2014 VT 95


In re Manosh
(2013-280)
 
2014 VT 95
 
[Filed 14-Aug-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 95

 

No. 2013-280

 

In re
  Nick Manosh


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Lamoille Unit,


 


Civil
  Division


 


 


 


May
  Term, 2014


 


 


 


 


A.
  Gregory Rainville, J.


 

Paul Volk of
Blodgett, Watts, Volk & Sussman, P.C.,
Burlington, for Petitioner-Appellee.
 
Gregory S. Nagurney,
Deputy State’s Attorney, Montpelier, for Respondent-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Robinson and Crawford, JJ.
 
 
¶ 1.           ROBINSON,
J.   The question in this case is whether, in response to a
post-conviction relief (PCR) petition, the court erred in vacating petitioner
Nick Manosh’s 1992 conviction for a misdemeanor count
of driving under the influence (DUI) based on the sentencing court’s failure to
comply with Vermont Rule of Criminal Procedure 11 in taking petitioner’s
no-contest plea.  The State appeals, arguing that the PCR court failed to
take into account petitioner’s written waiver of his Rule 11 rights, and that
the sentencing court’s colloquy substantially complied with Rule 11.  We
affirm.
¶ 2.           The
following facts are undisputed.  On February 3, 1992, petitioner pleaded
no contest to one count of DUI, first offense, in violation of 23 V.S.A. § 1201.
 Petitioner entered this plea after conferring with counsel, a public
defender whom petitioner had met earlier that
day.  Prior to appearing before the sentencing court, petitioner signed a
form entitled “Waiver of Arraignment and Request to Enter Plea.”  The
waiver form states, “I understand that as a defendant in a criminal case I have
certain constitutional and statutory rights.  I understand that I may
plead not guilty to this offense, and that the State would then have to prove
me guilty beyond a reasonable doubt.”  The form lists the various rights
defendant was giving up by pleading guilty, including the rights to remain
silent regarding the charged offense, to have a trial by jury, and to question
witnesses testifying against him.  The form further states:
  No threats or force have been used
against me by anyone to try to make me plead guilty or nolo contendere.  I
plead guilty or nolo contendere of my own choice, freely and voluntarily.
 No promises have been made to me by anyone for the State except those
which are contained in the attached Notice of Plea Agreement.  I agree
that there is a factual basis for my plea of guilty or nolo contendere,
supported by the affidavit.
¶ 3.           During
the proceeding, the sentencing court discussed the factual basis for the DUI
charge with defendant’s lawyer and the state’s attorney and acknowledged
receiving the “waiver of certain rights document” signed by petitioner.
 The court asked petitioner if he understood “what’s been said and what’s
in these documents,” to which petitioner replied “yes.”  The court then
asked if petitioner had “any question about anything,” to which he replied
“no.”  Beyond that brief exchange, the court did not substantively engage
petitioner regarding his right to plead not guilty, his privilege against
self-incrimination, his right to a jury trial, the voluntariness of his plea,
or the factual basis for his plea.
¶ 4.           In
2010, petitioner was convicted of a third DUI, this time a felony third
offense.  He was sentenced to eighteen months to ten years to serve. 
The court relied on the 1992 misdemeanor DUI conviction as one of two predicate
offenses.
¶ 5.           In
November 2012, petitioner filed a PCR petition, arguing that the 1992
sentencing court failed to comply with Rule 11 because it did not ensure that
