DocketNumber： 2013-280
Judges： Reiber, Dooley, Skoglund, Robinson, Crawford
Filed Date： 8/14/2014
Status： Precedential
Modified Date： 10/19/2024
¶ 1. The question in this case is whether, in response to a post-conviction relief (PCR) petition, the court erred in vacating petitioner Nick Manosh’s 1992 conviction for a misdemeanor count of driving under the influence (DUI) based on the sentencing court’s failure to comply with Vermont Rule of Criminal Procedure 11 in taking petitioner’s no-contest plea. The State ■ appeals, arguing that the PCR court failed to take into account petitioner’s written waiver of his Rule 11 rights, and that the sentencing court’s colloquy substantially complied with Rule 11. We affirm.
¶ 2. The following facts are undisputed. On February 3, 1992, petitioner pleaded no contest to one count of DUI, first offense, in violation of 23 V.S.A. § 1201. Petitioner entered this plea after conferring with counsel, a public defender whom petitioner had met earlier that day. Prior to appearing before the sentencing court, petitioner signed a form entitled “Waiver of Arraignment and Request to Enter Plea.” The waiver form states, “I understand that as a defendant in a criminal case I have certain constitutional and statutory rights. I understand that I may plead not guilty to this offense, and that the State would then have to prove me guilty beyond a reasonable doubt.” The form lists the
No threats or force have been used against me by anyone to try to make me plead guilty or nolo contendere. I plead guilty or nolo contendere of my own choice, freely and voluntarily. No promises have been made to me by anyone for the State except those which are contained in the attached Notice of Plea Agreement. I agree that there is a factual basis for my plea of guilty or nolo contendere, supported by the affidavit.
¶ 3. During the proceeding, the sentencing court discussed the factual basis for the DUI charge with defendant’s lawyer and the state’s attorney and acknowledged receiving the “waiver of certain rights document” signed by petitioner. The court asked petitioner if he understood “what’s been said and what’s in these documents,” to which petitioner replied “yes.” The court then asked if petitioner had “any question about anything,” to which he replied “no.” Beyond that brief exchange, the court did not substantively engage petitioner regarding his right to plead not guilty, his privilege against self-incrimination, his right to a jury trial, the voluntariness of his plea, or the factual basis for his plea.
¶ 4. In 2010, petitioner was convicted of a third DUI, this time a felony third offense. He was sentenced to eighteen months to ten years to serve. The court relied on the 1992 misdemeanor DUI conviction as one of two predicate offenses.
¶ 5. In November 2012, petitioner filed a PCR petition, arguing that the 1992 sentencing court failed to comply with Rule 11 because it did not ensure that the plea was voluntary, or personally address petitioner concerning his rights to plead not guilty, to a trial by jury, to confront witnesses against him, and against self-incrimination. After reviewing the transcript of the 1992 sentencing hearing, the PCR court agreed and vacated petitioner’s 1992 conviction. In vacating the conviction, the PCR court held that the sentencing court did not comply with Rule 11 because it failed to affirmatively engage petitioner to determine that the plea was intelligent and voluntary. The State appealed.
¶ 6. The State argues that the trial court’s failure to consider petitioner’s written waiver of his Rule 11 rights constitutes
¶ 7. Petitioner argues that Rule 43 does not apply here because petitioner appeared personally in court to enter his plea, see V.R.Cr.P. 43(c)(2), and Rule 11 does not allow a written waiver form to substitute for the court’s personally addressing petitioner in open court. Petitioner distinguishes Morrissette on its facts.
¶ 8. There are no disputed facts in this case, and on appeal we apply a de novo standard of review to the lower court’s legal rulings.
¶ 9. In Boykin v. Alabama the U.S. Supreme Court held that a trial judge could not accept a guilty plea “without an affirmative showing that it was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. 238, 242 (1969). Rule 11(c) and (d) reflects the standardized procedures Vermont courts must follow in meeting the Boykin requirements. Reporter’s Notes, V.R.Cr.P. 11. Rule 11(c) provides that a court may not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing the defendant of: the nature of the charge; the mandatory minimum penalty, if any; the maximum possible penalty; the defendant’s right to plead not guilty; and the rights waived by pleading guilty or nolo contendere, including the privilege against self-incrimination, the right to a trial by jury, and the right to confront adverse witnesses. V.R.Cr.P. 11(c). Rule 11(d) states that “the court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or promises apart from a plea
¶ 10. Both subsections (c) and (d) of Rule 11 require the court to address the defendant personally and in open court. However, these requirements are both subject to exceptions found in Rule 43(c).
