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In re Barber

Supreme Court of Vermont

August 10, 2018

In re Kenneth Barber, Jr. In re Theodore C. Smith, Jr. In re Danielle M. Rousseau In re John Burke

          On Appeal from Superior Court, Rutland Unit, Civil Division, Cortland Corsones, J. (motion for summary judgment); Mary Miles Teachout, J. (final judgment) (2015-451) Mary Miles Teachout, J. (2016-159) Michael J. Harris, J. (2016-241 and 2016-277)

          Matthew F. Valerio, Defender General, and Dawn Matthews, Emily Tredeau and Seth Lipschutz, Prisoners' Rights Office, Montpelier, for Petitioners-Appellants.

          Rosemary M. Kennedy, Rutland County State's Attorney, and John D.G. Waszak, Deputy State's Attorney, Rutland, and David Tartter, Deputy State's Attorney, Montpelier, for Respondent-Appellee.

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

          EATON, J.

         ¶ 1. This case raises the question of whether this Court's decision in In re Bridger, 2017 VT 79, __Vt.__, 176 A.3d 489, regarding the requirements of Vermont Rule of Criminal Procedure 11(f) is retroactive to cases already final on direct review. We conclude that Bridger announced a new criminal procedural rule and that the new rule does not apply to cases where direct review was concluded at the time Bridger was decided. Thus, in those cases, pending or future collateral proceedings must be evaluated under pre-Bridger standards. Under the then-existing standard, we affirm the decisions in In re Barber, In re Smith, and In re Burke, and reverse and remand the decision in In re Rousseau.

         ¶ 2. The four petitioners in these consolidated appeals all pled guilty to criminal offenses between 2005 and 2013. After the appeal period had passed, they initiated collateral challenges to their convictions by filing post-conviction relief (PCR) petitions and argued that the plea colloquies in their criminal cases did not comply with Rule 11(f). The PCR courts denied their petitions and all petitioners appealed. While the appeals of those petitions were pending, this Court decided In re Bridger, 2017 VT 79, holding that Rule 11(f) requires a plea colloquy to include the defendant's personal admission of the facts underlying the offense, that oral or written stipulations cannot satisfy the requirement, and that substantial compliance does not apply in determining whether the colloquy was satisfactory. Petitioners seek to apply the Bridger decision to their cases.[1]

         ¶ 3. The threshold question is whether Bridger applies retroactively to cases where direct review was over, but a collateral proceeding was pending. At the outset, we recognize that Bridger itself was a collateral proceeding insofar as Bridger pled guilty and was sentenced in 2010 but did not challenge the adequacy of the plea until his PCR proceeding in 2015. Nonetheless, this Court reached the substantive issue and applied the holding to Bridger. Shortly thereafter, this Court applied Bridger to another pending collateral proceeding. See In re Gabree, 2017 VT 84, ¶¶ 9-11, __Vt.__, 176 A.3d 1113 (concluding that plea did not comply with Rule 11(f) because petitioner did not independently affirm factual basis as required by Bridger). Retroactivity was not raised by the parties in either appeal and the majority decisions did not address it.[2]

         ¶ 4. Several other PCR appeals, which contained Rule 11(f) challenges, were placed on waiting status pending resolution of the Bridger appeal. After Bridger was decided, the parties filed supplemental briefing and the State argued that Bridger announced a new rule that should not be applied retroactively to these cases on collateral review.

         ¶ 5. This Court has not directly addressed the question of how retroactivity should be resolved for cases on PCR review. The U.S. Supreme Court has held that the prospective or retroactive effect of a decision is a "threshold question" that should be decided at the time of the decision. Teague v. Lane, 489 U.S. 288, 300 (1989). The Court explained that failure to address the issue initially may jeopardize "evenhanded justice" because the holding would not be applied to all similarly situated individuals. Id.

         ¶ 6. We agree that rather than waiting for a subsequent case in which to determine the scope of a rule's effect, retroactivity should be determined as a threshold matter, even if not specifically raised by the parties, and now adopt that procedure. Unfortunately, having not adopted this framework prior to Bridger, this Court did not reach the question at that time and now risks uneven application of the law, which the threshold determination is meant to preclude. Nonetheless, having now adopted this process, we turn to the question of Bridger's retroactive application.

