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In re Pinheiro

Supreme Court of Vermont

May 4, 2018

In re Cynthia Pinheiro

          On Appeal from Superior Court, Essex Unit, Civil Division March Term, 2018 Michael R. Kainen, J.

          Allison N. Fulcher of Martin & Associates, Barre, for Petitioner-Appellant.

          David Tartter, Deputy State's Attorney, Montpelier, for Respondent-Appellee.

          Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 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 reverse.

         ¶ 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 ...

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