2014 VT 27


In re Stocks (2012-369)
 
2014 VT 27
 
[Filed 21-Mar-2014]
 
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 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2014 VT 27

 

No. 2012-369

 

In re Alvin Lee Stocks


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Windham Unit,


 


Civil Division


 


 


 


January Term, 2014


 


 


 


 


Katherine
  A. Hayes, J.


 

Allison N. Fulcher
of Martin & Associates, Barre, for
Petitioner-Appellant.
 
Ashley A. Harriman, Windham County Deputy State’s Attorney,
and Samantha Snow,
  Law Clerk, Brattleboro, for Respondent-Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.           ROBINSON,
J.   Petitioner appeals from the superior court’s order granting
summary judgment to the State on his petition for post-conviction relief
(PCR).  He argues that the trial court did not comply with Vermont Rule of
Criminal Procedure 11 in accepting his guilty pleas to various crimes.  We
reverse.
¶ 2.           In
June 2009 petitioner pled guilty to the following charges pursuant to a plea
agreement: operation without consent of owner; driving under the influence,
second offense; possession of marijuana; and domestic assault.  In July
2011, petitioner filed a pro se PCR petition.  Counsel was appointed and
petitioner moved for summary judgment.  Petitioner argued that the
undisputed facts showed that the plea colloquy failed to comply with Rule 11(f)
because the court did not sufficiently establish a factual basis for the
pleas.  Petitioner also asserted that the colloquy failed to comply with
Rule 11(c)(1) because the court did not adequately
explain the elements of the charge of operating without the consent of
owner.  The PCR court rejected petitioner’s arguments and concluded that
the State was entitled to summary judgment.  
¶ 3.           The
undisputed facts, as reflected in the transcript of the plea colloquy, are as
follows.  At the change-of-plea hearing, the trial court engaged in a
colloquy with petitioner after being presented with his plea agreement. 
The court confirmed that petitioner had consulted with his attorney about the
agreement, that he understood the rights he was giving up, that he was not
under the influence of alcohol or drugs, and that he had not been coerced into
the plea agreement.  The court explained that if the case had gone to
trial, the State would have had to prove each charge beyond a reasonable doubt
and petitioner would have an opportunity to cross-examine the State’s witnesses
and to call his own witnesses and present any defenses.  The court advised
defendant that he was giving up his right against self-incrimination, and his
right to appeal the court’s decision.
¶ 4.           The
trial court then reviewed the charges individually.  With respect to the
charge of operating without owner’s consent, the court and petitioner engaged
in the following back-and-forth:
THE
COURT: On the operating without owner’s consent, if that case had gone to
trial, the State would have had to prove that at Guilford, on or about January
24th of this year, you acted knowingly—that means you acted with knowledge, not
by mistake or accident—when you operated the motor vehicle of another person,
and during the time you operated it, that vehicle was damaged by at least
$500.  Do you understand that?
 
PETITIONER: Yes,
ma’am.  
¶ 5.           With
respect to the DUI charge, the court and petitioner had the following exchange:
THE
COURT: On the DWI in that case, the State would have to prove that also at
Guilford, on or about January 24th, you operated a motor vehicle, you did that
on a public highway, which was Route 5.  At the time, you were under the
influence of alcohol and that you were previously convicted of a DWI on May
2nd, 1999.  Do you understand that?
 
PETITIONER:
Yes, ma’am.
 
THE
COURT: And the factual basis there is that the police officer had contact with you,
you showed signs of being impaired, you admitted that you consumed alcohol, you
had difficulty with the field sobriety tests, and the evidentiary breath tests
show that you were above the legal limit.  Do you understand that?
 
PETITIONER:
Yes, ma’am.
 
¶ 6.           Next,
the court discussed the marijuana charge:  
THE
COURT: And on that same case, on the same day, the State would have to prove
but this time in Brattleboro but on the same day that you possessed marijuana,
and you did that knowingly, not by mistake or accident, and you did that
unlawfully in violation of the law.  Do you understand?
 