         I. Retroactive Application

         ¶ 7. The "general rule [is] that judicial decisions are applied retroactively." Am. Trucking Ass'ns v. Conway, 152 Vt. 363, 377, 566 A.2d 1323, 1332 (1989). However, this is not always the case when a new rule of law is announced. Several decades ago this Court adopted the common law rule that a change in the law will be given effect to cases on direct review. State v. Shattuck, 141 Vt. 523, 529, 450 A.2d 1122, 1125 (1982). Subsequently, this Court more precisely defined the bounds of retroactivity, explaining that our rule "does not differ in any significant respect from the federal rule."[3] State v. White, 2007 VT 113, ¶ 11, 182 Vt. 510, 944 A.2d 203. In Teague v. Lane, 489 U.S. 288 (1989), and its progeny, the U.S. Supreme Court "laid out the framework to be used in determining whether a rule announced in one of [its] opinions should be applied retroactively to judgments in criminal cases that are already final on direct review." Whorton v. Bockting, 549 U.S. 406, 416 (2007). Under Teague a new rule of criminal procedure is not applied to cases that are final before the new rule is announced unless one of two exceptions applies: (1) the decision is substantive; or (2) the decision is "a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. (quotation and alteration omitted). The Supreme Court was persuaded that applying "rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system." Teague, 489 U.S. at 309 (plurality opinion). This Court has agreed, explaining that "[t]o ensure some finality in criminal cases, we typically apply [] new rules retroactively only to cases on direct review, rather than allow endless collateral attacks on convictions or sentences as new rules emerge, despite courts' compliance with the constitutional standards of the day." White, 2007 VT 113, ¶ 9. Therefore, unless an exception applies, for cases on collateral review, the standard that applied at the time of the original proceeding prevails. Teague, 489 U.S. at 306.

         ¶ 8. The issue of retroactivity was not raised in the trial court because the appeals in these PCR matters were pending at the time that Bridger was decided. Nonetheless, because retroactivity is a question of law to which our review "is nondeferential and plenary," we address it for the first time on appeal. White, 2007 VT 113, ¶ 5. As explained more fully below, we hold that two of Bridger's three central holdings do not apply to these collateral proceedings because they are new rules to which the exceptions to nonretroactivity are inapplicable. A. New Rule

         ¶ 9. Retroactivity depends foremost on whether a new rule of law was announced. Shattuck, 141 Vt. at 528, 450 A.2d at 1124. "For purposes of the retroactivity test, a new rule is one that overrules or significantly alters a prior decision." White, 2007 VT 113, ¶ 9 (citing Teague, 489 U.S. at 301). Although the U.S. Supreme Court has recognized that it can be "difficult to determine when a case announces a new rule," the Court has specified that a new rule results when either "a new obligation" is imposed on the state or federal government or when "the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301. In addition," '[t]he explicit overruling of an earlier holding no doubt creates a new rule.'" Whorton, 549 U.S. at 407 (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)). The Court has further explained that retroactivity of a new rule refers "is not [about] the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought." Danforth v. Minnesota, 552 U.S. 264, 271 (2008).

         ¶ 10. In assessing whether Bridger announced a new rule, the first step is identifying the rule of Bridger. Bridger contained three main holdings regarding the sufficiency of a plea colloquy under Rule 11(f): (1) defendant must personally make an admission of the facts underlying the charge, Bridger, 2017 VT 79, ¶ 21; (2) oral or written stipulations or waivers cannot substitute for an oral admission by defendant, id. ¶ 19; and (3) substantial compliance does not apply to Rule 11(f) challenges, id. ¶ 20.

