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In re Gay

Supreme Court of Vermont

September 20, 2019

In re Jeffrey R. Gay II

          On Appeal from Superior Court, Chittenden Unit, Civil Division May Term, 2019 Robert A. Mello, J.

          Matthew Valerio, Defender General, and Jill P. Martin and Seth Lipschutz, Prisoners' Rights Office, Montpelier, for Petitioner-Appellant.

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

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

          CARROLL, J.

         ¶ 1. Defendant appeals orders denying his motion for summary judgment and granting summary judgment in favor of the State on his petition for post-conviction relief (PCR). He argues that the superior court erred when it concluded that, by pleading guilty to a charge carrying a habitual-offender enhancement, he waived the right to subsequently contest the sufficiency of the pleas in the underlying convictions that made him subject to the enhancement. We affirm.

         ¶ 2. In 2014, defendant pled no contest to obstruction of justice. As part of his plea colloquy with the sentencing court, defendant acknowledged that by changing his plea from not guilty to no contest, he was giving up his right to appeal, which he would have had if he had maintained his not-guilty plea, gone to trial, and been convicted. The court imposed a sentence that was enhanced under Vermont's habitual-offender statute, 13 V.S.A. § 11.[1] Between 2001 and 2006, defendant was convicted of four felonies that enhanced the sentence on the obstruction-of-justice conviction. He pled guilty to two of those convictions-false pretenses and grand larceny-at one proceeding in 2004.

         ¶ 3. In 2018, defendant filed a PCR petition, seeking to vacate the sentence imposed on the 2014 obstruction-of-justice conviction. He argued that he was entitled to a resentencing because his pleas to the charges of false pretenses and grand larceny in 2004 were not made knowingly and voluntarily. Specifically, he alleged that the pleas were deficient because the court failed to elicit from him an admission to the factual basis supporting each of the charges. Defendant argued that without these two prior convictions, his sentence on the obstruction-of-justice conviction should not have been enhanced pursuant to 13 V.S.A. § 11.

         ¶ 4. Defendant filed a motion for summary judgment. His motion relied, in part, on the transcript of the colloquy he and the court engaged in during the 2004 change-of-plea hearing on the false-pretenses and grand-larceny charges. He argued that the colloquy did not satisfy the dictates of In re Stocks, 2014 VT 27, ¶¶ 17, 20. 196 Vt. 160, 94 A.3d 1143 (vacating convictions and determining that plea was not voluntary based on court's failure to elicit admission to facts forming basis for charges, as required by Vermont Rule of Criminal Procedure 11(f)). Defendant urged the court to vacate his 2014 sentence and to impose a sentence no greater than five years to serve.

         ¶ 5. The State opposed defendant's motion for summary judgment and cross-moved for summary judgment. The State argued that it was immaterial whether the colloquy resulting in the 2004 convictions satisfied Rule 11(f) because defendant, by entering a knowing and voluntary plea to obstruction of justice, waived any challenge to the sufficiency of the plea colloquy on the underlying convictions used to enhance his sentence. Because he entered a knowing and voluntary guilty plea to the obstruction-of-justice charge, and the agreed-upon sentence was imposed, defendant was barred from collaterally attacking the validity of the 2004 convictions and had waived all nonjurisdictional defects in that proceeding.

         ¶ 6. The court denied defendant's motion for summary judgment and granted the State's cross-motion for summary judgment. It reviewed the transcript of the 2004 proceeding and ultimately concluded that the change-of-plea colloquy on the false-pretenses and grand-larceny charges suffered from the same deficiencies this Court identified in Stocks.[2] Defendant did not argue that his plea to the obstruction-of-justice charge was not made knowingly and voluntarily. The court then reviewed the transcript of that proceeding and found that it complied with Rule 11(f) and concluded that defendant made his plea knowingly and voluntarily. Finally, the court relied, in part, on In re Torres, 2004 VT 66, ¶ 9, 177 Vt. 507, 861 A.2d 1055 (mem.), to hold that defendant had waived all nonjurisdictional defects in the 2004 proceedings by entering a knowing and voluntary plea to a charge of obstruction of justice and was barred from collaterally attacking the convictions used to enhance his sentence. Defendant appealed.

         ¶ 7. We review the court's summary-judgment decisions de novo, applying the same standard as the trial court. Sabia v. Neville, 165 Vt. 515, 523, 687 A.2d 469, 474 (1996). Summary judgment is appropriate when there are no genuine issues of material fact, and a party is entitled to judgment as a matter of law. V.R.C.P. 56(a).

         ¶ 8. On appeal, defendant attempts to distinguish Torres, arguing that it is inapplicable because, in that case, we addressed only the legality of a conviction that was enhanced by a prior illegal conviction, but not the sentence that was imposed. He further submits that this case is controlled by In re Manning, 2016 VT 53, 202 Vt. 111, 147 A.3d 645. In Manning, we reversed the sentence imposed on a DUI-4 conviction after concluding that the plea colloquy on a prior DUI-3, used to enhance the defendant's sentence on the DUI-4, was inadequate. Id. ¶¶ 18-19. Finally, defendant argues that, at best, these two cases are in conflict and therefore Manning controls as the more recent case.

         ¶ 9. We conclude that Torres is applicable here. In Torres, the defendant filed a PCR petition, claiming that his conviction for second-degree aggravated domestic assault required a prior domestic-assault conviction and that, because he had no such prior conviction, his conviction for second-degree aggravated domestic assault must be vacated.[3] The defendant also claimed that his attorney was ineffective when he failed to investigate the alleged prior conviction and allowed him to plead guilty to the second-degree aggravated domestic assault charge. We acknowledged that the defendant had not previously been convicted of domestic assault-the case had been charged but was later dismissed-but held that the defendant waived his right ...


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