PETITIONER:
Yes ma’am.
 
¶ 7.           Finally,
with respect to the domestic-assault charge, the court engaged in the following
back-and-forth:
THE
COURT: [I]f that had gone to trial, the State would have had to prove that on
or about October 11th of last year at Brattleboro, you acted recklessly—that
means you acted by disregarding the likely outcome of your conduct—and that you
did cause bodily injury to a family or household member.  Do you
understand?
 
MR.
STOCKS: Yes, Ma’am.
 
THE
COURT: And Ms. Kryger [the State’s attorney], what’s
the factual basis for that?
 
MS.
KRYGER: The factual basis of that is that Mr. Stocks—just get the
affidavit.  The factual basis is that Mr. Stocks was sitting behind Krista
Hazelton, who was his girlfriend or ex-girlfriend, that they had been in a
relationship, he was sitting behind her in a car and—and put something around
her neck and pulled and it—and it caused her pain.
 
THE
COURT: Do you understand that, Mr. Stocks?
 
MR.
STOCKS: Yes, ma’am.
 
¶ 8.           In
connection with each charge, the court also identified the penalties the court
could impose, and petitioner affirmed his understanding of the penalty for each
charge.  After confirming that petitioner understood the elements and
penalties associated with each charge, the court asked petitioner what he pled
to the charges.  Petitioner replied, “guilty.” 
The court found that petitioner had entered into the plea voluntarily and
knowingly with a factual basis for the plea and entered a judgment of guilty on
the plea.
¶ 9.           In
his motion for summary judgment in the PCR case, petitioner argued that the
trial court’s judgment, and the guilty plea upon which it was based, were
fatally flawed in two ways.  First, petitioner argued that the trial court
failed to elicit from him the factual basis for the plea as required by Rule
11(f).  Second, petitioner asserted that in listing the elements of
operation without owner’s consent, the trial court failed to specifically
recite “lack of consent” as an element, thereby undermining the voluntariness
of his guilty plea.
¶ 10.       With respect to
the first issue, the PCR court concluded that the plea colloquy substantially
complied with Rule 11.  See State v. Cleary, 2003 VT 9, ¶ 15,
175 Vt. 142, 824 A.2d 509 (explaining that when a collateral challenge is made
to the validity of a plea under Rule 11, the reviewing court will “require only
substantial compliance with the requirements of the rule”). The PCR court
reasoned that the change-of-plea court made clear to petitioner the charges
against him, the elements of those charges, and the underlying facts being
alleged by the State to support the charges.  Petitioner indicated that he
understood each of the charges against him, and the penalties associated with
them.  After receiving and understanding all that information, petitioner
pled guilty.  The PCR court found this adequate to demonstrate that facts
existed sufficient to support the charges against petitioner.  With
respect to petitioner’s second argument, the PCR court concluded that the
change-of-plea court’s description of the charge as “operating without owner’s
consent” was sufficient to convey to petitioner that an element of the charge
is that the operation occur without the owner’s consent.  Accordingly, the
court granted summary judgment to the State.  Petitioner renews his
arguments on appeal.
¶ 11.       We review the
court’s summary decision de novo, applying the same standard as the trial
court.  Sabia v. Neville, 165 Vt. 515, 523, 687 A.2d 469, 474 (1996).
 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.  V.R.C.P. 56(a), (f).  
¶ 12.       Vermont Rule of
Criminal Procedure 11(f) provides, “Notwithstanding the acceptance of a plea of
guilty, the court should not enter judgment upon such plea without making such
inquiry as shall satisfy it that there is a factual basis for the plea.” 
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, where the defendant
is pleading guilty because of psychiatric disturbance or like incompetency, or
where the defendant is deliberately pleading guilty to shield an innocent
person.
 
