In re Manosh

• Decision Date: 14 August 2014
• Docket Number: No. 13–280.,13–280.
• Citation: 2014 VT 95,108 A.3d 212
• Court: Vermont Supreme Court
• Parties: In re Nick MANOSH.

108 A.3d 212

2014 VT 95

In re Nick MANOSH.

No. 13–280.

Supreme Court of Vermont.

Aug. 14, 2014.

Paul Volk of Blodgett, Watts, Volk & Sussman, P.C., Burlington, for Petitioner–Appellee.

Gregory S. Nagurney, Deputy State's Attorney, Montpelier, for Respondent–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

Opinion

ROBINSON, J.

¶ 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

various rights defendant was giving up by pleading guilty, including the rights to remain silent regarding the charged offense, to have a trial by jury, and to question witnesses testifying against him. The form further states:

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

reversible legal error. The State notes that Vermont Rule of Criminal Procedure 43 permits pleas in misdemeanor prosecutions in a defendant's absence if the defendant signs a written waiver form, V.R.Cr.P. 43(c)(2), and argues that in State v. Morrissette this Court relied heavily on the petitioner's written waiver in holding that the trial court's limited plea colloquy substantially complied with Rule 11. State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1093 (1999) (mem.).

¶ 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.¹ In re Kirby, 2012 VT 72, ¶ 5, 192 Vt. 640, 58 A.3d 230 (mem.).

¶ 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, 89 S.Ct. 1709, 23 L.Ed.2d 274 (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

agreement.” The Rule 11 colloquy is more than simply “a technical litany”; it secures constitutionally protected rights. In re Parks, 2008 VT 65, ¶ 8, 184 Vt. 110, 956 A.2d 545.

¶ 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).² Rule 43 requires that a defendant be present in court for various proceedings. It contains the following exception:

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.P. 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.P. 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.

Petitioner signed a waiver form and then appeared in court personally to enter his no-contest plea. The court did not exercise its discretion to permit petitioner's absence, and made no findings that appearing in person would impose hardship on defendant. It had no reason to: defendant was there. The sentencing court engaged in a minimal exchange with him before accepting his plea. Under these circumstances, we cannot conclude that petitioner waived his presence pursuant to Rule 43(c) (2).

¶ 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)...