On Appeal from Superior Court, Windham Unit, Civil Division 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. 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 ...