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State v. Phillips

Supreme Court of Vermont

August 10, 2018

State of Vermont
v.
Ernest Phillips

          On Appeal from Superior Court, Washington Unit, Criminal Division Howard E. Van Benthuysen, J.

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

          Jessica Burke of Burke Law, PC, Burlington, for Defendant-Appellant.

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

          CARROLL, J.

         ¶ 1. Defendant Ernest Phillips filed an interlocutory appeal of the trial court's denial of his motion to accept a plea agreement after lengthy litigation in the criminal division concerning defendant's alleged sexual contact with two minors between 2012 and 2014. He argues that the trial court accepted his proposed plea agreement and therefore could not subsequently reject it. In addition, he argues that the trial court's reasons for rejecting the proposed plea agreement are legally invalid. We granted permission for the interlocutory appeal on the following questions: (1) may a defendant waive the right to a direct appeal as a condition of a plea agreement; (2) may a defendant enter a plea to a reduced criminal charge based upon a statute that did not exist at the time of the commission of the original offense; and (3) is the trial court authorized to reject a plea agreement after accepting it. We answer the first question in the affirmative and therefore do not need to reach the second question. The third question is moot because we hold that the trial court never accepted the plea agreement. Accordingly, we remand to the trial court to reconsider whether to accept or reject the plea agreement consistent with this opinion.

         ¶ 2. In November 2012, the Vermont State Police investigated allegations that defendant had sexual contact with two female minors pursuant to a complaint received from a dance school where defendant worked as an instructor. The complaint alleged that defendant had engaged in sexual contact with a seventeen-year-old student and a fifteen-year-old student. The police interviewed only the first alleged victim, who denied any sexual relationship with defendant. Thereafter, the investigation became inactive.

         ¶ 3. In 2016, during a background check investigation, the first alleged victim admitted that she had not been truthful with the police during the initial 2012 investigation. She subsequently told the police that she had in fact had sexual contact with defendant and provided the name of the second alleged victim. Police interviewed the second alleged victim, who asserted that she had also had sexual contact with defendant during the period in question. After obtaining a warrant, police recorded a phone call between the first alleged victim and defendant. During the call, the first alleged victim asked defendant whether she should "lie to [the police] all over again." Defendant advised her to "stick with the story you had before." The State charged defendant on April 13, 2016, with four counts of sexual assault of a minor under 13 V.S.A. § 3252(c) and two counts of sexual exploitation of a minor under 13 V.S.A. § 3258(c).

         ¶ 4. On December 16, 2016, the charges were amended to one count of sexual assault of a minor under 13 V.S.A. § 3252(c), one count of sexual exploitation of a minor under 13 V.S.A. § 3258(c), and one count of lewd or lascivious conduct with a child under 13 V.S.A. § 2602. Nearly a year later, on October 27, 2017, the parties negotiated a plea agreement stipulating that defendant plead guilty to two counts of prohibited conduct under 13 V.S.A. § 2601a(a), in lieu of the counts under §§ 3252(c) and 3258(c), in exchange for dismissal of the third charge under 13 V.S.A. § 2602 and a recommended deferred sentence of three years, under certain probation conditions.[1] That same day, the parties informed the trial court of the proposed plea agreement during a status conference. The parties also explained in chambers that the alleged victims opposed the plea agreement. At the end of the status conference, the trial court indicated that the next hearing may be a combined change of plea and sentencing hearing and kept the notice of plea agreement, deferred sentence, and probation order. The trial court also informed the second alleged victim's attorney of the impending hearing.

         ¶ 5. At the ensuing hearing, the court suggested that a condition be added to the plea agreement that defendant "not engage in teaching activities with females under the age of eighteen." Defendant refused to accept this additional condition, believing that it would preclude him from teaching in any facility where women under the age of eighteen were present. The court insisted that the condition was necessary to its acceptance of the plea agreement and stated that, given defendant's reluctance, the plea agreement was not accepted. Defendant subsequently agreed to the condition upon clarification that it would only prevent him from teaching classes containing women under the age of eighteen, but not preclude him from teaching other individuals in a facility where women under the age of eighteen may otherwise be present. The State approved of the condition.

         ¶ 6. The court then began a colloquy with defendant under Vermont Rule of Criminal Procedure 11.[2] The trial court interrupted the colloquy to express its doubts that defendant could plead guilty under 13 V.S.A. § 2601a, given that the statute did not exist at the time of defendant's alleged wrongful conduct.[3] Defendant asserted that this would not be a problem given that his alleged conduct was proscribed by a different statute at the time. The court then suggested bypassing any potential problem by having defendant waive his right to appeal or petition for post-conviction relief, thus insulating the case from appellate review.

