In re Manning

• Decision Date: 06 May 2016
• Docket Number: No. 15–085.,15–085.
• Citation: 2016 VT 53,147 A.3d 645
• Parties: In re Wight MANNING.
• Court: Vermont Supreme Court

147 A.3d 645

2016 VT 53

In re Wight MANNING.

No. 15–085.

Supreme Court of Vermont.

May 6, 2016.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for Petitioner–Appellant.

Ashley A. Hill, Addison County Deputy State's Attorney, Middlebury, for Respondent–Appellee.

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

ROBINSON, J.

¶ 1. This case calls upon us to determine the sufficiency of a plea colloquy under Vermont Rule of Criminal Procedure 11. Petitioner appeals from the superior court's order granting judgment to the State on his petition for post-conviction relief (PCR) challenging his third conviction for driving under the influence (DUI) following his sentencing for a fourth DUI offense that had been enhanced by the DUI–3 conviction. He argues that the trial court that accepted the plea agreement that led to his conviction for DUI–3 did not ensure his guilty plea was voluntary and supported by a factual basis as required by Vermont Rules of Criminal Procedure 11(d) and 11(f). As relief, he seeks an order vacating the DUI–3 conviction. We conclude that the plea colloquy for the DUI–3 was inadequate to establish the factual basis required by Rule 11(f), but that our established law does not provide for an order vacating the DUI–3 conviction. Because the remedy for the improper conviction for the DUI–3 lies in the post-conviction challenge to the sentence for the DUI–4, we reverse and remand with instructions to the trial court to enter a judgment vacating the 2014 sentence for DUI–4 and conduct a resentencing on that charge.

¶ 2. In April 2001, petitioner pled guilty to DUI–3. 23 V.S.A. § 1201. In February 2014, after he was charged with DUI, fourth offense, petitioner filed a PCR petition seeking an order vacating the DUI–3 conviction. He argued that: (1) the change-of-plea court did not establish a factual basis for his plea as required by V.R.Cr.P. 11(f), and (2) the plea-agreement court failed to inquire into the voluntariness of his plea, in violation of Rule 11(d).

¶ 3. The State moved to dismiss the petition for lack of jurisdiction, arguing that petitioner was not at the time of filing in custody under sentence as a result of the 2001 conviction. On petitioner's request, the PCR court held his motion in abeyance pending the outcome of the proceedings in the DUI–4. Petitioner was found guilty of the DUI–4 offense, and the parties agreed that this PCR petition was ripe for consideration.¹

¶ 4. The parties agreed that the trial court could rule on the merits on the basis of their pleadings, the court record from the 2001 proceeding, and the transcript of the 2001 change-of-plea hearing. The transcript reflects that at the change-of-plea hearing on April 3, 2001, petitioner was represented by counsel. Through the first phase of the hearing, the court and counsel discussed the proposed plea agreement between defendant and the State and tried to frame it in terms that were acceptable to the court while also meeting the respective parties' goals. Once the court and parties, through counsel, amended the plea agreement, the court engaged petitioner in the following colloquy:

THE COURT: Well, the State has made a charge here. What they're saying in substance is that you were operating a motor vehicle, a Ford truck, on Rotax Road—Rotax Road in Monkton. Now where's the Rotax Road?

PETITIONER: Monkton.

THE COURT: Whereabouts? Whereabouts in Monkton is that?

PETITIONER: You know where the Hollow is if you come off Route 7 heading north from here?

THE COURT: Yeah.

PETITIONER: You go all the way through the Hollow and it brings you to Rotax Road.

THE COURT: Oh. And the State claims that alcohol was having some impact on you. A one-vehicle accident. Were you hurt?

PETITIONER: Nope.

THE COURT: And you wanted to go back and get your rifle.

PETITIONER: Hum?

THE COURT: The affidavit talks about you were agitated because you wanted to go back and get your rifle?

PETITIONER: Yeah. My best friend passed away and it was his gun; I just didn't want it lost. His family gave it to me when he died.

THE COURT: Plus they thought you were using a lot of hot language. Are you normally like that?

PETITIONER: No.

THE COURT: What do you think was the cause of that?

PETITIONER: I was upset.

¶ 5. After some discussion with the state's attorney about the effect of the criminal refusal charge, the change-of-plea court questioned petitioner about his drinking:

THE COURT: When did you start drinking?

PETITIONER: When?

THE COURT: Yeah.

PETITIONER: I don't know, on and off since I was in high school.

THE COURT: Any particular reason why you started?

PETITIONER: I—probably the group I was with at the time.

THE COURT: Yeah, I think that's—how old are you?

