In re Brown

• Decision Date: 14 August 2015
• Docket Number: No. 14–246.,14–246.
• Citation: 129 A.3d 102
• Parties: In re Derrick BROWN.
• Court: Vermont Supreme Court

129 A.3d 102

In re Derrick BROWN.

No. 14–246.

Supreme Court of Vermont.

Aug. 14, 2015.

Matthew Valerio, Defender General, and Dawn Matthews, Prisoners' Rights Office, Montpelier, for Petitioner–Appellant.

Dennis M. Wygmans, Addison County Deputy State's Attorney, Middlebury, for Respondent–Appellee.

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

DOOLEY, J.

¶ 1. In this post-conviction-relief (PCR) proceeding, petitioner Derrick Brown appeals the decision of the Civil Division of the Addison Superior Court granting summary judgment to the State based on its determination that the criminal court complied with Vermont Rule of Criminal Procedure 11(e)(4) in deviating from the original plea agreement. We affirm.

¶ 2. The following facts are undisputed. In 2003, petitioner pleaded guilty to one count of aggravated sexual assault of a minor in violation of 13 V.S.A. §§ 3252, 3253 and one count of lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602. Petitioner agreed to sentences of three-to-ten years, all suspended, with one year to serve on the sexual-assault charge, and two-to-five years, all suspended, with one year to serve on the lewd-and-lascivious-conduct charge. In total, petitioner agreed to a five-to-fifteen-year split sentence, with two years to serve, as well as the imposition of sex-offender probation conditions. Petitioner and the criminal court engaged in a colloquy, and the court accepted petitioner's guilty plea but reserved final sentencing until after the release of the presentence investigation report (PSI).

¶ 3. Prior to sentencing, petitioner's attorney moved to withdraw as counsel. At the motion hearing, petitioner's attorney explained that petitioner did not trust him and would not communicate with him. Petitioner told the court that his attorney did not return his phone calls, but he could not remember any other reasons for his dissatisfaction. The court denied the motion and directed petitioner and his attorney to attempt a reconciliation. At the sentencing hearing, the court rejected a second motion to withdraw by petitioner's attorney, stating that petitioner had not made a good-faith effort to repair the relationship and that his dissatisfaction with his counsel was not substantive.

¶ 4. During sentencing, the criminal court reviewed the PSI, which differed from the original plea agreement in two important aspects. First, the PSI recommended a three-to-twenty-year straight sentence instead of a five-to-fifteen-year split sentence. Second, the report recommended three additional probation conditions requiring that petitioner: (1) not use or possess pornographic material; (2) not possess any photographs of the victim or any male or female under the age of sixteen; and (3) allow his probation officer, or other corrections personnel, permission to search his residence and seize any nonprescription drugs, alcohol, pornography, or erotic material. The State acknowledged that these conditions were not part of the original plea agreement and stated, "I suppose, in theory, if the court was not willing to accept the plea agreement without those conditions ... then that would be a change in the plea agreement and the defendant would have a right to withdraw from it."

¶ 5. Counsel for petitioner informed the court that if the sentence otherwise conformed to the original plea agreement then petitioner would have no objections to the special probation conditions recommended in the PSI. The court questioned petitioner, his counsel, and the author of the PSI to verify that the recommendations had been explained to petitioner and that he understood them. The court then directly addressed petitioner:

Court: And do you [petitioner] have any objection to any of these conditions that he's asking for?

[Petitioner]: Besides if I'm in jail for more than five years, I'm going to get myself killed, no.

Court: Okay. But the specific things that ... we would be adding....

[Petitioner]: I could care less about ... those.

Court: Okay. But I want to make sure that you understand what they are, okay?

[Petitioner]: No pornograph[y]—no pictures of [the] victim or [person] under age sixteen, no weapons or anything like that.

Court: Well, actually weapons isn't one of them but ... you were right on two of the three. The third one is that your probation officer or other people from corrections could search your house to see if you had any drugs, alcohol, pornography and so forth.

[Petitioner]: That is one thing I do have a problem with, is in the original condition when this first started ... alcohol was not one of the conditions.

Court: Okay, so that's the only thing you are objecting to?

[Petitioner]: Yes.

