Appeal from Superior Court, Rutland Unit, Criminal Division,
Thomas A. Zonay, J.
Tartter, Deputy State's Attorney, Montpelier, for
Allison N. Fulcher of Martin & Associates, Barre, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
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, ...