On Appeal from Superior Court, Addison Unit, Civil Division Robert A. Mello, J.
Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for Petitioner-Appellant.
Ashley A. Hill, Addison County Deputy State's Attorney, Middlebury, for Respondent-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. This case calls upon us to determine the sufficiency of a plea colloquy under Vermont Rule of Criminal Procedure 11. Petitioner appeals from the superior court's order granting judgment to the State on his petition for post-conviction relief (PCR) challenging his third conviction for driving under the influence (DUI) following his sentencing for a fourth DUI offense that had been enhanced by the DUI-3 conviction. He argues that the trial court that accepted the plea agreement that led to his conviction for DUI-3 did not ensure his guilty plea was voluntary and supported by a factual basis as required by Vermont Rules of Criminal Procedure 11(d) and 11(f). As relief, he seeks an order vacating the DUI-3 conviction. We conclude that the plea colloquy for the DUI-3 was inadequate to establish the factual basis required by Rule 11(f), but that our established law does not provide for an order vacating the DUI-3 conviction. Because the remedy for the improper conviction for the DUI-3 lies in the post-conviction challenge to the sentence for the DUI-4, we reverse and remand with instructions to the trial court to enter a judgment vacating the 2014 sentence for DUI-4 and conduct a resentencing on that charge.
¶ 2. In April 2001, petitioner pled guilty to DUI-3. 23 V.S.A. § 1201. In February 2014, after he was charged with DUI, fourth offense, petitioner filed a PCR petition seeking an order vacating the DUI-3 conviction. He argued that: (1) the change-of-plea court did not establish a factual basis for his plea as required by V.R.Cr.P. 11(f), and (2) the plea-agreement court failed to inquire into the voluntariness of his plea, in violation of Rule 11(d).
¶ 3. The State moved to dismiss the petition for lack of jurisdiction, arguing that petitioner was not at that the time of filing in custody under sentence as a result of the 2001 conviction. On petitioner's request, the PCR court held his motion in abeyance pending the outcome of the proceedings in the DUI-4. Petitioner was found guilty of the DUI-4 offense, and the parties agreed that this PCR petition was ripe for consideration.
¶ 4. The parties agreed that the trial court could rule on the merits on the basis of their pleadings, the court record from the 2001 proceeding, and the transcript of the 2001 change-of-plea hearing. The transcript reflects that at the change-of-plea hearing on April 3, 2001, petitioner was represented by counsel. Through the first phase of the hearing, the court and counsel discussed the proposed plea agreement between defendant and the State and tried to frame it in terms that were acceptable to the court while also meeting the respective parties' goals. Once the court and parties, through counsel, amended the plea agreement, the court engaged petitioner in the following colloquy:
THE COURT: Well, the State has made a charge here. What they're saying in substance is that you were operating a motor vehicle, a Ford truck, on Rotax Road––Rotax Road in Monkton. Now where's the Rotax Road?
THE COURT: Whereabouts? Whereabouts in Monkton is that?
PETITIONER: You know where the Hollow is if you come off Route 7 heading north from here?
THE COURT: Yeah.
PETITIONER: You go all the way through the Hollow and it brings you to Rotax Road.
THE COURT: Oh. And the State claims that alcohol was having some impact on you. A one-vehicle accident. Were you hurt?
THE COURT: And you wanted to go back and get ...