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In re Hemingway

Supreme Court of Vermont

May 2, 2014

In re Todd Hemingway

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Franklin Unit, Civil Division. Dennis R. Pearson, J.

Allison N. Fulcher of Martin & Associates, Barre, for Petitioner-Appellee.

Deborah A. Celis, Franklin County Deputy State's Attorney, St. Albans, for Respondent-Appellant.

Present: Reiber, C.J., Dooley, Skoglund, Burgess, and Robinson, JJ. DOOLEY, J., dissenting.


Burgess, J.

[¶1] In this post-conviction relief (PCR) proceeding to vacate convictions based on a change of plea following a plea agreement, the court granted petitioner's motion for summary judgment. The PCR court concluded that the change-of-plea colloquy was fundamentally flawed because the criminal court did not specifically ask petitioner if his plea was voluntary and free of undisclosed coercion or promises as required by Vermont Rule of Criminal Procedure 11. The State appeals, arguing that the colloquy substantially complied with Rule 11, the record demonstrates the plea was voluntary, and petitioner failed to allege actual prejudice. We agree, and reverse and remand.

[¶2] The facts are not disputed. In April 2010, the State and petitioner proposed a plea agreement to resolve several charges pending against petitioner including kidnapping, aggravated domestic assault, domestic assault, obstruction of justice and twenty-seven counts of violating conditions of pretrial release (VCR). Under the agreement, petitioner pleaded guilty to one felony charge of aggravated domestic assault and five VCRs, and the State dismissed the other charges. The criminal court conducted a colloquy. The court explained the rights that petitioner was giving up by entering a guilty plea, delineated the sentencing consequences of the plea and established, and petitioner admitted, a factual basis for the pleas. The court did not directly inquire of petitioner as to whether his plea was coerced or induced by promises outside of the plea agreement. The court did, however, tell petitioner that it would find his guilty plea to be knowing and voluntary and asked if there was anything he wanted to say to the court before it did so -- to which petitioner said " no." In accordance with the agreement, the court sentenced petitioner to five-to-fifteen years, all suspended with probation except for forty days to serve.

[¶3] In September 2010, the State filed a violation of probation (VOP) complaint against petitioner. In May 2011, after a hearing, the court found that petitioner violated his probation. The court revoked probation and imposed the underlying sentence to serve.

[¶4] In the course of the VOP hearing, petitioner's attorney discussed the background of the plea agreement and petitioner's dissatisfaction with the State's performance. Counsel represented that petitioner " specifically negotiated in the plea agreement that he would not abuse or harass" his wife " but he could have contact," and that the prosecution and petitioner were " led to believe" by the Department of Corrections (DOC) " that he would ... be released after forty days in time for his daughter's birthday." Instead, said counsel, DOC kept petitioner past his expected release date because of another unrelated underlying sentence. Moreover, counsel continued, because of the nature of petitioner's conviction, DOC would not release defendant before he complied with a domestic-violence program condition that he not contact his wife. These points were raised, not only in defense against the VOP, but in support of petitioner's contemporaneous pro se motion to withdraw his plea in which he confirmed that he " took the plea agreement" presuming that " he would be released before his daughter's first birthday, and also would be able to have contact with his wife and other child." [1]

[¶5] In September 2011, six months later, petitioner filed for PCR. Petitioner moved for summary judgment, arguing that because the trial court did not expressly ask petitioner whether any threats or promises had been made beyond the written agreement, the plea colloquy was inadequate as a matter of law. See V.R.Cr.P. 11(d) (requiring court to inquire of defendant in open court whether plea " is voluntary and not the result of force or threats or of promises apart from a plea agreement" ). Petitioner alleged that this was not a technical violation, but a fundamental flaw requiring reversal without proof of prejudice. Petitioner presented his motion for summary judgment as a pure legal question, which required no evidentiary hearing. He explicitly preserved the other issues raised in his original PCR petition. The State cross-moved for summary judgment, arguing that the court substantially complied with Rule 11, that petitioner's post-plea representations in court confirmed voluntariness, and that petitioner's failure to claim any prejudice was fatal to his claim.

[¶6] Based on the pleadings, the PCR court ruled that the criminal court's failure to engage petitioner expressly on the topic of voluntariness was fundamental error. The court relied upon the holding of In re Parks, 2008 VT 65, 184 Vt. 110, 956 A.2d 545, an appeal from a denial of a PCR challenge to a guilty plea accepted by a trial court that failed to follow any part of Rule 11 whatsoever. On those facts and absent any information called for by Rule 11, the Court in Parks vacated the plea, citing a line of direct appeal cases -- not PCR cases -- " holding Rule 11 violations to be plain error regardless of a showing of actual prejudice," based on the " failure to satisfy any of the core objectives of Rule 11" by the respective change-of-plea courts. Id. ¶ 14. Borrowing from Parks, the PCR court here ruled that failure to inquire explicitly into voluntariness was core Rule 11 error regardless of actual prejudice, and entered judgment in his favor. The State appeals.

[¶7] Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. V.R.C.P. 56(a). On appeal, this Court applies the same standard as the trial court, viewing the facts in the light most favorable to the nonmoving party. In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. " Post-conviction relief is a limited remedy, intended to correct fundamental errors in the judicial process." In re Kirby, 2012 VT 72, ¶ 9, 192 Vt. 640, 58 A.3d 230 (mem.). In a PCR proceeding, the petitioner has the burden of proving that " fundamental errors rendered his conviction defective." In re Dunbar, 162 Vt. 209, 211-12, 647 A.2d 316, 319 (1994) (quotation and citation omitted).