the plea was voluntary, or personally address petitioner concerning his rights
to plead not guilty, to a trial by jury, to confront witnesses against him, and
against self-incrimination.  After reviewing the transcript of the 1992
sentencing hearing, the PCR court agreed and vacated petitioner’s 1992
conviction.  In vacating the conviction, the PCR court held that the
sentencing court did not comply with Rule 11 because it failed to affirmatively
engage petitioner to determine that the plea was intelligent and voluntary.
 The State appealed.
¶ 6.           The
State argues that the trial court’s failure to consider petitioner’s written
waiver of his Rule 11 rights constitutes reversible legal error.  The
State notes that Vermont Rule of Criminal Procedure 43 permits pleas in
misdemeanor prosecutions in a defendant’s absence if the defendant signs a
written waiver form, V.R.Cr.P. 43(c)(2),
and argues that in State v. Morrissette, this
Court relied heavily on the petitioner’s written waiver in holding that the
trial court’s limited plea colloquy substantially complied with Rule 11.  State v. Morrissette, 170 Vt. 569,
571, 743 A.2d 1091, 1093 (1999) (mem.).
¶ 7.           Petitioner
argues that Rule 43 does not apply here because petitioner appeared personally
in court to enter his plea, see V.R.Cr.P. 43(c)(2),
and Rule 11 does not allow a written waiver form to substitute for the court’s
personally addressing petitioner in open court.  Petitioner distinguishes Morrissette on its facts.
¶
8.          
There are no disputed facts in this case, and on appeal we apply a de
novo standard of review to the lower court’s legal rulings.[1]  In re Kirby,
2012 VT 72, ¶ 5, 192 Vt. 640, 58 A.3d 230 (mem.).
¶
9.          
In Boykin v. Alabama, the U.S. Supreme Court held that a trial
judge could not accept a guilty plea “without an affirmative showing that it
was intelligent and voluntary.”  Boykin v. Alabama,
395 U.S. 238, 242 (1969).  Rule 11(c) and (d) reflects the
standardized procedures Vermont courts must follow in meeting the Boykin
requirements.  Reporter’s Notes, V.R.Cr.P.
11.  Rule 11(c) provides that a court may not accept a plea of guilty or
nolo contendere without first addressing the defendant personally in open court
and informing the defendant of: the nature of the charge; the mandatory minimum
penalty, if any; the maximum possible penalty; the defendant’s right to plead
not guilty; and the rights waived by pleading guilty or nolo contendere,
including the privilege against self-incrimination, the right to a trial by
jury, and the right to confront adverse witnesses.  V.R.Cr.P. 11(c). 
Rule 11(d) states that “[t]he court shall not accept a plea of guilty or nolo
contendere without first, by addressing the defendant personally in open court,
determining that the plea is voluntary and not the result of force or threats
or promises apart from a plea agreement.”  The Rule 11 colloquy is more
than simply “a technical litany”; it secures constitutionally protected
rights.  In re Parks, 2008 VT 65, ¶ 8, 184
Vt. 110, 956 A.2d 545.
¶
10.      
Both subsections (c) and (d) of Rule 11 require the court to address the
defendant personally and in open court.  However, these requirements are
both subject to exceptions found in Rule 43(c).[2]  Rule 43 requires that a defendant
be present in court for various proceedings.  It contains the following
exception: 
In prosecutions
for misdemeanors, the defendant, with the consent of the court, may waive
appearance under Rule 5 in writing and the court, with the written consent of
the defendant and the state’s attorney, may permit arraignment, pleas of
guilty, nolo contendere or not guilty, trial, and imposition of sentence in the
defendant’s absence.
 
