In re Parks

• Decision Date: 09 May 2008
• Docket Number: No. 07-049.,07-049.
• Citation: 2008 VT 65,956 A.2d 545
• Parties: In re Leonard PARKS.
• Court: Vermont Supreme Court

956 A.2d 545

2008 VT 65

In re Leonard PARKS.

No. 07-049.

Supreme Court of Vermont.

May 9, 2008.

Matthew F. Valerio, Defender General, and Seth E. Lipschutz, Prisoners' Rights Office, Montpelier, for Petitioner-Appellant.

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.

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

JOHNSON, J.

¶ 1. Defendant Leonard Parks appeals a superior court order granting summary judgment to the State on a post-conviction relief (PCR) petition in which defendant sought reversal of assault-and-robbery and larceny-from-a-person pleas based on his failure to explicitly waive important constitutional rights. Because the record lacks any evidence that defendant knowingly and voluntarily pled to the charges or that defendant deliberately relinquished the double jeopardy violation on the face of the charges, we reverse and vacate defendant's convictions.

¶ 2. In October 2004, the State charged defendant with assault and robbery, and later added a habitual-offender charge, which exposed him to a potential life sentence. In August 2005, defendant and his attorney signed a notice-of-plea agreement with the State. The State agreed to strike the habitual-offender charge in exchange for defendant's guilty pleas to the assault-and-robbery charge and one count of larceny from the person — added to allow the State to recommend an eight-to-fifteen-year sentence. Thus, the plea agreement, on its face, permitted multiple punishments for the same crime in violation of the Double Jeopardy Clause.

¶ 3. The district court held a change-of-plea hearing, at which the trial judge would ordinarily have engaged in a Vermont Rule of Criminal Procedure 11 colloquy with defendant to ensure defendant's plea was knowing and voluntary. Instead, the trial judge gave a speech, directed at defendant, on the role of the State and jury in the criminal process, the rights afforded to defendants at trial, and sentencing considerations if defendant entered the plea. At no point during this speech did the judge inquire of defendant whether he understood the information or wished to continue with the plea despite its legal consequences.

¶ 4. Before accepting the plea, the district court questioned defense counsel as to whether defendant was being charged with the same crime twice. Counsel responded that it was "a plea of convenience" and that "we've dropped the habitual offender, which was for our benefit." The court further addressed defense counsel regarding defendant's possible double jeopardy defense, and counsel again responded: "[w]e're going to waive the legal defense and going to enter a no contest plea, acknowledging that this is a plea of convenience." The court read the first charge to defendant, who pleaded no contest. The court then turned to what it referred to as "the accommodation plea" and read the larceny-from-a-person charge. Defendant did not respond; however, the court on its own initiative noted, "that's a nolo also."

¶ 5. At defendant's sentencing hearing held in January 2006, the court again questioned defense counsel about the legal defense to the two charges. Counsel replied that "we waived [the defense] to get rid of the habitual offender." Defendant was sentenced to five to ten years' imprisonment on the assault-and-robbery conviction and zero to five years' imprisonment on the larceny-from-a-person conviction, to be served consecutively. On February 10, 2006, defendant filed a pro se motion for sentence reconsideration. The court denied the motion, noting: "[c]harge amended from habitual offender with life imprisonment under plea agreement — [defendant] received sentence lower than what prosecutor wanted."

¶ 6. In March 2006, defendant filed a PCR petition, claiming that his plea agreement was invalid because: (1) he did not waive the double jeopardy challenge to the two convictions; (2) he did not plead to the second charge; and (3) the court failed to determine whether his plea was voluntary in accordance with Rule 11. Both defendant and the State filed for summary judgment. The court granted the State's motion, finding that defendant understood the purpose of the double charge, as well as its constitutional implications, and waived his defense in exchange for the State's concession to drop the habitual-offender charge. This appeal followed.

¶ 7. On appeal, defendant renews his claim that the court's failure to engage him in the required colloquy pursuant to Rule 11 rendered his plea involuntary. Furthermore, defendant argues that he did not waive the facial double jeopardy violation in his plea agreement, and that the agreement therefore violated his due process rights.

