Appeal from Superior Court, Essex Unit, Civil Division March
Term, 2018 Michael R. Kainen, J.
Allison N. Fulcher of Martin & Associates, Barre, for
Tartter, Deputy State's Attorney, Montpelier, for
Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
1. Petitioner Cynthia Pinheiro appeals the superior
court's judgment for the State with respect to her
petition for post-conviction relief (PCR). In her PCR action,
petitioner seeks to set aside her conviction for aggravated
domestic assault on the basis that the plea colloquy was
defective under Vermont Rules of Criminal Procedure 11(c) and
(f) because the trial court failed to identify the mental
element of the crime (that she acted willfully or recklessly)
and to elicit a factual basis supporting that element. We
conclude that the plea colloquy was not substantially
compliant with the requirements of Rule 11(c) and accordingly
2. In September 2014, petitioner pled guilty to one count of
aggravated domestic assault after an incident in which she
shot her ex-boyfriend in the leg. In connection with her
plea, the sentencing court explained to petitioner the plea
agreement and the potential consequences of her plea, and she
affirmed that she wanted to enter into the plea. In response
to questions from the court, petitioner confirmed that she
was able to think clearly, that nobody had made any threats
or promises to her, and that she understood her right to have
a trial. The court reviewed all of the rights petitioner
would be giving up, as well as noting potential collateral
consequences of a conviction, and petitioner affirmed her
understanding and desire to move forward with the plea.
3. In describing what the State would have to prove at a
trial, the court said the State would have to prove that
petitioner had a domestic relationship with the victim, that
she used a deadly weapon to assault him, and that she injured
him. After the State's Attorney amended the charge, the
court explained that the charge alleged that on the occasion
in question, petitioner "was armed with a deadly weapon
and caused serious bodily injury on a family or household
member." The court never advised petitioner of the
mental element of the aggravated domestic assault charge.
4. After the court's explanation, petitioner entered a
guilty plea. The following exchange ensued:
THE COURT: All right. And what is it that you did?
THE DEFENDANT: I was-I thought I was trying to protect
myself, because it was 4 o'clock in the morning and I was
woken up-I take night pills and the dogs were all barking and
I didn't really even see who it was through the door.
[DEFENSE COUNSEL]: Could we stop for a second, please?
THE DEFENDANT: I shot [the victim].
THE COURT: Did you have a-had you had a-was-did he live in