V.R.Cr.P. 43(c)(2).  
¶
11.      
The primary question before the Court is whether, in light of Rule 43
and defendant’s written waiver, compliance with the Rule 11 requirement that a
court personally address a defendant in open court is excused in this
case.  A secondary question is whether, if no exception to the Rule 11
requirement of a colloquy in open court applies, the colloquy in this case
substantially complied with Rule 11.
I.
¶
12.      
Rule 43(c)(2) authorizes defendants in
misdemeanor prosecutions to permit the court to accept a plea of guilty or no
contest and impose a sentence in the defendant’s absence.  The Reporter’s
Notes explain that this provision “gives the court discretion to permit absence
when to be present would cause hardships that would outweigh any
advantages.”  Reporter’s Notes, V.R.Cr.P. 43.
¶
13.      
The State does not suggest that petitioner waived his presence in court
in connection with the 1992 plea, or that the sentencing court proceeded in his
absence pursuant to this rule.  Petitioner signed a waiver form and then
appeared in court personally to enter his no-contest plea.  The court did
not exercise its discretion to permit petitioner’s absence, and made no
findings that appearing in person would impose hardship on defendant.  It
had no reason to: defendant was there.  The sentencing court engaged in a
minimal exchange with him before accepting his plea.  Under these circumstances,
we cannot conclude that petitioner waived his presence pursuant to Rule 43(c)(2).
¶
14.      
The State essentially argues that by signing the waiver form in
connection with the 1992 plea, petitioner effectively waived the protections of
the Rule 11 colloquy, even though he did not technically waive his
appearance.  We reject the State’s argument for two reasons.  First,
it expands the scope of Rule 43 significantly beyond the rule’s plain language
and purpose.  Rule 43 addresses the circumstances in which a criminal
defendant is required to be present at a court proceeding.  Although in
some instances a defendant’s waiver of appearance may lead to a waiver of
important rights, the focus of the rule is defendant’s presence, or absence, in
court.  The rule does not purport to directly address waivers of important
rights except to the extent they are incident to a defendant’s absence.
¶
15.      
Rule 43(c)(2) carves out a narrow exception to the requirement that a
defendant be present in the courtroom that allows a court, under limited
circumstances and with the consent of the State and defendant, to exercise its
discretion to proceed in a defendant’s absence.  The suggestion that Rule
43(c)(2) allows a court to accept a defendant’s
written waiver of the rights protected by Rule 11, even when the defendant has
not actually waived presence in court and the court has not exercised its
discretion to allow such a waiver on the basis of hardship, dramatically
expands the effect of Rule 43(c)(2) beyond its plain terms, and beyond the
scope of Rule 43 more broadly. 
¶
16.      
Some states expressly allow defendants charged with certain misdemeanors
to waive, in writing, parts or all of the oral plea colloquy itself.  See, e.g., Ala. R.
Crim. P. 14.4(a) (“In all minor misdemeanor cases, the execution of a form . . . will be sufficient and no
colloquy shall be required.”); Iowa R. Crim. P. 2.8(2)(b) (“The court may, in its discretion and with the approval of
the defendant, waive the above procedures in a plea of guilty to a serious or
aggravated misdemeanor.”).  Insofar as Vermont has keyed its
exception to the Rule 11 requirement of a colloquy in open court to a
defendant’s waiver of personal presence pursuant to Rule 43(c)(2),
instead of to a waiver of the colloquy itself, we conclude that Rule 43(c)(2)
only authorizes a court to accept a plea without personally addressing a
defendant in open court pursuant to Rule 11 when a case meets the Rule 43
requirements—including the requirement that defendant waive presence in court.
¶
17.      
Second, because Rule 11 protects the constitutional rights of defendants
who plead guilty or no contest, we are reluctant to dramatically narrow the
reach of that rule.  If we accepted the State’s argument, courts could, in
every misdemeanor case in which a defendant pleads guilty or no contest,
dispense with personally addressing the defendant to ensure that the plea is
voluntary, that the defendant understands the rights forgone as a result of the
plea, and that the defendant acknowledges a factual basis for the plea. 
Rule 11 does not exempt all misdemeanor cases from the requirement that the
court address the defendant personally in court.  We decline to construe
Rule 43(c)(2) in a way that would effectively create
such an exemption.

