In re Lewis

Decision Date30 April 2021
Docket NumberNo. 2019-322,2019-322
Citation2021 VT 24
CourtVermont Supreme Court
PartiesIn re Michael Lewis

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: 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.

On Appeal from Superior Court, Chittenden Unit, Civil Division

Helen M. Toor, J.

Robert Appel, Charlotte, for Petitioner-Appellant.

Sarah George, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. ROBINSON, J. Petitioner appeals the trial court's summary judgment denying his petition for post-conviction relief (PCR) from his 2009 convictions and accompanying habitual-offender sentence enhancement. He argues: (1) his plea to the 2005 false-pretenses charge used to support the 2009 habitual-offender enhancement lacked a factual basis; (2) three of his 2009 convictions were invalid because he did not verbally enter a plea; and (3) the PCR court erred in refusing to address some of his claims. We conclude that petitioner waived a potential collateral challenge to use of the 2005 predicate conviction to enhance his 2009 sentence when he pled guilty to the habitual-offender enhancement in 2009; considering the plea colloquy as a whole, the court's failure to elicit a verbal plea contemporaneous with the court's review of three of the 2009 charges does not invalidate his convictions on those charges; and the PCR court did not err in declining to address additional claims raised by petitioner in argument but omitted from his amended petition. Thus, we affirm.

¶ 2. In 2009, petitioner pled guilty to several charges, including two charges of involuntary manslaughter and multiple charges of grossly negligent operation of a vehicle with serious bodily injury resulting. The charges all arose from petitioner crashing his passenger-filled car head-on into an oncoming vehicle while driving excessively fast in an attempt to elude police officers. Pursuant to petitioner's plea agreement, the trial court sentenced petitioner as a habitual offender based on four prior felonies dating from 2004 to 2008.

¶ 3. In 2017, petitioner filed a pro se PCR petition. His amended, counseled PCR petition sought to vacate three of the four predicate felony convictions used to support the 2009 habitual-offender enhancement (escape convictions from 2004 and 2008, and a false-pretenses conviction from 2005) and challenged three of his 2009 convictions on the separate and independent ground that he never verbally pled guilty to those charges in the context of the 2009 plea colloquy.1

¶ 4. Ruling on cross-motions for summary judgment, the PCR court rejected the State's argument that petitioner waived any collateral challenges to the predicate convictions that supported the habitual-offender enhancement when he entered the 2009 guilty plea. The PCR court thus examined the plea colloquies in connection with the three challenged predicate convictions and concluded that the colloquies in the 2004 escape and 2005 false-pretenses convictions complied with Vermont Rule of Criminal Procedure 11(f). However, it determined that the colloquy leading to the 2008 escape conviction was insufficient because the trial court failed to ask anything about the accuracy of the State's allegation. In a separate summary-judgment decision concerning the adequacy of the 2009 plea colloquy relating to the three 2009convictions petitioner challenged, the PCR court concluded that Vermont law does not require an express question or statement of guilt and that it was "crystal clear" from petitioner's statements that he was admitting guilt to the three counts at issue. The court noted that petitioner had requested an evidentiary hearing on ineffective-assistance-of-counsel claims, but concluded that the amended petition before the court did not include any such claims. The court thus granted judgment to the State in connection with the 2004 escape conviction, the 2005 false-pretenses conviction, and the challenged 2009 convictions. The court granted petitioner judgment with respect to the 2008 escape conviction and remanded the docket to the criminal division to vacate the conviction and reinstate the charge.

¶ 5. On appeal, petitioner argues that: (1) the plea colloquy leading to the 2005 false-pretenses conviction did not comply with Rule 11(f) because there was an insufficient factual basis for the plea; (2) his 2009 convictions on three of the charges were invalid because he did not verbally enter a guilty plea; and (3) the PCR court erred in refusing to address petitioner's various ineffective-assistance-of-counsel claims relating to his representation in connection with the respective predicate convictions underlying his 2009 habitual-offender enhancement and in connection with his 2009 conviction and sentencing.

¶ 6. We review the trial court's summary-judgment decision without deference, applying the same standard as the trial court. In re Gay, 2019 VT 67, ¶ 7, 211 Vt. 122, 220 A.3d 769. Summary judgment is warranted when there are no issues of material fact, and a party is entitled to judgment as a matter of law. V.R.C.P. 56(a).

