In re Miller

• Decision Date: 03 April 2009
• Docket Number: No. 07-254.,07-254.
• Parties: In re Jason Clark MILLER.
• Court: Vermont Supreme Court

975 A.2d 1226

2009 VT 36

In re Jason Clark MILLER.

No. 07-254.

Supreme Court of Vermont.

April 3, 2009.

Allison N. Fulcher of Martin & Associates, Barre, for Petitioner-Appellant.

David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro, for Respondent-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. SKOGLUND, J.

Petitioner appeals from the superior court's denial of his petition for post-conviction relief. He argues that his petition should have been granted because: (1) he did not knowingly and voluntarily plead guilty to four "failure to appear" violations under 13 V.S.A. § 7559(d); and (2) he received ineffective assistance of counsel. We reverse.

¶ 2. The record indicates the following. In May 2004, petitioner was arrested for driving under the influence, sixth offense (DUI-6); driving with a suspended license, second offense (DLS-2); and providing false information to a police officer. At the time, petitioner was also on probation for committing welfare fraud. Petitioner was released on conditions, one of which required him to check in daily at the Brattleboro police station. Petitioner repeatedly failed to check in as ordered, and he was charged with numerous counts of failure to appear under 13 V.S.A. § 7559(d).

¶ 3. In December 2005, petitioner and the State entered into a written plea agreement, which was accepted by the court following a Vermont Rule of Criminal Procedure 11 colloquy with petitioner. Pursuant to the agreement, petitioner pled guilty to DUI-6, providing false information to police, and four failure-to-appear charges, and the State dismissed the DLS-2 charge and nine additional counts of failure to appear. Petitioner agreed that his probation for welfare fraud would be revoked and the underlying sentence of one to three years to serve imposed. Petitioner also agreed to a sentence of three to five years on the DUI-6 conviction, to be served consecutively. In addition, petitioner agreed to serve zero to twelve month sentences for each of the four failure-to-appear convictions, to be served concurrently with each other, but consecutively with the other sentences. Finally, petitioner agreed to serve three to six months on the false information conviction concurrently with the other sentences. As indicated in the plea agreement, petitioner received an overall sentence of four to nine years to serve.

¶ 4. Several months thereafter, petitioner filed a pro se petition for post-conviction relief. Counsel was appointed and in an amended petition petitioner argued, among other things, that the trial court should not have accepted his guilty pleas to the charges of failure to appear because his failure to report to the police station did not constitute a violation of 13 V.S.A. § 7559(d). According to petitioner, there was no factual basis for the charges, and thus his pleas could not have been knowingly and voluntarily made, and his counsel was ineffective for allowing him to plead guilty.

¶ 5. The State moved for summary judgment, and petitioner filed a cross-motion for summary judgment. In a written order, the court granted summary judgment to the State. It explained that 13 V.S.A. § 7554 authorized a judicial officer to release a person charged with an offense and awaiting trial, and to impose conditions on that release. Subsections 7559(d) and (e), noted the court, provided the sanctions for violations of conditions of release. Subsection (e) provided a general sanction for any violation of a condition of release, with a maximum penalty of a $1,000 fine or imprisonment for six months or both. Subsection (d) addressed more specifically a violation of a condition of release that required the released person to "appear at a specified time and place in connection with a prosecution for an offense," and it carried a greater maximum penalty of a $5,000 fine or imprisonment for two years or both. The court found that a violation of the type addressed in subsection (d) was referred to as a "failure to appear."

¶ 6. Petitioner contended that the condition requiring him to check in daily at the police department was not a condition requiring him to appear at a specified time and place "in connection with a prosecution for an offense." According to petitioner, violations of § 7559(d) should be limited to appearances, such as appearances in court, that would directly move a prosecution forward.

¶ 7. The court rejected this interpretation, finding it at odds with the plain language of the statute. The court explained that the very purpose of the daily check-in requirement was to ensure that petitioner remained subject to the physical jurisdiction of the court until the prosecution was concluded. According to the court, this made it a requirement "in connection with a prosecution" within a common-sense understanding of those words. Moreover, the court reasoned, the Legislature could have easily defined the failure-to-appear offense more narrowly, but it did not do so, instead employing very broad language. The court also questioned whether petitioner was prejudiced by pleading to the wrong offense; the court found it apparent from the plea hearing that the parties sought to achieve a particular overall prison term for the full package of criminal behavior at issue, and noted that the sentencing court could have easily produced the same result even if petitioner had been charged with violating § 7559(e) rather than § 7559(d). The court thus concluded that petitioner's petition failed as a matter of law, and it granted judgment to the State. This appeal followed.