 
II.
¶
18.      
Given that the requirement that the court address a
defendant personally in open court applied here, the remaining question is
whether the colloquy in this case substantially complied with Rule 11. 
We have little difficulty in concluding that it did not.  Apart from the
written waiver form, which cannot substitute for the open-court colloquy, and
the actual plea, the only questions the sentencing court actually addressed to
petitioner were whether he understood “what’s been said and what’s in these
documents,” and whether petitioner had “any question about anything.” 
Petitioner answered each of these questions with a single word—a “yes” and a
“no,” respectively.
¶
19.      
We have declined to award post-conviction relief for a failure to comply
with Rule 11 in the absence of prejudice in cases in which the colloquy
substantially complied with the requirements of Rule 11.  See, e.g., In
re Hemingway, 2014 VT 42, ¶ 8, ___ Vt. ___, ___ A.3d ___.  In Hemingway,
we examined an otherwise-exemplary plea colloquy conducted by a sentencing
court that failed to ask petitioner specifically whether his plea was voluntary
and free of undisclosed coercion or promises.  This Court concluded that
the sentencing court’s finding that the plea was voluntary and free of coercion
was supported by the totality of the circumstances, including the facts that
the court did engage in a substantial give-and-take with the petitioner, the
court advised the petitioner of the important constitutional rights he was
waiving, the presence of counsel, and the petitioner’s failure to object to the
court’s finding of voluntariness.  Id. ¶ 15. 
We accordingly held that the PCR court substantially complied with Rule 11 and,
in the absence of prejudice, declined to set aside the conviction.  Id. ¶ 25.
¶
20.      
On the other hand, we have readily set aside convictions for wholesale
Rule 11 noncompliance, even in the absence of a finding of prejudice.  See Parks, 2008 VT 65, ¶ 22.  In Parks,
the sentencing court did not personally address the
defendant at the change-of-plea hearing, except to ask for his plea on the
assault-and-robbery charge; in no way ensured that the defendant understood the
nature of the charges to which he was pleading; did not question the defendant
regarding his understanding of the potential sentence to which he would be
subject; did not determine whether the defendant understood his right to
maintain a plea of not guilty; failed to ensure that the defendant knew and
understood that by pleading nolo he would waive important constitutional rights
that are personal to the defendant, including the right to trial by jury; and
failed to ask the defendant whether he was entering the plea voluntarily. 
Id. ¶ 10.
¶
21.      
This case clearly falls on the Parks end of the spectrum. 
We are not dealing here, as in Hemingway, with an otherwise-thorough
exchange with a defendant in which the court failed to specifically ask one of
the prescribed questions but nonetheless had sufficient grounds for finding
that the plea was voluntary.  In this case, in contrast to Hemingway,
the sentencing court did not make a finding of voluntariness on the record that
we could assess in light of the totality of the circumstances.  As in Parks,
the sentencing court in this case “completely failed to engage in an open
dialogue with the defendant involving a discussion of all of the Rule 11(c) and
(d) elements to the end that the record substantiated that the defendant knew
and understood the full array of legal consequences that attached to his plea agreement.” 
Parks, 2008 VT 65, ¶ 11 (internal quotation
omitted).  The trial court here also did not ask defendant about
the factual basis for his plea.  V.R.Cr.P. 11(f).  The PCR court in this case correctly
concluded that the 1992 sentencing court completely failed to comply with Rule
11, and that petitioner’s 1992 conviction should be vacated on that
basis.  
¶
22.      
The State argues that this case is on all fours with State v. Morrissette.  In that case, a defendant facing a
third DUI charge challenged one of his predicate convictions on the ground that
the Rule 11 colloquy was inadequate.  The defendant had, in the underlying
action, signed a waiver-of-rights form that addressed most of the matters
required in a Rule 11(c) inquiry, as well as a “Notice of Plea Agreement”
form.  At the change-of-plea hearing, the court asked the defendant if he
had examined and understood the waiver of rights form, and the defendant said
that he had.  The court asked the defendant whether he had any questions,
and the defendant said he did not.  On appeal, this Court concluded that
the sentencing court had substantially complied with Rule 11, pointing to the
straightforward nature of the charge, the lack of evidence that the defendant
was not competent to understand his situation, the defendant’s execution of the
waiver forms and written plea agreement, the court’s inquiry confirming that
the defendant understood the documents, and the defendant’s stipulation to the
factual basis for the charge.  170 Vt. at 571, 743 A.2d
at 1093.  
¶
23.      
To the extent that we suggested in Morrissette
that a waiver-of-rights form signed by a defendant can substitute for the
court’s personally addressing a defendant in open court for the purposes of
Rule 11(c), (d) or (f), or that a defendant’s one-word acknowledgment of
signing and understanding the waiver form is a sufficient basis for the court’s
conclusion that the plea is knowing and voluntarily made, we overrule that
decision as inconsistent with the requirements of Rule 11 and our more recent
case law.  See State v. Willard-Freckleton,
2007 VT 67A, ¶ 10, 183 Vt. 26, 949 A.2d 416 (noting that, although we are
generally bound to follow past precedent by the principles of stare decisis, we
will overrule precedent when an earlier decision is simply wrong).
¶
24.      
Rule 11 clearly requires that the court deliver personally, and in open
court, its advice to a defendant concerning the nature of the charge, the
potential penalties, the defendant’s right to plead not guilty, and the constitutional
rights a defendant waives by pleading guilty.  V.R.Cr.P. 11(c).  It
requires that the court’s determination that the plea is voluntary and without
coercion or ancillary promises be based on a colloquy in open court.  Id.
11(d).  It requires that the court address the defendant in connection
with the accuracy of the plea.  Id. 11(f);  see also In re
Stocks, 2014 VT 27, ¶ 15, ___ Vt. ___, ___ A.3d ___.[3]  And it reinforces the above
requirements by expressly requiring a written record of the court’s advice to
the defendant, inquiry into voluntariness, and inquiry into the accuracy of the
plea.  V.R.Cr.P. 11(g).  A court cannot short-circuit the express
requirement of personally addressing a defendant concerning these matters by
relying on a written form signed by the defendant.    
    
