State v. Morrissette, 98-412.

• Decision Date: 15 November 1999
• Docket Number: No. 98-412.,98-412.
• Citation: 743 A.2d 1091
• Parties: STATE of Vermont v. George MORRISSETTE.
• Court: Vermont Supreme Court

743 A.2d 1091

STATE of Vermont v. George MORRISSETTE.

No. 98-412.

Supreme Court of Vermont.

November 15, 1999.

Motion for Reargument Denied December 14, 1999.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant George Morrissette was charged with operating a motor vehicle while under the influence of intoxicating liquor as a third offense (DUI-3). Defendant pleaded guilty pursuant to a conditional plea agreement that reserved his right to appeal the denial of his motion to dismiss the enhancement allegation. We affirm.

In November 1997, defendant was charged with DUI as a third offense, the information alleging that he was previously convicted of the same crime on January 20, 1992 and again on October 30, 1997. Defendant was represented by counsel in both instances and did not appeal either conviction. Nevertheless, when the State sought to use the 1992 conviction in the enhancement portion of the current action, defendant argued that the prior guilty plea failed to comply with the constitutional requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and V.R.Cr.P. 11 and was thus invalid and unavailable to the State for enhancement purposes.

In Boykin v. Alabama, the United States Supreme Court held that a trial judge could not accept a defendant's guilty plea "without an affirmative showing that it was intelligent and voluntary." 395 U.S. at 242,89 S.Ct. 1709. Vermont adopted this directive in V.R.Cr.P. 11(d), which states that "[t]he court shall not accept a plea of guilty ... 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 of promises apart from a plea agreement." V.R.Cr.P. 11(c) requires that the court inform the defendant of the nature of the charge against him, the mandatory minimum penalty, if any, and the maximum possible penalty for the offense to which the plea is offered. The defendant must also be advised of his right to plead not guilty or to persist in that plea if it is already made. See V.R.Cr.P. 11(c). Finally, if a defendant pleads guilty, he must be advised that by doing so he waives his right to a jury trial, the privilege against self-incrimination, and the right to be confronted with witnesses against him. See id. It is the task of the court to assure itself that the defendant understands the nature of the charge and the consequences of the plea.

On January 20, 1992, defendant executed a form entitled "Waiver of Rights and Request to Enter a Plea," which addressed everything required by a V.R.Cr.P. 11(c) inquiry, except for a statement of the charge.¹ Defendant also signed a "Notice of Plea Agreement" form, which indicated that he was pleading guilty to DUI and admitting to a civil suspension, and that the State had agreed to recommend a sentence of two days or for time served. At the change of plea hearing held on that same date, defendant acknowledged receipt of the information, which contained a clear statement of the charge. He waived a reading of the charge. He also acknowledged receipt of the affidavit of probable cause. Defendant, through his attorney, stipulated to a factual basis for the charge based on the police officer's affidavit. He was then asked directly by the court if he had examined the waiver-of-rights form and if he understood it. He replied affirmatively. He was then asked if he had any questions regarding his plea, and he indicated that he did not.

In this DUI-3 case, the court consolidated defendant's motion with motions in six other criminal cases, all of which challenged prior convictions as being the product of invalid plea procedures. Defendant's case was one of five cases wherein the defendant was represented by counsel. In two of the consolidated cases, the defendants were unrepresented when their guilty pleas were offered. In its ruling, the court first noted that neither the federal nor state constitutions require suppression of procedurally defective prior convictions where the defendants were represented by counsel. It held that due process does not include the right to collaterally attack a conviction when the defendant failed to raise any constitutional or V.R.Cr.P. 11 violation on appeal or in a request for plea withdrawal or post-conviction relief. Defendant appeals from this decision. Because we conclude that defendant's 1992 conviction was the result of a valid guilty plea, we do not address the issue addressed by the trial court.

The purpose of V.R.Cr.P. 11(c)-(d) is to assure that a plea is knowingly and voluntarily made. See In re Thompson, 166 Vt. 471, 474, 697 A.2d 1111, 1113 (1997). Toward this end, we have required a practical application of the rule ensuring fairness, rather than a technical formula to be followed. See State v. Ploof, ...