This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Lamoille Unit, Civil Division. 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. SKOGLUND, J., dissenting.
[¶1] 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. 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, 89 S.Ct. 1709, 23 L.Ed.2d 274 (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 ...