In re Gabree

• Decision Date: 08 September 2017
• Docket Number: No. 2015-339,2015-339
• Citation: 2017 VT 84
• Parties: In re Alexis Gabree
• Court: Vermont Supreme Court

2017 VT 84

In re Alexis Gabree

No. 2015-339

Supreme Court of Vermont

February Term, 2016

September 8, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

Supreme Court

On Appeal from Superior Court, Orleans Unit, Civil Division

Timothy B. Tomasi, J. (summary judgment); Howard E. Van Benthuysen, J. (final judgment)

Matthew F. Valerio, Defender General, and Emily Tredeau, Prisoners' Rights Office, Montpelier, for Petitioner-Appellant.

Jennifer Barrett, Orleans County State's Attorney, Newport, and Christopher C. Moll, Essex, for Respondent-Appellee.

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

¶ 1. SKOGLUND, J. Petitioner Alexis Gabree appeals the superior court's decision to dismiss her petition for post-conviction relief (PCR). She argues that, during the plea colloquy, she never personally admitted that a factual basis for the charges existed, in violation of Vermont Rule of Criminal Procedure 11(f). We agree and so reverse and remand.

¶ 2. In 2013, the State charged petitioner with two counts of grossly negligent operation of a vehicle, death resulting, in violation of 23 V.S.A. § 1091(b). Under the terms of the plea agreement, petitioner agreed to plead guilty to both counts in exchange for a sentence of six to fifteen years, to serve.

¶ 3. On February 27, 2014, at the change-of-plea hearing, the court first examined the terms of the plea with the State and defense counsel, then proceeded to the following plea colloquy:

COURT. Let's talk about the charges then.

Count I in Docket No. 74-2-13 alleges that you, . . . at North Troy on or about August 5th of 2012 operated a motor vehicle on a public highway in a grossly negligent manner, resulting in the death of Margaret Moran, a person other than the operator. This is a violation of Title 23 Section 1091b. It carries a maximum penalty of up to fifteen years in jail and a fine of up to 15,000 dollars or both.

Do you understand the nature of this charge?

PETITIONER. Yes, I do.

COURT. Do you understand the maximum penalty you could receive should you be convicted?

PETITIONER. Yes, I do.

COURT. In Count II the State alleges that you, . . . at North Troy on or about August 5, 2012 operated a motor vehicle on a public highway in a grossly negligent manner resulting in the death of Edmund Moran, a person other than the operator. This is a violation of Title 23 Section 1091b. It's the same charge we discussed in Count I. It carries the same penalty, up to fifteen years in jail and up to 15,000 dollars in fines or both.

Do you understand the nature of that charge?

PETITIONER. Yes.

COURT. Now . . . , every charge is made up of essential elements. These are the key facts that the State has to prove during a trial beyond a reasonable doubt. Now, during a trial you do not have to prove anything. You can rely entirely on the presumption of innocence as your entire case. You can rely entirely on a failure of the State to prove a particular element as your entire case. The presumption of innocence stays with you throughout the trial in this matter; it never goes away, unless and until the jury decides unanimously that you are, in fact, guilty. When you plead guilty to a criminal charge you're admitting the key facts, the essential elements.

Do you understand that?

PETITIONER. Yes, I do.

COURT. Is that what you want to do here?

DEFENDANT. Yes.

After inquiring about petitioner's mental state, the change-of-plea court continued with the colloquy:

COURT. Okay. Now the elements of these two offenses are the same, with the exception that one involves the death of Margaret Moran and the second count, the death of Edmund Moran. The elements here are that it was you who, on that date and at that place, that you operated something. The something is the next element, a motor vehicle. A motor vehicle means a car or a truck, a motorcycle, a van, a school bus, whatever it is, the things that we normally think of as powered by a motor that take you down or along the next element, a public highway.

A public highway is a road or a street, parking lot, interstate, whatever, that is open to the general circulation of traffic at the time you were on it. This is alleged to have happened on Route 105. If other people could have driven on that on the day you were driving there, that would probably be a public highway.

The next element is that you were driving in a grossly negligent manner. To drive in a grossly negligent manner means that your driving behavior, your manner of operating, showed a gross deviation from the standard of care that a reasonable person would have observed under similar circumstances. As the court understands the State's theory you were driving at an excessive speed of sixty-seven in a fifty zone, you had at least ten separate psychoactive or other medications or substances in your bloodstream, and you were left of center.

Is that the State's theory . . . ?

