On Appeal from Superior Court, Addison Unit, Civil Division. Robert A. Mello, J.
Matthew Valerio, Defender General, and Dawn Matthews, Prisoners' Rights Office, Montpelier, for Petitioner-Appellant.
Dennis M. Wygmans, Addison County Deputy State's Attorney, Middlebury, for Respondent-Appellee.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] In this post-conviction-relief (PCR) proceeding, petitioner Derrick Brown appeals the decision of the Civil Division of the Addison Superior Court granting summary judgment to the State based on its determination that the criminal court complied with Vermont Rule of Criminal Procedure 11(e)(4) in deviating from the original plea agreement. We affirm.
[¶2] The following facts are undisputed. In 2003, petitioner pleaded guilty to one count of aggravated sexual assault of a minor in violation of 13 V.S.A. § § 3252, 3253 and one count of lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602. Petitioner agreed to sentences of three-to-ten years, all suspended, with one year to serve on the sexual-assault charge, and two-to-five years, all suspended, with one year to serve on the lewd-and-lascivious-conduct charge. In total, petitioner agreed to a five-to-fifteen-year split sentence, with two years to serve, as well as the imposition of sex-offender probation conditions. Petitioner and the criminal court engaged in a colloquy, and the court accepted petitioner's guilty plea but reserved final sentencing until after the release of the presentence investigation report (PSI).
[¶3] Prior to sentencing, petitioner's attorney moved to withdraw as counsel. At the motion hearing, petitioner's attorney explained that petitioner did not trust him and would not communicate with him. Petitioner told the court that his attorney did not return his phone calls, but he could not remember any other reasons for his dissatisfaction. The court denied the motion and directed petitioner and his attorney to attempt a reconciliation. At the sentencing hearing, the court rejected a second motion to withdraw by petitioner's attorney, stating that petitioner had not made a good-faith effort to repair the relationship and that his dissatisfaction with his counsel was not substantive.
[¶4] During sentencing, the criminal court reviewed the PSI, which differed from the original plea agreement in two important aspects. First, the PSI recommended a three-to-twenty-year straight sentence instead of a five-to-fifteen-year split sentence. Second, the report recommended three additional probation conditions requiring that petitioner: (1) not use or possess pornographic material; (2) not possess any photographs of the victim or any male or female under the age of sixteen; and (3) allow his probation officer, or other corrections personnel, permission to
search his residence and seize any nonprescription drugs, alcohol, pornography, or erotic material. The State acknowledged that these conditions were not part of the original plea agreement and stated, " I suppose, in theory, if the court was not willing to accept the plea agreement without those conditions ... then that would be a change in the plea agreement and the defendant would have a right to withdraw from it."
[¶5] Counsel for petitioner informed the court that if the sentence otherwise conformed to the original plea agreement then petitioner would have no objections to the special probation conditions recommended in the PSI. The court questioned petitioner, his counsel, and the author of the PSI to verify that the recommendations had been explained to petitioner and that he understood them. The court then directly addressed petitioner:
Court: And do you [petitioner] have any objection to any of these conditions ...