PETITIONER: Thirty-one.

THE COURT: Yeah, you're at the age. An awful lot of guys stop drinking about this age.

PETITIONER: It worked for me.

THE COURT: Too expensive and—I think your generation, like my generation, got exposed to a lot of information that, in order to be manly, you had to smoke Marlboro cigarettes and drink a lot of Bud.

PETITIONER: Don't like either. I liked Michelob at the time and Marlboros give me a headache.

¶ 6. The court then explained to petitioner how a trial works, the presumption of innocence, the fact that petitioner could call witnesses to contest the State's case, and the fact that the trial proceeding would be subject to review by the Vermont Supreme Court. The court explained that a DUI–3 is a felony, and that the crime carried a maximum penalty of five years in prison and a fine. The court told petitioner that he was giving up a very valuable right by pleading guilty, and then explained:

THE COURT: I'm not trying to trick you into a sentence, but I do want to make very clear what the risks are and what your options are and that you're welcome to have that trial. It doesn't mean you're going to get a heavier or worse sentence because you go to trial. So it's—it's up to you in how you want to approach the problem.

PETITIONER: Well, we've discussed it. I think what's going to happen I guess is what's going to happen.

THE COURT: I don't know what's going to happen. The more you're willing to take responsibility for your alcohol problem, the less I have to.

PETITIONER: I've taken responsibility for it.

¶ 7. The change-of-plea court then accepted petitioner's guilty plea, asking petitioner simply, “And it's a guilty plea,” to which petitioner responded “Yes, sir.” When asked whether he had any questions by the court, petitioner indicated “[n]one that I can think of.” Beyond what is reflected above, neither the court nor the State read the charges to defendant, reviewed the elements of the charge, asked defendant to admit to any facts underlying the charge, or asked defendant about the voluntariness of his plea.

¶ 8. Reviewing this record, the PCR court concluded that the plea colloquy had elicited from petitioner a sufficient factual basis to support the plea under V.R.Cr.P. 11(f). In particular, the PCR court explained that petitioner's description to the change-of-plea court of the location of Rotax Road after the court noted the State's allegation that petitioner had operated a vehicle on that road constituted an implicit admission that he did, in fact, drive a motor vehicle on Rotax Road on the night in question. Further, the PCR court reasoned that, although the change-of-plea court never specifically asked petitioner whether he was intoxicated at the time, petitioner's admissions that he had a drinking problem, was attending Alcoholics Anonymous meetings, was not himself at the time of the accident, and used “hot language” following the accident raise a strong inference that he admitted to being intoxicated on the night in question.

¶ 9. With respect to the Rule 11(d) challenge, the PCR court relied on the following facts in concluding petitioner's plea was voluntary: (1) that petitioner was represented by counsel; (2) that the plea colloquy followed an extended discussion between the court and counsel about the consequences of the plea agreement; (3) that the change-of-plea court asked him whether he was clear in his understanding; (4) that petitioner responded, “Yes, sir,” when asked if he pled guilty; and (5) that the petitioner said no when the change-of-plea court asked him if he had any questions. Based on these facts, and considering the totality of the circumstances and petitioner's failure to make a showing of prejudice, the PCR court concluded that there was sufficient evidence that the plea was voluntary and satisfied the requirements of V.R.Cr.P. 11(d).

¶ 10. Finally, in an apparent alternate holding, the PCR court found that the PCR was not seasonably made because: (1) thirteen years had lapsed between petitioner's sentence and his PCR; (2) a DUI, third offense is a relatively straightforward offense; and (3) petitioner had the same counsel at the Rule 11 hearing as in the PCR challenge. In support of its conclusion, the PCR court cited State v. Cahill, which held that “[a] long delay in moving to withdraw a plea may, in and of itself, be sufficient reason for denying [a change of plea] as not seasonably made.” No. 2001–371, 2002 WL 34423808, at *3 (Vt.Feb. 28, 2002) (unpub. mem.) (quotation omitted), https://www.vermontjudiciary.org/UPEO2001-2005/eo01371.aspx.²

¶ 11. There are no disputed facts in this case,³ and on appeal we review the lower court's legal rulings de novo. In re Manosh, 2014 VT 95, ¶ 8, 197 Vt. 424, 108 A.3d 212.

¶ 12. Rule 11(f) provides: “Notwithstanding 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.” V.R.Cr.P. 11(f). We recently considered the requirements of Rule 11(f) in In re Stocks, 2014 VT 27, 196 Vt. 160, 94 A.3d 1143. In that case, the change-of-plea court read each element of each charge to the defendant, described to the defendant the facts alleged by the State in support of each element or asked the...