176 A.3d 489 (Vt. 2017), 16-142, In re Bridger

Docket Nº16-142
Citation176 A.3d 489, 2017 VT 79
Opinion JudgeSKOGLUND, J.
Party NameIN RE Anthony BRIDGER
AttorneyMatthew F. Valerio, Defender General, and Jill Paul Martin, Appellate Defender, Montpelier, for Petitioner-Appellant. Rosemary M. Kennedy, Rutland County State’s Attorney, Rutland, for Respondent-Appellee.
Judge PanelPRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ. DOOLEY, J., concurring. EATON, J., dissenting.
Case DateAugust 25, 2017
CourtSupreme Court of Vermont

Page 489

176 A.3d 489 (Vt. 2017)

2017 VT 79


No. 16-142

Supreme Court of Vermont

August 25, 2017

Page 490

On Appeal from Superior Court, Rutland Unit, Civil Division, Mary Miles Teachout, J.

Matthew F. Valerio, Defender General, and Jill Paul Martin, Appellate Defender, Montpelier, for Petitioner-Appellant.

Rosemary M. Kennedy, Rutland County State’s Attorney, Rutland, for Respondent-Appellee.

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



[¶ 1] Petitioner Anthony Bridger appeals the trial court’s order granting summary judgment to the State on his petition for post-conviction relief (PCR). He argues that his guilty-plea colloquy did not satisfy Vermont Rule of Criminal Procedure 11(f). We agree and so reverse and remand.

[¶ 2] The record indicates the following. In July 2009, petitioner was charged in three counties— Bennington, Windham, and Rutland— with committing numerous burglaries. Petitioner pled guilty in the Bennington and Windham cases before the Bennington Criminal Division in September 2009. These cases were then transferred to the Rutland Criminal Division for purposes of joining the pending Rutland matter and for sentencing. In February

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2010, petitioner pled guilty before the Rutland Criminal Division to sixteen counts of burglary in the Rutland docket pursuant to a plea agreement. The remaining Rutland charges— nine counts of grand larceny and eight counts of petit larceny— were dismissed. In addition to an oral Rule 11 colloquy, petitioner signed a written waiver of his rights; he also signed restitution orders. At the sentencing hearing, the State noted that petitioner had cooperated with police and provided them with a full and complete confession. The court sentenced petitioner to six-to-twenty-years on the Rutland charges, and eighteen-months-to-five-years on the transferred Bennington dockets, to be served concurrently with the Rutland counts.

[¶ 3] In August 2015, petitioner filed a PCR petition, challenging the sufficiency of the Rutland Criminal Division’s plea colloquy under Rule 11(f).[1] Rule 11(f) provides that " [n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." Petitioner argued that he was entitled to summary judgment because he did not admit to any facts, and the court’s colloquy on this point was " unlawfully sparse." The State opposed the motion and filed a cross-motion for summary judgment in its favor.

[¶ 4]. The PCR court granted summary judgment to the State, relying on the following record from the change-of-plea hearing. At the hearing, the sentencing court discussed each burglary charge with petitioner, including the elements of the charges, the dates of the alleged crimes, the names of the victims, and the maximum penalty for each charge. The court described the rights that petitioner would be giving up by pleading guilty. Petitioner indicated that he understood the information provided to him by the court. The colloquy also included the following exchange: THE COURT: Do you agree that the affidavit of the [Vermont State Police] troopers that were— the affidavit— numerous affidavits, provide a factual basis to establish each of the essential elements of each of the charges?


THE COURT: The Court will find that there is a factual basis.

The affidavits, which are part of the trial court record, recite, among other things, the victims’ complaints to police and petitioner’s confession to committing over twenty burglaries, including those charged. The affidavits set out petitioner’s detailed description to police of various facts related to the burglaries, including the layout of the homes and the items that were stolen.

[¶ 5] Based on this record, the PCR court concluded that the sentencing court did not violate Rule 11(f). In its analysis, the PCR court first noted that, to satisfy Rule 11(f) under this Court’s precedent, the record must " ‘affirmatively show sufficient facts to satisfy each element of an offense’ " ; the sentencing court must directly inquire into the factual basis of the plea; and the defendant must " ‘admit to and possess an understanding of the facts as they relate to the law for all elements of the charge or charges to which the defendant has pleaded.’ " In re Bridger, 475-8-15 Rdcv, slip op. at 2, 2016 WL 9459781 (Vt. S.Ct. Mar. 31, 2016) (quoting In re Stocks, 2014 VT 27, ¶¶ 14, 21, 196 Vt. 160, 94 A.3d 1143). The PCR court then stated

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that, under State v. Cleary and State v. Morrissette, " substantial compliance" with Rule 11(f) was sufficient and that a colloquy with a defendant who stipulates to the factual basis of the plea substantially complies with Rule 11(f). State v. Cleary, 2003 VT 9, ¶¶ 15, 29, 175 Vt. 142, 824 A.2d 509 (" When Rule 11 violations are alleged, we require only substantial compliance with the requirements of the rule." (citing State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1092-93 (1999) (mem.), overruled by In re Manosh, 2014 VT 95, ¶ 23, 197 Vt. 424, 108 A.3d 212)).