Affirmed.

 


 


FOR THE
  COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 
¶ 25.       SKOGLUND, J., dissenting.   The majority rules, as a matter
of law, that if one is present in the courtroom when a judge considers his
plea, a full colloquy must still ensue if the defendant, by his presence, has
failed to actually waive his appearance in court pursuant to Vermont Rule of
Criminal Procedure 43(c)(2).[4] 
The logic of this decision eludes me.  Pursuant to Rule 43, the trial
courts have a longstanding practice of accepting pleas by waiver in certain
misdemeanor cases.  If the waiver form is valid when a defendant is not
present before the court, how can it be invalid if the defendant is present in
the courtroom and the judge supplements the information on the form by asking
the defendant if he understood the forms he signed and if he has any
questions?  This is not “a practical and functional application” of the
requirements of Rule 11, State v. Ploof, 162
Vt. 560, 563, 649 A.2d 774, 776-77 (1994), and strikes me as a mechanical
approach to application of the Rules of Criminal Procedure and the court
processes they satisfy.  I dissent.
¶ 26.       In his request
for post-conviction relief (PCR), petitioner moved to strike his 1992
conviction for driving under the influence, first offense, claiming his plea
and sentence were obtained in an unconstitutional manner that did not comply
with the applicable portions of Vermont Rule of Criminal Procedure 11.  V.R.Cr.P. 11(c),
(d).  While the PCR court found a failure to meet the Rule 11
requirements and struck the 1992 conviction, its decision failed to mention or
consider the fact that petitioner signed a “Waiver of Arraignment and Request
to Enter Plea” form.  The decision was based solely on the transcript of
the 1992 hearing wherein the sentencing court accepted petitioner’s no contest
plea.  There is no analysis of whether the form satisfied the requirements
of Rule 11.  
¶ 27.       Most notably, the
decision failed to mention this Court’s decision in State v. Morrissette, 170 Vt. 569, 743 A.2d 1091 (1999) (mem.),
which, I suggest, is a first cousin to this case.  Of course, to reach its
conclusion that a waiver is invalidated by a defendant’s presence, the majority
overrules our decision in Morrissette, declaring
the decision to be simply wrong.  Ante,
¶ 23.  I suggest that if Morrissette
is wrong, then State v. Delisle, 171 Vt. 128,
758 A.2d 790 (2000), is probably terminal as well.   
¶
28.      
While the majority uses a footnote to dismiss the confusion over what
the PCR court below was actually deciding, I find it an important element of
the analysis.  Ante, ¶ 8 n.1. 
There was no “stipulated record submitted by the parties” that could substitute
for a merits hearing.  And, if the PCR court was deciding a summary
judgment motion, the affidavit of petitioner submitted in response to the
State’s motion for summary judgment can surely be considered self-serving at
best, and is contested by the State.[5] 
So, however the trial court’s decision came about, it contains various facts
that were never admitted into evidence, such as “[t]he public defender
did not advise Petitioner of potential problems with his arrest including the
use of a processing form later deemed unconstitutional[6] and the police’s failure to provide
Petitioner access to an attorney before he submitted to an evidentiary test.”  The
genesis and basis of the court’s decision remains a mystery and should preclude
appeal. 
¶
29.      
But, to continue, in a post-conviction relief challenge, it is the petitioner’s
burden to come forward with objective evidence that his waiver was not knowing
and intelligent.  Delisle, 171 Vt. at
132-33, 758 A.2d at 793-94.  Pretending for the
moment that the court decided this matter as a summary judgment, there are facts
in dispute.  Petitioner relies on statements contained in his affidavit,
made more than twenty years after his waiver.  This cannot be sufficient
to meet his burden.  In In re Stevens, 144 Vt. 250, 255, 487 A.2d
212, 215 (1984) we held that the petitioner’s ad hoc claim that he
misunderstood the rights surrendered by his plea of guilty was insufficient to
meet his burden to produce “objective proof reasonably justifying his mistaken
impression.”  We called his suggestion to accord his persistent claim of
mistaken belief “objective” weight the “most specious of arguments.”  Id.
at 256, 487 A.2d at 215.  We continued, “[n]othing could be more subjective than petitioner’s own
