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State v. Fucci

Supreme Court of Vermont

February 13, 2015

State of Vermont
Louis Fucci, Jr.

On Appeal from Superior Court, Windsor Unit, Criminal Division September Term, 2014. Robert P. Gerety, Jr., J.

Michael R. Kainen, Windsor County State’s Attorney, and Robert Liu, Law Clerk (On the Brief), White River Junction, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Maley, Supr. J., Specially Assigned


¶ 1. Defendant pled guilty to two counts of endeavoring to procure or hire another person to commit a felony-first-degree murder-and one count of obstruction of justice by seeking to have an opposing party in a civil lawsuit killed. He appeals his conviction for obstruction of justice by challenging the validity of his guilty plea. He contends that: his conviction is void because the State failed to establish jurisdiction over the matter; the plea was unsupported by a factual basis; and, without establishing that he had the “requisite evil purpose” to obstruct the due administration of justice, his plea was involuntary. We affirm defendant’s conviction.

¶ 2. The relevant alleged fact underlying the State’s prosecution is this: Defendant tried to hire someone to kill an opposing party in a civil lawsuit, but the hiree turned out to be a confidential informant for law enforcement. The State originally charged defendant, in September 2011, with two counts of attempted first-degree murder and two counts of inciting to felony. The State amended its information twice [1] before finally charging defendant with one count of obstruction of justice, in violation of 13 V.S.A. § 3015, and two counts of inciting to felony, in violation of 13 V.S.A. § 7.

¶ 3. On March 15, 2013, defendant was arraigned on the new obstruction of justice charge and pled guilty. [2] The court ordered a sentence of ten-to-fifteen years imprisonment. Although defendant did not object to the substance or form of the State’s factual basis or the court’s plea colloquy during that hearing, defendant filed this appeal.

¶ 4. “A defendant who fails to object to an error during the plea colloquy may obtain reversal only upon a showing of plain error.” State v. Marku, 2004 VT 31, ¶ 22, 176 Vt. 607, 850 A.2d 993 (mem.) (citing State v. Cleary, 2003 VT 9, ¶ 16, 175 Vt. 142, 824 A.2d 509). As noted, defendant raised no objections, so we review for plain error. On questions regarding the scope of jurisdiction, however, our review is de novo. In re Russo, 2013 VT 35, ¶ 11, 193 Vt. 594, 72 A.3d 900.

¶ 5. Defendant first contends that because he did not admit or agree to the location of the charged obstruction of justice-that is, that his efforts to hire a hit man took place within the State of Vermont-the trial court lacked jurisdiction to accept his plea and convict him. Defendant’s argument is procedural, not substantive-he does not contend that the court lacked jurisdiction because the alleged crime actually occurred outside the boundaries of Vermont, but rather that the absence of the alleged crime’s location from the plea-colloquy record deprived the court of jurisdiction. Defendant’s analysis is flawed.

¶ 6. Vermont Rule of Criminal Procedure 11 requires that the plea-colloquy record show “that the elements of each offense were explained to the defendant and that a factual basis for each element was admitted.” In re Kasper, 145 Vt. 117, 120, 483 A.2d 608, 610 (1984); see also In re Stocks, 2014 VT 27, ¶¶ 14-15, ___ Vt. ___, 94 A.3d 1143 (explaining the requirements of Rule 11(f)). The location of the alleged act, however, while essential to jurisdiction, is not an element of the crime of obstruction of justice. See 13 V.S.A. § 3015 (punishing “[w]hoever corruptly... endeavors to obstruct the due administration of justice”); cf. State v. Williams, 137 Vt. 360, 362, 406 A.2d 375, 376 (1979) (rejecting argument that inconsistency between State’s formal charge and State’s proof as to date of alleged act rendered conviction void, and noting that “time of commission is not an essential element calling for precise proof as pleaded”). The strictures of Rule 11(f) therefore do not apply to geographic location, and defendant’s procedural challenge fails.

¶ 7. Defendant next argues that his plea is invalid because the factual basis of the plea colloquy failed to establish that he committed the overt act required for a violation of the obstruction-of-justice statute. “The ‘factual basis’ requirement reinforces the goal of ensuring knowing and voluntary pleas.” Stocks, 2014 VT 27, ¶ 13. It does so by ensuring that “even a plea entered voluntarily without force or threat, and with full understanding of the elements of the charge, the potential penalties, and rights waived, is warranted by underlying facts.” Id. (citations omitted). While no “particular formula [exists] for determining that there is a factual basis for the plea, ” id. ¶ 15, our cases interpret Rule 11(f) to “ ‘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’ ” to which the defendant has pled guilty. Id. ¶ 14 (emphasis omitted) (quoting State v. Yates, 169 Vt. 20, 24, 726 A.2d 483, 486 (1999)).

¶ 8. The omnibus provision of 13 V.S.A. § 3015 requires proof that a defendant “endeavor[ed] to obstruct... the due administration of justice.” The term “endeavored” does not require success in a defendant’s attempt to obstruct justice; a mere effort satisfies that element. State v. Wiley, 2007 VT 13, ¶ 15, 181 Vt. 300, 917 A.2d 501 (citing United States v. Aguilar, 515 U.S. 593, 599 (1995)). Defendant reads Wiley as holding that an “endeavor” is synonymous with an attempt. While we interchanged “endeavor” and either “attempt” or “attempted” a few times in Wiley, we discussed nothing about the actus reus of attempt; thus, we used “attempt” for its ordinary connotation, rather than its special legal meaning, as defined in 13 V.S.A. § 9(a). See id. We acknowledge that other courts have held that the effort necessary to fulfill the actus reus element of the federal obstruction-of-justice statute is less than that for attempt, M. Harrington & B. Schiffelbein, O ...

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