¶ 6. The court then discussed with petitioner his objection to the alcohol condition and ensured that this was the only condition petitioner opposed. Petitioner confirmed that it was. The court then reaffirmed petitioner's assent to the plea agreement. Petitioner stated that he was "willing to do the treatment and everything." The court asked petitioner if he was "asking [the court] to go ahead ... with the deal [he] reached before," to which petitioner responded, "Yes." The court also verified that petitioner understood that if he did not engage in sex offender treatment he may end up serving the entire fifteen-year prison sentence.

¶ 7. Finally, the court stated that it was going forward with the sentence as outlined in the original plea agreement, with the addition of the special probation conditions recommended in the PSI, minus the alcohol condition. Petitioner inquired about the two special conditions, which he felt were contradictory. The court explained the conditions and made sure that petitioner understood them; petitioner confirmed that he did. The court directed the clerk to impose the five-to-fifteen-year split sentence with the two added conditions.

¶ 8. In 2014, petitioner filed his PCR petition, alleging that the criminal court violated Rule 11(e)(4) when it failed to explicitly inform him that he had the right to withdraw his plea after the criminal court imposed the additional probation conditions.¹ The parties filed cross-motions for summary judgment, and the PCR court granted summary judgment for the State, holding that the sentencing court complied with Rule 11 by conducting a thorough colloquy to ascertain petitioner's consent to the additional probation conditions. The PCR court further held that the new conditions did not change the terms of the original plea agreement because that agreement "did not address those conditions." The PCR court concluded that "the [sentencing] court was not required to permit [petitioner] to withdraw because the sentence imposed was consistent with the plea agreement." Petitioner appealed.

¶ 9. The sole issue on appeal is whether the sentencing court violated Rule 11(e)(4) by failing to explicitly inform petitioner of his right to withdraw from his plea agreement after the court imposed additional probation conditions. We review summary judgment decisions de novo under the same standard as the trial court, viewing the facts in the light most favorable to the nonmoving party. In re Hemingway, 2014 VT 42, ¶ 7, 196 Vt. 384, 97 A.3d 896. Summary judgment will be granted "when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Id.; see V.R.C.P. 56(a). On a petition for PCR, the petitioner must establish "by a preponderance of the evidence that one or more fundamental errors rendered his conviction defective." In re Hemingway, 168 Vt. 569, 570, 716 A.2d 806, 808 (1998) (mem.). PCR is a limited remedy, and the petitioner bears "the burden of proving that fundamental errors rendered his conviction defective." Hemingway, 2014 VT 42, ¶ 7, 97 A.3d 896 (quotation omitted).

¶ 10. Rule 11 governs generally the entering of pleas by criminal defendants and provides a process to ensure that defendants entering guilty or nolo contendere pleas do so voluntarily and with full understanding of the consequences. Id. ¶ 12. Rule 11(e)(4) specifically provides the proper procedure the sentencing court must follow when rejecting a plea agreement:

If the court rejects the plea agreement or defers decision upon it, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is or may not be bound by the plea agreement, pursuant to Rule 32(d) afford a defendant who has already pleaded the opportunity to then withdraw his plea, and advise the defendant that if he persists in his plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

See In re Berrio, 145 Vt. 6, 8, 481 A.2d 1057, 1058 (1984) (stating that when court rejects sentence set out in plea agreement, before it imposes greater sentence, it must, "consistent with basic notions of judicial fairness, afford the defendant an opportunity to withdraw his guilty or nolo plea"). When the sentencing court rejects the recommended sentence in the plea agreement, it "draws into question the voluntariness of the plea." State v. Belanus, 144 Vt. 166, 169, 475 A.2d 227, 228 (1984) (quotation omitted).

¶ 11. Petitioner claims that the sentencing court violated Rule 11 when, upon imposing new probation conditions, it failed to advise him personally of his right to withdraw his plea. Petitioner does not dispute that the court sought his consent to the additional probation conditions, but rather he argues that it failed to make an explicit statement to the effect of, "If you want to scrap the whole thing, you have a right to do that." We disagree with petitioner's overly technical reading of Rule 11, as it "exalts ritual over reality." State v. Currier, 171 Vt. 181, 187, 758 A.2d 818, 822 (2000).

¶ 12. In PCR proceedings, we consistently have looked for functional and substantial, rather than precise, compliance with Rule 11. See In re Manosh, 2014 VT 95, ¶ 21, 197 Vt. 424, 108...