Reporter’s Notes, V.R.Cr.P. 11(f).
¶ 13.       The “factual
basis” requirement reinforces the goal of ensuring knowing and voluntary
pleas.  See In re Miller, 2009 VT 36, ¶ 9, 185 Vt. 550, 975
A.2d 1226 (requirement prevents false guilty pleas in situations where, for
example, the defendant does not completely understand the elements of the
charge or recognize a defense); State v. Whitney, 156 Vt. 301, 303, 591
A.2d 388, 389 (1991) (explaining that Rule 11(f) inquiry is meant to address
the voluntariness of a plea).  But Rule 11(f) promotes this ultimate goal
through a path that is distinct from the other provisions of Rule 11 relating
to the voluntariness of the plea.  In particular, Rule 11(f) ensures that even a plea entered voluntarily without force or threat, see
V.R.Cr.P. 11(d), and with full understanding of the
elements of the charge, the potential penalties, and rights waived, see V.R.Cr.P. 11(c), is warranted by underlying facts. 
Rule 11(g), which requires a record of the proceedings at which a defendant
enters a plea, reinforces the independent significance and purpose of the
“factual basis” inquiry.  That provision requires that the record include
“the court’s advice to the defendant, the inquiry into the voluntariness of the
plea including any plea agreement, and the inquiry into the accuracy
of a guilty plea.”  V.R.Cr.P. 11(g) (emphasis
added).
¶ 14.       We discussed the
requirements of Rule 11(f) in detail in the case of State v. Yates, 169
Vt. 20, 726 A.2d 483 (1999).  In that case, the defendant had been charged
with two assaults—one against his then-wife, and the other against her
friend.  In the Rule 11 plea colloquy, the court elicited the defendant’s
account of the altercation with the friend but did not ask the defendant about
the assault of his then-wife.  We held, “This failure to question [the]
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).”  Id.
at 24, 726 A.2d at 486.  We explained that “[w]hile the court may obtain facts from other sources,
including the prosecutor and the presentence report,
ultimately, the court’s inquiry into the accuracy of the plea must be addressed
personally to the defendant.”  Id. (citation omitted). 
Reviewing our prior decisions concerning Rule 11(f), we concluded, “While few
Vermont cases have turned on an interpretation of Rule 11(f), those that have
consistently require 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.”  Id.
(emphasis added); see also In re Kasper, 145 Vt. 117, 120, 483 A.2d 608,
610 (1984) (“The record must reveal that the elements of each offense were
explained to the defendant and that a factual basis for each element was
admitted.” (emphasis added)).
¶ 15.       We do not require
a particular formula for determining that there is a factual basis for the
plea.  An admission to the facts by the defendant in the course of the
colloquy is usually sufficient.  A recital of the facts by the prosecutor
together with a statement by the defendant confirming their accuracy would also
satisfy the rule.  What is principally required—and what was missing in
this case—is evidence of a specific inquiry by the judge into the factual basis
for the plea.
¶ 16.       In this case, the
change-of-plea court sufficiently described the elements of the charges against
petitioner, and the underlying facts alleged, and appropriately ensured that petitioner
understood the charges.  With the exception of petitioner’s specific claim
concerning the court’s description of the charge of operating without the
owner’s consent, which we do not reach, there is no question that the plea
colloquy satisfied Rules 11(c) and 11(d).  The question for this Court is
whether the record of the plea colloquy supports the change-of-plea court’s
finding of a factual basis for the charge pursuant to Rule 11(f).  
¶ 17.       Although the
court asked petitioner if he understood the charges against him and, in
connection with some charges, whether he understood the alleged factual basis
for the charge, the court never asked him if he admitted the truth of the
allegations, nor whether the State could prove the underlying facts.  The
court never asked him to describe the facts giving rise to the charges in his
own words, and never sought any other admissions from him to support the
conclusion that the guilty pleas had a factual basis.  The court did not
elicit from petitioner any information to support the finding of a factual
basis.  Petitioner confirmed his understanding of the charges but, apart