[¶ 6]. Here, the sentencing court asked petitioner if he " agree[d] that the ... affidavits provide a factual basis to establish each of the essential elements of each of the charges," and petitioner answered " yes." The PCR court rejected petitioner’s contention that his " yes" should be interpreted as something less than an admission of the truth of the facts set forth in those affidavits. The PCR court observed, moreover, that the burglary charges were not factually complex offenses that required a careful clarification as to what specific facts satisfied specific necessary elements of each offense.

[¶ 7] The PCR court rejected petitioner’s assertion that this case was like Stocks, where the petitioner acknowledged only that he " understood" the State’s allegations reflected in the charges against him, but never affirmed that they were true. 2014 VT 27, ¶ 18, 196 Vt. 160, 94 A.3d 1143. Here, petitioner agreed that the affidavits provided a factual basis for each element of each of the charges. The sentencing court had fully advised petitioner of the elements of the offense and reminded him of the name of each of his victims. The PCR court concluded that there was substantial compliance with Rule 11(f) and that the sentencing court had made sufficient inquiry into the factual basis for the plea. The PCR court thus granted summary judgment to the State. This appeal followed.

[¶ 8] Petitioner argues, as he did below, that the sentencing court violated Rule 11(f) because he did not explicitly admit to any facts during the colloquy, including any facts contained in the troopers’ affidavits. He cites Stocks and contends that although he admitted to understanding the factual elements of the charged offenses and admitted that the troopers’ affidavits provided a factual basis for those charges, he did not admit to any of the facts stated in the affidavits. Petitioner further asserts that the sentencing court erred in relying on affidavits to establish the factual basis. Citing State v. Yates, 169 Vt. 20, 27, 726 A.2d 483, 488 (1999), petitioner maintains that an affidavit may provide facts to support a guilty plea only if the defendant subsequently admits to those same facts in the plea colloquy.2

[¶ 9]. To prevail on his PCR petition, petitioner needed to show " by a preponderance of the evidence that one or more fundamental errors rendered his conviction defective." In re Brown, 2015 VT 107, ¶ 9, 200 Vt. 116, 129 A.3d 102 (recognizing that " PCR is a limited remedy" and that petitioner " bears the burden of proving that fundamental errors rendered his conviction defective." (quotation omitted)). We review the trial court’s summary judgment decision de novo using the same

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standard as the trial court. In re Manosh, 2014 VT 95, ¶ 8, 197 Vt. 424, 108 A.3d 212. Summary judgment is appropriate " where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." In re Brown, 2015 VT 107, ¶ 9, 200 Vt. 116, 129 A.3d 102 (quotation omitted); see V.R.C.P. 56(a). We conclude that the PCR court erred when it granted summary judgment in favor of the State and enter summary judgment in petitioner’s favor.

[¶ 10] At the outset, and in light of the increasing number of Rule 11(f) cases being appealed to this Court, we review this Court’s application of Rule 11(f), and clarify precisely what the rule requires.

[¶ 11] Over thirty years ago, this Court explained, " The requirement of [Rule] 11(f) involves an understanding by the defendant that the conduct admitted violates the law as explained to him by the court. Absent this, no matter how perfectly the other parts of Rule 11 have been observed, we cannot find a voluntary plea." In re Dunham, 144 Vt. 444, 451, 479 A.2d 144, 148 (1984). Thus, from the beginning, this Court’s Rule 11(f) jurisprudence has rested on two interrelated suppositions: that the Rule 11(f) inquiry is inextricably connected to the voluntariness of the defendant’s plea and that, to demonstrate that voluntariness, " [t]here must be an adequate factual basis for all elements of the charge developed on the record." See id. at 450, 479 A.2d at 148. Further, we have consistently concluded that an " adequate factual basis" sufficient to demonstrate voluntariness must consist of some recitation on the record of the facts underlying the charge3 and some admission by the defendant to those facts. See, e.g., Yates, 169 Vt. at 27, 726 A.2d at 488 (" [A]n affidavit may be a source of facts to support the plea,...

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