         ¶ 11. We conclude that Bridger did not establish a new rule with respect to its first holding. Existing precedent interpreting Rule 11(f) required a recitation of the facts underlying the charges and some admission or acknowledgement by defendant of those facts. See Bridger, 2017 VT 79, ¶ 14 (setting forth case law around Rule 11(f)). As Bridger explained, the sole deviation from that rule was State v. Whitney, 156 Vt. 301, 303, 591 A.2d 388, 389 (1991), in which this Court concluded that Rule 11(f) was satisfied when the police affidavit was supplied to both the court and the defendant. This holding was, however, specifically modified in State v.Yates, 169 Vt. 20, 27, 726 A.2d 483, 488 (1999), which clarified that although an affidavit may provide the facts, "the defendant must subsequently admit to these facts in the plea colloquy to demonstrate that there is a sufficient factual basis." Id. at 27, 726 A.2d at 488. Certainly, the dissent in Bridger argued for a different interpretation of Rule 11(f) more consistent with federal case law, but that was not the prevailing Vermont rule prior to Bridger.

         ¶ 12. There was, however, considerable nonuniformity about how defendant's affirmance of those facts could be obtained Existing case law at the time of Bridger's plea colloquy supported the trial court's decision that a defendant's oral or written stipulation to the facts could support compliance with Rule 11(f) See State v Cleary, 2003 VT 9, ¶ 15, 175 Vt 142, 824 A.2d 509 (ruling that Rule 11(f) could be satisfied by defendant's stipulation to facts) Although some cases after Cleary used a more rigorous standard, Cleary was not overruled until Bridger A majority of the Court in Bridger acknowledged that the trial court's decision was consistent with existing case law insofar as this was recognized by the concurring Justice and the two dissenting Justices Bridger, 2017 VT 79, ¶ 28 (Dooley, J, concurring); id. ¶ 59 (Eaton, J., dissenting) (explaining how trial court decision was supported by existing case law). Thus, we conclude that Bridger established a new rule for purposes of the retroactivity test on the question of whether oral or written stipulations or waivers could satisfy the factual basis requirement of Rule 11(f) because the Bridger holding was not "dictated" by prior precedent. See Whorton, 549 U.S. at 416 (explaining that rule is new if it is inconsistent with prior precedent).

         ¶ 13. Similarly, Bridger's holding that substantial compliance does not apply to evaluating claims under Rule 11(f) was a new rule because it was not dictated by existing precedent and required overruling prior case law.[4] The majority itself recognized that this Court's prior cases were not uniform on the question of whether substantial compliance applied in Rule 11(f) cases and explicitly overruled prior case law that allowed such application. Bridger, 2017 VT 79, ¶ 20.

         ¶ 14. Petitioners argue that, even if Bridger clarified the status of the law, it was not a new law for purposes of retroactivity. Petitioners' arguments are not persuasive. Petitioners first rely on Ex parte Evans, 537 S.W.3d 109 (Tex. Crim. App. 2017), in which a concurring opinion concluded that there was a new rule, but it should apply retroactively because the new rule had at one time been the established rule and the change was announced in a collateral review case. Id. at 112 (Keller, J., concurring). This reasoning, advocated by the concurrence and not even adopted by the majority, does not support petitioners' argument that there is not a new rule when there is conflict in the law; the concurrence recognized that a new rule was created, but instead advocated for an exception to the application of retroactivity. Further, even if we were persuaded by the reasoning of this case, it is not applicable on the facts because the new rules identified in Bridger were not at one time the established law.

         ¶ 15. Petitioners also support their argument by citing State v. Brown, 165 Vt. 79, 82-83, 676 A.2d 350, 353 (1996), in which this Court held that its prior decision in State v. DeRosa, 161 Vt. 78, 633 A.2d 277 (1993), did not establish a new rule, but interpreted a statute for the first time. In contrast to Brown, Bridger did not interpret a statute for the first time. See White, 2007 VT 113, ¶ 9 ("[W]hen a decision interprets a statute for the first time, it does not establish a new rule but merely clarifies and enforces prior law."). Bridger was construing the language of Rule 11(f), a rule that has been construed by this Court many times. Bridger changed the law in two ways regarding the interpretation of the rule.

         ¶ 16. As set forth above, given that two of the holdings in Bridger were inconsistent with some existing precedent and that one of those holdings required overruling prior cases, we conclude that Bridger established a new rule on these two points for purposes of retroactivity.

         B. Exceptions

         ¶ 17. Having concluded that Bridger established a new rule, we turn to the question of whether one of the two exceptions applies. The exceptions allow retroactive application if the rule (1) "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Teague, 489 U.S. at 311 (plurality ...


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