¶ 8. On appeal, petitioner reiterates his assertion that there was an inadequate factual basis for his guilty pleas. He argues that when § 7559 is read together with § 7554, it is apparent that the Legislature intended to penalize general violations of conditions of release, including reporting or check-in requirements, under § 7559(e) and not § 7559(d). Petitioner maintains that § 7559(d) applies only in cases where a defendant fails to appear for a court proceeding, a mental or physical examination, or fails to appear to provide nontestimonial evidence. According to petitioner, because his failure to appear at the police station cannot establish the elements of the offense codified in § 7559(d), his pleas were not voluntary, and his counsel rendered ineffective assistance for advising him to plead guilty. We agree that petitioner's plea was not voluntary, and do not reach his ineffective-assistance claim.

¶ 9. We first address the trial court's conclusion that petitioner would not have been prejudiced by involuntarily pleading guilty to the wrong offense. It is settled law in this state that no prejudice need be shown to collaterally attack a guilty plea on the grounds that the trial court failed to ascertain that there was a factual basis for the plea as required by Rule 11(f).¹ We announced this rule in In re Dunham, 144 Vt. 444, 451, 479 A.2d 144, 148 (1984); see also State v. Cleary, 2003 VT 9, ¶ 44, 175 Vt. 142, 824 A.2d 509 (Dooley, J., dissenting) (reciting rule). As stated in the Reporter's Notes, Rule 11(f) is intended to prevent the entry of false guilty pleas in situations where, for example, the defendant does not completely understand the elements of the charge or realize that he has a defense. Reporter's Notes, V.R.Cr.P. 11. At the heart of Rule 11(f) is the goal of preventing defendants from pleading guilty when the conduct they engaged in does not fall within the charge. State v. Yates, 169 Vt. 20, 25-26, 726 A.2d 483, 486-87 (1999) (citing McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). These grounds, of course, are the substance of petitioner's argument for post-conviction relief.

¶ 10. That the superior court even mentioned possible prejudice to petitioner may be due to confusion based on its recollection of In re Hall and In re Bentley — cases in which we held that a petitioner collaterally attacking a guilty plea must show prejudice when alleging only a technical violation of the Rule 11 procedures. In re Hall, 143 Vt. 590, 596, 469 A.2d 756, 759 (1983); In re Bentley, 144 Vt. 404, 410, 477 A.2d 980, 983 (1984); see also In re Dunham, 144 Vt. at 451, 479 A.2d at 148 (recognizing origin of rule). In Hall — in which a defendant sought to attack his guilty plea on the basis of technical Rule 11(c) violations — we observed that the defendant "[did] not allege that he was not in fact aware of the maximum and minimum penalties, and of his waiver of a jury trial ... [or] assert that," if he was aware, "he would have chosen an alternative to a plea of guilty." 143 Vt. at 596, 469 A.2d at 759. And in Bentley — in which the attack was similarly premised on technical deficiency under Rule 11(c) — we held that "[t]o constitute prejudice ... [the] defendant would have [had] to show that (1) he was unaware of the nature of the charges and the minimum and maximum penalties involved, and (2) this lack of understanding caused him to plead nolo contendere." 144 Vt. at 410, 477 A.2d at 983.

¶ 11. However, petitioner's argument — that the conduct with which he was charged and which formed the basis of his Rule 11(f) colloquy with the trial court was not proscribed by the statute he was convicted of violating — is simply not a technical argument. We require no showing of prejudice to collaterally attack guilty pleas on Rule 11(f) grounds because a defendant's understanding of the elements of an offense as they relate to the facts goes directly to the voluntariness of his plea. Dunham, 144 Vt. at 451, 479 A.2d at 148. In McCarthy, 394 U.S. at 466, 89 S.Ct. 1166, the Supreme Court of the United States observed that, "because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." The requirement that the...