testimony about what he thought, unsupported by reference to specific
circumstances or persons.  We will accord no objective weight to such
testimony.”  Id.  The same should hold true here.  
¶
30.      
At the 1992 hearing, the sentencing court’s inquiries to petitioner were
strikingly similar to those we embraced in Morrissette. 
170 Vt. at 570, 743 A.2d at 1092.  There, the
defendant had also signed a “Waiver of Rights and Request to Enter a Plea” form
and a “Notice of Plea Agreement” form.  And, the defendant appeared before
the court, as did petitioner here.  The Morrissette
court asked the defendant if he had examined the waiver-of-rights form and if
he understood it.  The defendant replied affirmatively.  The court
asked if the defendant had any questions regarding his plea and he said he did
not.  We found that the court had substantially complied with Rule
11.  Id. at 571, 743 A.2d at 1093. 
We did not discount there the executed waiver forms and written plea agreement
and the court’s questions to the defendant regarding his understanding of the
same.  We held the defendant’s plea to be valid.  Id.
¶ 31.       In Delisle, a case decided in 2000, the defendant
argued that the State could not prove that his 1983 plea was knowing and
voluntary.  171 Vt. at 129, 758 A.2d at 791. 
In 1983, the defendant was convicted of misdemeanor DUI in absentia and without
counsel, based upon his signature to a notice-of-plea-agreement form.  The
case record included a letter to the defendant from the court indicating
enclosure of “the approved Plea Agreement and Waiver,” but the file contained no
signed waiver-of-rights form apropos of Rule 43(c)(2). 
Id.  We noted, because the defendant did not appear in court,
“there was no oral Rule 11 colloquy.”  Id.  Yet we affirmed
his conviction based in large part on the presumption of regularity that
attaches to final judgments, “ ‘even when the
question is waiver of constitutional rights.’ ”  Id.
at 131, 758 A.2d at 792 (quoting Parke v. Raley,
506 U.S. 20, 29 (1992)).  We held that the defendant had to “do more than
point to an ambiguous or incomplete record.  He must produce evidence that
his prior plea was invalid.”  Id. at 132, 758
A.2d at 794. 
¶ 32.       The purpose of
Rule 11(c)-(d) is to assure that a plea is knowingly and voluntarily
made.  “Toward this end, we have required a practical application of the
rule ensuring fairness, rather than a technical formula to be followed.”  Morrissette, 170 Vt. at 571, 743
A.2d at 1092.  All we require is “substantial compliance” with the
requirements of the rule.  Id. at 571, 743 A.2d
at 1093.  As we said in Morrissette,
“matters of reality, and not mere ritual, should be controlling.”  Id.
(quotation omitted).  The reality here is that petitioner, represented by
competent counsel, signed a waiver form designed to take the place of a full
colloquy with the judge—a form that specifically informed him of the charges
against him, the maximum sentences allowed for those charges, and his rights,
including all those rights he would give up by pleading no contest.  Then,
the judge asked him if he understood what he had signed and if he had any
questions.  The judge read each charge to petitioner and asked for his
plea.  And, the judge offered him his right to allocution, which
petitioner declined.  How can this not be substantial compliance with the
requirements of Rule 11?  The waiver-of-arraignment form covered all the
rights required in a Rule 11(c) colloquy.  It also specifically addressed
the requirements of Rule 11(d) concerning the voluntariness of his plea and a
stipulation that there was a factual basis for same.  
¶
33.      
This case does not equate to the “wholesale failure” of Rule 11
compliance we discussed in In re Parks, 2008 VT 65, ¶ 10, 184 Vt.
110, 956 A.2d 545.  In Parks, there was absolutely no record
demonstrating that the defendant’s plea and consequent waiver of constitutional
rights was knowing and voluntary; no discussion with the defendant about the
constitutional rights he was waiving in entering into a plea agreement. 
In Parks, the court never addressed the defendant at the change-of-plea
hearing, except to ask for the plea.  That does not resemble in any way
the process afforded petitioner in this case.
¶ 34.       With this
decision, the waiver form contemplated by Rule 43(c)(2)
is worthless and fails to substitute for a full Rule 11 colloquy if the
defendant enters the courtroom.  Only if he stays away from the courtroom
can the waiver form fulfill its function and be relied upon by the court. 