[¶8] Generally, post-conviction relief is not available for " technical or formal violations of Rule 11." In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113 (1997). Substantial, rather than exact, compliance with Rule 11 is usually sufficient to achieve essential fairness and avoid reversible error. Parks, 184 Vt. 110, 2008 VT 65, ¶ 12, 956 A.2d 545. In post-appeal PCR cases subject to evidentiary hearings, the general rule is also that petitioners complaining of Rule 11 noncompliance must show that the trial court's failure to adhere to Rule 11 was prejudicial in fact. Id. ¶ 11; see State v. Cleary, 2003 VT 9, ¶ 20, 175 Vt. 142, 824 A.2d 509 (explaining that review of Rule 11 challenge in a PCR " places upon the petitioner the additional burden of demonstrating prejudice" ); United States v. Timmreck, 441 U.S. 780, 783-85, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (holding that in a collateral attack on conviction defendant has burden of showing court violated Rule 11 and that there was actual prejudice). This is in keeping with the overall purpose of Rule 11. " [W]e will not allow a procedural oversight to frustrate a plea where the court's substantial compliance with the rule affords the defendant fair and just process." Parks, 184 Vt. 110, 2008 VT 65, ¶ 11, 956 A.2d 545 (quotation omitted); see also State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1092 (1999) (mem.) (upholding guilty plea without literal compliance with Rule 11, where trial court relied on waiver forms executed by defendant and defendant's statements that he understood the forms and had no questions regarding his plea).

[¶9] As a predicate matter, it should be noted that application of the direct appeal " plain error" standard in Parks, relied on by the PCR court as well as the dissent in this case, is an exception to the general rule that PCR success depends on proof of actual prejudice resulting from a claimed procedural irregularity.[2] In Parks, presented with an appeal from denial of PCR from a procedurally flawed guilty plea based on a record of nothing more than a change-of-plea colloquy utterly devoid of any Rule 11 process, this Court analogized to plain error analysis. 2008 VT 65, ¶ 14. This was because, as with a direct appeal from a record empty of adherence to even one of the Rule 11 constitutional standards, it was impossible to know if the defendant understood the charges against him, or to know " with any confidence that defendant understood the legal consequences of his plea agreement and willingly entered into it," or whether he waived an apparent or arguable violation of the double jeopardy clause. Id. ¶ ¶ 13-19.[3]

[¶10] We disagree with the PCR court's conclusion that failure to explicitly inquire into the voluntariness of petitioner's plea cannot be distinguished from the wholesale Rule 11 noncompliance in Parks under the circumstances of this case. The change-of-plea colloquy in Parks failed not only to review voluntariness, but failed to include any of the warnings and confirmations necessary for a valid plea under Rule 11 such that the total noncompliance " undermine[d] confidence in the outcome of the proceedings and thus was plain error." Id. ¶ 15 (quotation omitted). Parks found prejudice per se upon the " trial court's failure to satisfy any of the core objectives of Rule 11." Id. ¶ 14 (emphasis added). No such absolute failure occurred here.

[¶11] The PCR court treated the single omission of not directly asking about voluntariness as tantamount to ignoring the rule altogether since one of the " core objectives" of Rule 11 is to ensure guilty pleas are free of coercion. Insisting on such a literal adherence to the rule, however, especially in the face of other facts supporting a countervailing claim of voluntariness, departs from our case law upholding substantial compliance with Rule 11 and requiring the petitioner to prove prejudice. The PCR court's overbroad application of Parks precluded its due consideration of surrounding circumstances which could support the criminal court's finding of a voluntary change of plea even without the formality of a particular script.

[¶12] To determine the gravity of change-of-plea error, we begin with the requirements of Rule 11. " The underlying purpose of Rule 11 is to ensure that a defendant's plea is both knowing and voluntary." Parks, 184 Vt. 110, 2008 VT 65, ¶ 8, 956 A.2d 545. Because a defendant waives important rights by entering a plea agreement, the trial court is required to engage in a discussion with the defendant to ensure that the defendant fully understands the plea and its consequences. Id. Rule 11(c) requires the court to address the defendant personally and determine that he or she understands the nature of the charges; the minimum and maximum sentences; the rights to plead not guilty, remain silent, confront adverse witnesses and have a jury trial; and that those rights are waived by a plea allowing for conviction. V.R.Cr.P. 11(c)(1)-(4). The parties in this case agree that the court adequately addressed all these requirements during the hearing.

[¶13] Petitioner bases his claim for relief on Rule 11(d), which provides:

Insuring That the Plea Is Voluntary. ... [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 of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting attorney and the defendant or his attorney.

That petitioner's guilty pleas resulted from discussions between his attorney and the prosecutor was evident from the written plea agreement presented to the court. It is undisputed that during the colloquy the criminal court did not specifically ask petitioner if his plea was the result of coercion, threats or promises aside from the plea agreement, but the court did not entirely skip the topic. Towards the end of the colloquy, the following exchange occurred:

THE COURT: All right. So I'll accept your guilty pleas to Counts 6, 7, 8, 9 and 10 in Docket 1441-12-09. To all these charges I'll find that you made a knowing and voluntary waiver of your constitutional rights to a trial, and that there's a sufficient factual basis for each of these charges. On the aggravated domestic assault -- and before I do this, did you want to address the Court on anything ?

(Emphasis added.) Despite the court's invitation to comment, petitioner offered no contradiction to the court's express perception of his plea as voluntary. See Commonwealth v. Furr, 454 Mass. 101, 907 N.E.2d 664, 673 (Mass. 2009) (noting that defendant had numerous opportunities to tell court at plea hearing that he was under ...

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