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State v. Bowen

Supreme Court of Vermont

August 10, 2018

State of Vermont
v.
Mitchell Bowen

          On Appeal from Superior Court, Rutland Unit, Criminal Division, Thomas A. Zonay, J.

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

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

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

          EATON, J.

         ¶ 1. Defendant appeals his conviction for sexual assault following his guilty plea, arguing that during the plea colloquy the trial court failed to comply with Vermont Rule of Criminal Procedure 11(f) and did not establish a factual basis for the charge. We hold that the standard for reviewing Rule 11(f) challenges in direct-appeal cases is the same as that used for challenges brought in post-conviction relief (PCR) proceedings. Under that standard, we conclude that the colloquy in this case did not comply with the requirements of Rule 11(f), and reverse and remand.

         ¶ 2. In October 2013, defendant was charged with one count of sexual assault on a minor pursuant to 13 V.S.A. § 3253(c). The affidavit submitted in support of the information recited that defendant had engaged in unwanted sex with a thirteen-year-old minor on the playground of a school. Defendant entered a plea agreement with the State whereby he agreed to plead guilty and the State agreed to a capped sentence of two-to-fifteen years. Defendant signed a plea agreement and waiver-of-rights form, agreeing that he had read the affidavit of probable cause and that he agreed there was a factual basis for his plea. At the change-of-plea hearing, the colloquy between the court and defendant included the following exchanges:

THE COURT: The charge is that during August of 2013, you engaged in a sexual act with a child under the age of sixteen and at the time you were not married and the act was consensual-except where you were married to each other and the act is consensual.
The maximum punishment is twenty years, a fine of not more than 10, 000 dollars, or both. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you agree the affidavit of Officer Notte provides facts to establish the elements of the sexual assault charge to which you're entering a plea?
THE DEFENDANT: Yes.
THE COURT: And do you agree that you're pleading guilty because you are, in fact, ...

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