from the actual guilty pleas themselves, admitted nothing. 
¶ 18.       With respect to
the DUI charge, the trial court did review the facts set forth in the officer’s
affidavit on the record in its colloquy with petitioner.  Likewise, in
connection with the domestic-assault charge, the trial court invited the State
to read from an affidavit supporting the charge.  However, we have held
that although “an affidavit may be a source of facts to support the plea . . . the defendant must
subsequently admit to these facts in the plea colloquy to demonstrate that
there is a sufficient factual basis.”  Yates, 169 Vt. at 27, 726 A.2d at 488.  As noted above, apart from his guilty
plea, defendant admitted nothing.  Although he acknowledged that he
understood the allegations reflected in the charges, he never affirmed that
they were true.  
¶ 19.       The State
emphasizes the pains taken by the trial court to ensure that petitioner
understood the factual and legal basis for the charges against him.  It
argues—and the PCR court concluded—that because the trial court clearly
explained the factual and legal bases for the charges, petitioner indicated he
understood them, and petitioner then pled guilty to those charges,  the
“factual basis” requirement was satisfied.
¶ 20.       This argument
fails for several reasons.  First, it effectively reads the distinct
“factual basis” requirement of subsection (f) out of Rule 11 by suggesting that
a factual basis can be inferred from a knowing and voluntary guilty plea with
no additional inquiry.  If a defendant’s understanding of the facts and
law underlying the charges to which the defendant pleads were tantamount to a
factual basis for the charges, Rule 11(f) and the part of Rule 11(g) requiring
a record of the court’s inquiry into the “accuracy of a guilty plea” would be
superfluous.  Second, it fails to recognize the structure of Rule 11.
 Rule 11 requires that the court, prior to accepting a guilty plea,
apprise a defendant of the nature of the charges, the penalties for such
charges, and the rights a defendant is giving up, and that the court ask about
the voluntariness of the plea.  V.R.Cr.P. 11(c), 11(d).  Rule 11 also requires, in a separate
subsection, that the court make “such inquiry as shall satisfy it that there is
a factual basis for the plea” before entering judgment on that plea.  V.R.Cr.P. 11(f). 
The structure of the rule reinforces that the factual-basis conversation is
distinct from the understanding-the-elements and voluntariness inquiries. 
Third, it ignores our prior guidance that a defendant’s understanding
of the charges and admissions providing a factual basis for the charges
are distinct requirements.  Yates, 169 Vt. at 28, 726 A.2d at 488; In re Kasper, 145 Vt. at 120, 483
A.2d at 610.  We have emphasized that a court must inquire into the
accuracy of the charge to which a defendant pleads by personally addressing the
defendant.  Yates, 169 Vt. at 25, 726 A.2d at 487. 
And we have explained that “[t]he requirement that the record affirmatively
show facts to satisfy each element of the defense is . . . absolute.” 
Miller, 2009 VT 36, ¶ 11. 
Accordingly, we conclude that the guilty plea in this case, entered after a
sufficient explanation of the facts and law supporting the charges against
petitioner, was not, in itself, sufficient to satisfy the requirements of Rule
11(f).
¶ 21.       The State also
argues that petitioner has failed to show prejudice from what the State
describes as a “technical violation.”  We have recently reiterated, “It is
settled law in this state that no prejudice need be shown to collaterally
attack a guilty plea on the grounds that the trial court failed to ascertain that
there was a factual basis for the plea as required by Rule 11(f).”  Id. ¶ 9.  In Miller, we quoted prior
case law, explaining:
[T]he
record must affirmatively show sufficient facts to satisfy each element of an
offense.  The 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.
 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 [Rule] 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.
 
Id.
¶ 11 (quoting In re Dunham, 144 Vt. 444, 451, 479 A.2d 144, 148
(1984)).
 
¶ 22.       For the above
reasons, we reverse the trial 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 plea.
 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[*]
 Because we reverse and award summary judgment to petitioner on the basis
of petitioner’s Rule 11(f) argument, we need not reach his alternate challenge
to the plea colloquy.