¶ 35.      
I dissent. 
 

 


 


 


 


 


Associate
  Justice

 





[1]
 Whether the PCR court’s decision below constituted a ruling on the merits
based on a stipulated record submitted by the parties or a summary judgment
ruling pursuant to Vermont Rule of Civil Procedure 56(f) is not entirely
clear.  Because the only question before us is the application of the law
to the undisputed facts, our review is de novo in any event.   
 


[2]
 Rule 11 was amended in 2013 to add an explicit cross-reference to Rule 43
as an exception to requiring a plea colloquy.  Reporter’s Notes—2013
Amendment, V.R.Cr.P. 11.  The Reporter’s Notes
explain that the reference to Rule 43 was added to clarify the longstanding
practice of accepting pleas by waiver in certain misdemeanor cases.  Id.
 


[3]
 We note Rule 11(f) because the sentencing court in Morrissette
did not comply with its requirements, further supporting our decision to
overrule Morrissette.  We are not basing
our decision in this case on the 1992 PCR court’s noncompliance with Rule
11(f).
 


[4] 
Citing to the Reporter’s Notes for Rule 43(c)(2), which in turn cite to 3 C.
Wright, Federal Practice and Procedure § 721 (1969), the majority holds
that the court’s discretion to accept a waiver under Rule 43(c)(2) is limited
to those circumstances where to be present would cause hardships that would
outweigh any advantages.  Ante, ¶ 12. 
That concept is absent from Rule 43.  All Rule 43 requires before the
court may give consent to the defendant’s absence is that the waiver be in
writing and have the consent of the defendant and the state’s attorney.


[5] 
Even on appeal the State is confused by the process: “Although the procedural
basis for this determination is not plainly stated in the court’s written
decision, it appears the court relied on Vermont Rule of Civil Procedure 56(f)(3), which permits summary judgment independent of the
motion of either party.”  
 


[6] 
The form was found unconstitutional because it failed to inform individuals of
a twenty-four hour attorney hotline established to ensure that a person could
exercise his or her right to speak with an attorney before deciding whether or
not to submit to an evidentiary test, regardless of income.  State v. Madonna, 169 Vt. 98, 103, 726 A.2d 498, 501 (1999). 
This shortcoming is unrelated to the issues presented in this case.