STATE. I think there were actually eleven separate substances, Your Honor, so at least ten would be correct. She was travelling seventeen miles an hour over the speed limit, and she was approximately nine feet left of center when she struck the Morans' vehicle.

COURT. Okay.

So do you understand what it means to be driving in a grossly negligent manner?

PETITIONER. Yes.

COURT. And, [defense counsel], do you agree that there's a factual basis for these two charges?

DEFENSE COUNSEL. I do.

COURT. All right.

The final element, . . . is that your gross negligent operation of a motor vehicle on a public highway caused the death of Margaret Moran in Count I and the death of Edmund Moran in Count II. Do you understand what you're pleading guilty to by entering these pleas today?

PETITIONER. Yes.

COURT. All right.

¶ 4. The change-of-plea court then explained to petitioner that, by entering the plea agreement, she was giving up her right to a trial; petitioner affirmatively waived her right to a trial. The court concluded the colloquy by asking both the State and defense counsel whether the court articulated a factual basis for the charges. Both attorneys agreed that a factual basis existed for the two counts of grossly negligent operation, death resulting. Petitioner pled guilty to the charges, and the court accepted her plea. At a subsequent sentencing hearing on April 2, 2014, the court sentenced petitioner according to the terms of the plea agreement—six to fifteen years, to serve.

¶ 5. Seven months later, on November 21, 2014, petitioner filed a pro se PCR petition. As amended by assigned counsel, the petition alleged that, during the plea colloquy, petitioner never actually admitted the factual elements of the crimes for which she was convicted, in violation of Vermont Rule of Criminal Procedure 11(f). The State and petitioner filed cross-motions for summary judgment.

¶ 6. The PCR court granted the State's motion for summary judgment, denied petitioner's cross-motion, and dismissed the PCR petition. In its analysis, the PCR court relied on State v. Cleary, 2003 VT 9, 175 Vt. 142, 824 A.2d 509, to conclude that the colloquy "substantially complied" with Rule 11(f). In reaching this conclusion, the PCR court noted that, at the outset ofthe colloquy, the petitioner indicated that, by pleading guilty, she would be admitting to the truth of the key facts and elements of the charges. Given this initial admission by petitioner—as well as the ability of a lay person to comprehend the nature of the offenses and the change-of-plea court's detailed explanation of the factual circumstances supporting the charged offenses—the PCR court determined that the colloquy was sufficient under Rule 11(f). This appeal followed.

¶ 7. We review the PCR court's summary judgment decision de novo and apply the same standard as the trial court. In re Kirby, 2012 VT 72, ¶ 5, 192 Vt. 640, 58 A.3d 230 (mem.). "Summary judgment is proper where there is no genuine issue of material facts and the movant is entitled to judgment as a matter of law." Id.; V.R.C.P. 56(a).

¶ 8. Vermont Rule of Criminal Procedure 11 sets forth a series of substantive and procedural rules to ensure that a defendant's guilty plea is knowing and voluntary. State v. Yates, 169 Vt. 20, 25, 726 A.2d 483, 486 (1999). For example, Rule 11(d) requires the change-of-plea court to determine, by addressing the defendant, that the plea is in fact voluntary. Id. at 25, 726 A.2d at 487; V.R.Cr.P. 11(d); see also V.R.Cr.P. 11(c) (requiring court to address defendant personally and in open court to determine defendant understands, among other things, nature of charge); V.R.Cr.P. 11(g) (setting forth procedural mechanism to implement Rule 11).

¶ 9. Within this system, Rule 11(f) requires the change-of-plea court to ensure that the defendant understands and admits to a factual basis for each element of the offenses charged. See In re Bridger, 2017 VT 79, ¶ 22, ___ Vt. ___, ___ A.3d. ___; In re Dunham, 144 Vt. 444, 447-48, 479 A.2d 144, 146-47 (1984). By making this inquiry, the court ensures that a defendant's plea is truly voluntary and that a reviewing court has the ability to review the record. Bridger, 2017 VT 79, ¶ 22; In re Stocks, 2014 VT 27, ¶ 13, 196 Vt. 160, 94 A.3d 1143. Absent such an inquiry, a defendant may not "completely understand the elements of the charge or realize that [he or she] has a valid defense" and may enter a false guilty plea. Reporter's Notes, V.R.Cr.P. 11(f); see In re Miller, 2009 VT 36, ¶ 9, 185 Vt. 550, 975 A.2d 1226 (noting rule prevents false guilty pleasin situations where, for example, defendant does not completely understand charge's elements or recognize defense). Rule 11(f) is distinct from the other...