I. Challenge to Predicate Conviction

¶ 7. We conclude that when he pled guilty to the habitual-offender enhancement based in part on the 2005 false-pretenses conviction, petitioner waived a collateral challenge to the use of that conviction to support a habitual-offender enhancement to his sentence in connection withthe 2009 charges.2 Recent decisions of this Court compel this conclusion, and we are unpersuaded by petitioner's critique of those decisions.

¶ 8. In Gay, a petitioner who had pled no contest to an offense with a habitual-offender enhancement subsequently filed a PCR petition challenging the habitual-offender sentence enhancement on the basis that the plea colloquies in connection with the underlying convictions violated Rule 11. 2019 VT 67. We held that by pleading no contest knowingly and voluntarily, the petitioner had expressly waived his right to appeal all nonjurisdictional defects in his charge, including the existence of any underlying convictions that made him eligible for a sentencing enhancement. Id. ¶ 12. Therefore, we concluded that the petitioner had expressly waived his right to collaterally attack the prior proceedings. Id. ¶ 13.

¶ 9. While petitioner's appeal was pending in the case before us, this Court issued a decision in In re Benoit reaffirming the reasoning and holding in Gay that "a defendant may not accept the benefit of a plea bargain, expressly waive the right to collaterally attack a predicate conviction, then attempt to make a collateral attack anyway." 2020 VT 58, ¶ 16, ___ Vt. ___, 237 A.3d 1243 (citing Gay, 2019 VT 67, ¶ 12). We concluded that, with the State's agreement and the court's approval, a defendant can plead guilty and still preserve a PCR challenge to a predicate conviction "by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a PCR petition, specifically identifying the convictions they intend to challenge, and stating the bases for the challenges." Id. ¶ 18.

¶ 10. In petitioner's supplemental briefing in this case, he urges us to revisit our holdings in Gay and Benoit, arguing that a guilty plea does not amount to a knowing and voluntary waiver of collateral challenges to predicate convictions. See, e.g., State v. Hance, 157 Vt. 222, 224, 596 A.2d 365, 366 (1991) (explaining that defendant can waive constitutional or statutory rights if "waiver is knowing, intelligent, and voluntary"). Petitioner acknowledges that the standard plea colloquy advises defendants that a guilty plea constitutes a waiver of the right to direct appeal, but asserts that it does not put defendants on notice that they will be barred from seeking post-conviction relief.

¶ 11. If the question before us was whether a defendant who pleads guilty to a charge or enhancement without expressly preserving a PCR challenge to a predicate offense forever waives the right to collaterally challenge the predicate convictions in any context, petitioner's waiver analysis might make sense. But our holdings in Benoit, and its predecessors, are more limited, and rest on the established principle that when an individual knowingly and voluntarily pleads guilty to a charge, and admits to facts collectively establishing all of the elements of the charge, that guilty plea operates as a waiver of most challenges to the resulting conviction that are based on nonjurisdictional defects in the proceedings.3 See, e.g., Gay, 2019 VT 67, ¶ 12; In re Torres, 2004 VT 66, ¶ 9, 177 Vt. 507, 861 A.2d 1055 (mem.). This waiver applies to a broad range of nonjurisdictional challenges, including even waivable constitutional challenges. See, e.g., State v. Armstrong, 148 Vt. 344, 345-46, 533 A.2d 1183, 1184 (1987) (holding that defendant waived theright to challenge allegedly unlawful seizure by voluntarily pleading guilty to DUI charge). We explained in In re Parks that ordinarily criminal defendants can waive important constitutional rights, such as the right to be free from double jeopardy, only by "intentional relinquishment or abandonment" of the right, but in the context of plea agreements, "conscious waiver of every potential defense is not necessarily required, and an intelligent plea in compliance with Rule 11 typically forecloses collateral attack on the plea." 2008 VT 65, ¶ 17, 184 Vt. 110, 956 A.2d 545 (quotation omitted). In short, consistent with established law regarding the effect of a guilty plea, we conclude that by pleading guilty to...

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