In prosecutions for misdemeanors, the defendant, with the consent of the court, may waive appearance under Rule 5 in writing and the court, with the written consent of the defendant and the state’s attorney, may permit arraignment, pleas of guilty, nolo contendere or not guilty, trial, and imposition of sentence in the defendant’s absence.
V.R.Cr.R 43(c)(2).
¶ 11. The primary question before the Court is whether, in light of Rule 43 and defendant’s written waiver, compliance with the Rule 11 requirement that a court personally address a.defendant in open court is excused in this case. A secondary question is whether, if no exception to the Rule 11 requirement of a colloquy in open court applies, the colloquy in this case substantially complied with Rule 11.
I.
¶ 12. Rule 43(c)(2) authorizes defendants in misdemeanor prosecutions to permit the court to accept a plea of guilty or no contest and impose a sentence in the defendant’s absence. The Reporter’s Notes explain that this provision “gives the court discretion to permit absence when to be present would cause hardships that would outweigh any advantages.” Reporter’s Notes, V.R.Cr.R 43.
¶ 13. The State does not suggest that petitioner waived his presence in court in connection with the 1992 plea, or that the sentencing court proceeded in his absence pursuant to this rule.
¶ 14. The State essentially argues that by signing the waiver form in connection with the 1992 plea, petitioner effectively waived the protections of the Rule 11 colloquy, even though he did not technically waive his appearance. We reject the State’s argument for two reasons. First, it expands the scope of Rule 43 significantly beyond the rule’s plain language and purpose. Rule 43 addresses the circumstances in which a criminal defendant is required to be present at a court proceeding. Although in some instances a defendant’s waiver of appearance may lead to a waiver of important rights, the focus of the rule is defendant’s presence, or absence, in court. The rule does not purport to directly address waivers of important rights except to the extent they are incident to a defendant’s absence.
¶ 15. Rule 43(c)(2) carves out a narrow exception to the requirement that a defendant be present in the courtroom that allows a court, under limited circumstances and with the consent of the State and defendant, to exercise its discretion to proceed in a defendant’s absence. The suggestion that Rule 43(c)(2) allows a court to accept a defendant’s written waiver of the rights protected by Rule 11, even when the defendant has not actually waived presence in court and the court has not exercised its discretion to allow such a waiver on the basis of hardship, dramatically expands the effect of Rule 43(c)(2) beyond its plain terms, and beyond the scope of Rule 43 more broadly.
¶ 16. Some states expressly allow defendants charged with certain misdemeanors to waive, in writing, parts or all of the oral plea colloquy itself. See, e.g., Ala. R. Crim. P. 14.4(a) (“In all minor misdemeanor cases, the execution of a form . . . will be sufficient and no colloquy shall be required.”); Iowa R. Crim. R 2.8(2)(b) (“The court may, in its discretion and with the approval of the defendant, waive the above procedures in a plea of guilty to a serious or aggravated misdemeanor.”). Insofar as Vermont has
¶ 17. Second, because Rule 11 protects the constitutional rights of defendants who plead guilty or no contest, we are reluctant to dramatically narrow the reach of that rule. If we accepted the State’s argument, courts could, in every misdemeanor case in which a defendant pleads guilty or no contest, dispense with personally addressing the defendant to ensure that the plea is voluntary, that the defendant understands the rights forgone as a result of the plea, and that the defendant acknowledges a factual basis for the plea. Rule 11 does not exempt all misdemeanor cases from the requirement that the court address the defendant personally in court. We decline to construe Rule 43(c)(2) in a way that would effectively create such an exemption.
II.
¶ 18. Given that the requirement that the court address a defendant personally in open court applied here, the remaining question is whether the colloquy in this case substantially complied with Rule 11. We have little difficulty in concluding that it did not. Apart from the written waiver form, which cannot substitute for the open-court colloquy, and the actual plea, the only questions the sentencing court actually addressed to petitioner were whether he understood “what’s been said and what’s in these documents,” and whether petitioner had “any question about anything.” Petitioner answered each of these questions with a single word — a “yes” and a “no,” respectively.
