
               or 112 trees off the [owner’s] property. . . . [Petitioner] has
               maintained that the boundary between the two properties was not
               easily distinguishable. However, the State has testimony that they
               would present that there were markings on the boundary and that
               [petitioner] would have known that he was crossing into them. That
               would be the issue at trial.

                      [Petitioner] has decided to waive that issue in return for the
               concurrent plea.

                       ...

                      COURT: All right. [Petitioner], you agree with what your
               attorney has just stated?


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       PETITIONER: Yeah

       COURT: All right. So I’m looking at the affidavit, and it
does say that there was a dispute but that—according to [the owner]
anyway that the trees were blazed and there was orange survey tape.
It may have been a year old or so and faded somewhat, but I have
some familiarity with logging and blazing of trees, and if you’re
looking for it, you’ll find it, and you’re an experienced logger, so I
would expect you would have that ability as well.

        So the factual basis is here to establish the factual basis for
the elements of the crime. The question is whether or not you wish
to admit that you either were aware or you certainly should have
been aware that you were on somebody else’s property and you were
taking these trees.

        PETITIONER: Yeah. I mean, yeah, I just want to get this
out of the way.

        COURT: Well, I understand that, but that’s not what I’m
asking you. What I’m asking you is whether or not you had the
knowledge or should have had the knowledge that you were taking
trees that you didn’t have a right to take because they were on
somebody else’s land.

       PETITIONER: I guess I should have known, yes. I should
have looked more carefully somehow but—

        DEFENSE COUNSEL: Should have used more diligence
before he went—he knew he was—he has told me he knew he was
getting close to the edge. He should have spent a little more time
trying to figure out where the edge was before he crossed it.

        COURT: All right. I guess I can accept that. I mean, the
reverse of what I—or the flip side of what I just asked you is that if
you have a contract to take timber on someone’s land, then you have
a duty to figure out where their land begins and where it ends, and
if you didn’t comply with that duty, you can be criminally liable.

       PETITIONER: Right.

       COURT: Okay

        DEFENSE COUNSEL: According to the videotape, the
screen—of the thing, the trees taken were not right down the line,
the tree taken were well within the [owner’s] property.

       COURT: So I suspected. Is that true?

       PETITIONER: Yeah, they were. I mean, it came after that
Hurricane Irene, and it was a struggle to get through there.

                                  3
                        COURT: So were you well onto the [owner’s] property?

                        PETITIONER: Yeah, we got in there, a ways in there, yeah.

                        ...

                        COURT: . . . and the State would have to prove beyond a
                reasonable doubt that you had the intent of taking trees that were not
                on the property you had on the contract. Okay? They have an
                obligation if you wanted a trial in the matter. Do you understand
                that?

                        PETITIONER: Yeah.

                        COURT: Okay. Do you want a trial in this matter?

                        DEFENDANT: No.

                        ...

                         COURT: And you did not have a right to remove those trees;
                is that correct?

                        DEFENDANT: Yeah.

                        COURT: Okay. Then I’ll accept your guilty plea.

       Petitioner argues that this colloquy does not satisfy Rule 11(f) because the trial court
misstated the correct mens rea element and he denied that he acted knowingly. We agree.

          Rule 11(f) provides that the trial court should not enter a judgment upon a plea of guilty
“without making such inquiry as shall satisfy it that there is a factual basis for the plea.” In relevant
part, this rule “is intended to prevent the entry of false guilty pleas in situations where the defendant
does not completely understand the elements of the charge or realize that he [or she] has a valid
defense.” Reporter’s Notes, V.R.Cr.P. 11(f). Our case law requires “that the defendant admit to
and possess an understanding of the facts as they relate to the law for all elements of the charge or
charges to which the defendant has pleaded.” State v. Yates, 169 Vt. 20, 24 (1999). “The
requirement that the record affirmatively show facts to satisfy each element of the offense
is . . . absolute.” In re Miller, 2009 VT 36, ¶ 11, 185 Vt. 550. In short, “[t]he requirement of Rule
11(f) involves an understanding by the defendant that the conduct admitted violates the law as
explained to him by the court.” In re Dunham, 144 Vt. 444, 451 (1984).

       In this case, petitioner initially agreed with his attorney’s statement at the change-of-plea
hearing that the State had evidence indicating that he “would have known” that he was crossing
onto the owner’s property, but had decided to waive the issue of whether he knew he was logging
land without the owner’s permission in order to obtain the plea agreement. In continuing the
colloquy, however, the trial court asked petitioner whether he “had the knowledge or should have
had the knowledge” that he was taking trees that he did not have a right to take because they were
on somebody else’s land. Petitioner responded that he “guessed” he “should have known”—he
“should have looked more carefully.” The court reiterated that petitioner had “a duty to figure out


                                                   4
where their land begins and where it ends, and if you didn’t comply with that duty, you can be
criminally liable.”

         Notwithstanding that petitioner admitted logging well past the boundary of the owner’s
property and acknowledged that the State had to prove his intent to take trees on land for which he
did not have a contract, the colloquy gave petitioner the clear impression that he could be convicted
of grand larceny as long as he should have known the logging was wrongful. This is not an
accurate statement of the mens rea element of grand larceny, which requires an intent to steal, and
it could have induced petitioner’s guilty plea based on his belief that the intent element of the
offense required the State to prove only that he should have known he was logging land without
the owner’s permission. See id., at 451 (stating that “collateral attacks for defects under Rule 11(f)
require no showing of prejudice”). For the above reasons, we reverse the superior court’s denial
of petitioner’s motion for summary judgment and its award of summary judgment to the State.

        Reversed and remanded for entry of a judgment allowing petitioner to withdraw his guilty
plea.




                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




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