         ¶ 7. The trial court asked defendant whether defendant was agreeing to waive appeal of the ex post facto issue; defendant confirmed that he was. The trial court explained the nature of post-conviction relief and asked the defendant if he understood the implications of an appeal; defendant affirmatively confirmed his understanding of these procedures. The trial court repeatedly asked defendant if he wished to waive his right to appeal; each time, defendant responded in the affirmative. When asked by the trial court whether he "underst[ood] what that means," defendant replied, "I do." When asked by the trial court whether he was "doing that freely and voluntarily," defendant responded, "[y]es, I am."

         ¶ 8. After consulting with his lawyer during a recess, defendant indicated his desire to proceed with the plea agreement. The court accepted defendant's guilty pleas to both counts of prohibited conduct contained in the plea agreement and indicated that it would "enter judgments of guilty on both [counts]." The third charge was dismissed.

         ¶ 9. The court then heard statements from both alleged victims, read by their representatives, condemning the plea agreement and expressing a strong desire that the case go to trial. The second alleged victim's attorney indicated that neither he nor his client were part of the plea negotiations. When asked by the court to comment, the State explained that although victims have a statutory right to be heard at sentencing, "[t]hey do not have any rights to be involved in plea negotiations." The court asked defendant whether he had "any other argument as to sentencing," to which defendant's attorney replied, "[n]o, we'd just ask the Court to adopt the agreement." The court then expressed its doubts as to whether recent amendments to 13 V.S.A. § 5321 had been satisfied, which require, among other things, that prosecutors involve victims throughout the plea agreement negotiation process. The court stated that the alleged victims, despite both being represented by counsel, had not been fully involved in the process of crafting the plea agreement or proposed probation conditions, and had not otherwise been involved or consulted in the negotiation process. The court clarified that it was "not saying that it will or will not accept the plea agreement, but [it] [was] saying that . . . a brief period is required to allow the prosecutor's office . . . to fully consult with the victims about the proposed probation conditions." The court ended the hearing stating that the case would be resolved shortly with "either an acceptance of the plea agreement and a sentencing under the plea agreement to the deferred sentence or some other outcome . . . ."

         ¶ 10. The trial court and prosecutor signed and dated the second draft of the notice of plea agreement on November 1, 2017.[4] Defendant and his attorney both signed and dated the agreement on November 9, 2017. All parties, including the trial court, signed and dated the deferred sentence and probation order form on November 9, 2017.

         ¶ 11. A week later, on November 16, 2017, defendant filed a motion to accept the plea agreement. Nearly a month later, on December 8, 2017, defendant filed a motion to enforce the plea agreement. The trial court denied both motions, instead issuing an order rejecting the plea agreement and expressing doubt that a defendant could either waive the right to appeal or plead guilty under a statute that did not exist at the time of the alleged criminal conduct. Defendant subsequently filed a motion in the trial court seeking interlocutory appeal on three grounds: (1) the trial court accepted the plea agreement and could not thereafter reject it; (2) the trial court erred in determining that a defendant cannot waive the right to appeal as a condition of entering into a plea agreement; and (3) the trial court erred in determining that a defendant may not plead guilty under a statute that did not exist at the time of the alleged offense. The trial court issued an order granting interlocutory appeal on the latter two issues. On the first issue, the trial court denied the request for interlocutory appeal, finding that it had "made it clear under Rule 11 that it was uncertain about and reserving on the acceptance of the plea agreement." This Court granted interlocutory appeal on all three issues identified by defendant.

         ¶ 12. Defendant now raises three arguments: (1) the trial court's grounds for rejecting the plea agreement were legally incorrect; (2) the trial court accepted the plea agreement by, among other things, accepting the defendant's guilty pleas and signing the deferred sentencing order and the notice of plea agreement; and (3) the court, having accepted the plea agreement, could not rescind its acceptance by subsequent written order. The State concedes the validity of defendant's first argument. But because the issues implicated in this argument are likely to arise again, we nonetheless briefly address it.

         ¶ 13. The trial court's rejection of the proposed plea agreement rested on two grounds: first, that defendant could not waive his general right to appeal as a condition of the plea agreement; and second, that defendant could not plead guilty under 13 V.S.A. § 2601a, given that the statute did not exist at the time of defendant's alleged conduct. On the former point, defendant argues that "it is universal practice in Vermont to waive the right to direct appeal following a guilty plea," and furthermore that such a waiver is explicitly authorized by our holdings in In re Torres, 2004 VT 66, 177 Vt. 507, 861 A.2d 1055 (mem.), and State v. Hance, 157 Vt. 222, 596 A.2d 365 (1991). On the latter point, defendant argues that there is no Ex Post Facto Clause issue in this case because the statute under which defendant pleaded guilty provided ...


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