¶ 19. We have declined to award post-conviction relief for a failure to comply with Rule 11 in the absence of prejudice in cases in which the colloquy substantially complied with the requirements of Rule 11. See, e.g., In re Hemingway, 2014 VT 42, ¶ 8, 196 Vt. 384, 97 A.3d 896. In Hemingway we examined an otherwise-exemplary plea colloquy conducted by a sentencing court that failed to ask petitioner specifically whether his plea was voluntary
¶ 20. On the other hand, we have readily set aside convictions for wholesale Rule 11 noncompliance, even in the absence of a finding of prejudice. See Parks, 2008 VT 65, ¶ 22. In Parks the sentencing court did not personally address the defendant at the change-of-plea hearing, except to ask for his plea on the assault- and-robbery charge; in no way ensured that the defendant understood the nature of the charges to which he was pleading; did not question the defendant regarding his understanding of the potential sentence to which he would be subject; did not determine whether the defendant understood his right to maintain a plea of not guilty; failed to ensure that the defendant knew and understood that by pleading nolo he would waive important constitutional rights that are personal to the defendant, including the right to trial by jury; and failed to ask the defendant whether he was entering the plea voluntarily. Id. ¶ 10.
¶21. This case clearly falls on the Parks end of the spectrum. We are not dealing here, as in Hemingway, with an otherwise-thorough exchange with a defendant in which the court failed to specifically ask one of the prescribed questions but nonetheless had sufficient grounds for finding that the plea was voluntary. In this case, in contrast to Hemingway, the sentencing court did not make a finding of voluntariness on the record that we could assess in light of the totality of the circumstances. As in Parks, the sentencing court in this case “completely failed to engage in an open dialogue with the defendant involving a discussion of all of the Rule 11(c) and (d) elements to the end that the record substantiated that the defendant knew and understood the full array of legal consequences that attached to his plea agreement.” Parks, 2008 VT 65, ¶ 11 (internal quotation omitted). The trial court here also did not ask defendant about the factual basis for
¶ 22. The State argues that this case is on all fours with State v. Morrissette. In that case, a defendant facing a third DUI charge challenged one of his predicate convictions on the ground that the Rule 11 colloquy was inadequate. The defendant had, in the underlying action, signed a waiver-of-rights form that addressed most of the matters required in a Rule 11(c) inquiry, as well as a “Notice of Plea Agreement” form. At the change-of-plea hearing, the court asked the defendant if he had examined and understood the waiver of rights form, and the defendant said that he had. The court asked the defendant whether he had any questions, and the defendant said he did not. On appeal, this Court concluded that the sentencing court had substantially complied with Rule 11, pointing to the straightforward nature of the charge, the lack of evidence that the defendant was not competent to understand his situation, the defendant’s execution of the waiver forms and written plea agreement, the court’s inquiry confirming that the defendant understood the documents, and the defendant’s stipulation to the factual basis for the charge. 170 Vt. at 571, 743 A.2d at 1093.
¶ 23. To the extent that we suggested in Morrissette that a waiver-of-rights form signed by a defendant can substitute for the court’s personally addressing a defendant in open court for the purposes of Rule 11(c), (d) or (f), or that a defendant’s one-word acknowledgment of signing and understanding the waiver form is a sufficient basis for the court’s conclusion that the plea is knowing and voluntarily made, we overrule that decision as inconsistent with the requirements of Rule 11 and our more recent case law. See State v. Willard-Freckleton, 2007 VT 67A, ¶ 10, 183 Vt. 26, 949 A.2d 416 (noting that, although we are generally bound to follow past precedent by the principles of stare decisis, we' will overrule precedent when an earlier decision is simply wrong).
¶ 24. Rule 11 clearly requires that the court deliver personally, and in open court, its advice to a defendant concerning the nature of the charge, the potential penalties, the defendant’s right to plead not guilty, and the constitutional rights a defendant
Affirmed.
Whether the PCR court’s decision below constituted a ruling on the merits based on a stipulated record submitted by the parties or a summary judgment ruling pursuant to Vermont Rule of Civil Procedure 56(f) is not entirely clear. Because the only question before us is the application of the law to the undisputed facts, our review is de novo in any event.
Rule 11 was amended in 2013 to add an explicit cross-reference to Rule 43 as an exception to requiring a plea colloquy. Reporter’s Notes — 2013 Amendment, V.R.Cr.R 11. The Reporter’s Notes explain that the reference to Rule 43 was added to clarify the longstanding practice of accepting pleas by waiver in certain misdemeanor cases. Id.
We note Rule 11(f) because the sentencing court in Morrissette did not comply with its requirements, further supporting our decision to overrule Morrissette. We are not basing our decision in this case on the 1992 PCR court’s noncompliance with Rule 11(f).