¶ 8. We turn first to defendant's Rule 11 claim. The underlying purpose of Rule 11 is to ensure that a defendant's plea is both knowing and voluntary. State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1092 (1999) (mem.). In accepting a plea agreement, a defendant waives important constitutional rights, including the right to a jury trial and the right to confront adverse witnesses. In re Hall, 143 Vt. 590, 594, 469 A.2d 756, 758 (1983); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). As such, before the trial court may accept a plea of guilty or nolo contendere, it must assure itself that the defendant has "a full understanding of what the plea connotes and of its consequence." Boykin, 395 U.S. at 244, 89 S.Ct. 1709. Compliance with Rule 11 is the procedural manner in which the trial court creates a record demonstrating that defendant's plea and consequent waiver of constitutional rights is both knowing and voluntary. Thus, the Rule 11 colloquy is not just a technical litany intended to alter the smooth flow of operations in the trial court. It is a procedure with constitutional implications for the defendant.

¶ 9. Pursuant to Rule 11, the court may not accept a plea of nolo contendere unless it determines by colloquy in open court that the defendant understands:

(1) the nature of the charge to which the plea is offered;

(2) the mandatory minimum penalty, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered ...;

(3) that the defendant has the right to plead not guilty ...; [and]

(4) that if the defendant's plea ... is accepted by the court there will not be a further trial of any kind, so that by pleading the defendant waives the privilege against self-incrimination, the right to trial by jury or otherwise, and the right to be confronted with the witnesses against the defendant; ....

V.R.Cr.P. 11(c). Furthermore, the court must inquire of the defendant whether he entered the plea willingly, or whether it was instead the "result of force or threats or of promises apart from a plea agreement." V.R.Cr.P. 11(d).

¶ 10. The record before us evinces a wholesale failure by the trial court to engage defendant in a Rule 11 colloquy. Notwithstanding Rule 11's requirements, the trial judge did not personally address defendant at the change-of-plea hearing, except to ask for his plea on the assault-and-robbery charge. See V.R.Cr.P. 11(c). The trial judge in no way ensured that defendant understood the nature of the charges to which he was pleading. See V.R.Cr.P. 11(c)(1). He did not question defendant regarding defendant's understanding of the potential sentence to which he would be subject by pleading nolo. See V.R.Cr.P. 11(c)(2). Nor did the trial judge determine whether defendant understood his right to maintain a plea of not guilty. See V.R.Cr.P. 11(c)(3). Above all, however, the trial judge failed to ensure that defendant knew and understood that by pleading nolo he would waive important constitutional rights that are personal to defendant, including the right to a trial by jury. See V.R.Cr.P. 11(c)(4). Instead, the court made general remarks regarding the role of criminal trials in our justice system, the trial rights afforded to defendants, and some of the risks involved in pleading to the charges. While these statements were directed to defendant, they did nothing to ensure that defendant understood the information. Likewise, the court did not address defendant with respect to the serious double jeopardy violation presented by the plea agreement. Rather, the court asked defense counsel whether the two charges were essentially the same thing, and accepted counsel's response without determining if defendant understood the due process rights involved and willingly relinquished them. Furthermore, the court failed to inquire of defendant whether he was entering the plea voluntarily. See V.R.Cr.P. 11(d). Finally, and most perplexingly, the court entered nolo contendere pleas on both charges despite the fact that defendant did not actually plead to the second charge, larceny from a person, in open court.

¶ 11. Post-conviction relief is "available when fundamental error is found in a court's acceptance of a plea of guilty or nolo contendere." In re Hemingway, 168 Vt. 569, 570, 716 A.2d 806, 809 (1998). (mem.). Defendants who allege merely "[t]echnical or formal violations" of Rule 11 must prove prejudice to prevail in a PCR proceeding, as we will not allow a procedural oversight to frustrate a plea where the court's substantial compliance with the rule affords the defendant "fair and just process." Hall, 143 Vt. at 596, 469 A.2d at 759. Where, however, "the record fails to remove doubt as to whether the petitioner understood the charges at the time of the plea or whether a factual basis existed for the charges," there is fundamental error resulting in prejudice to the defendant's plea. In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113 (1997). In the case at hand, the judge completely failed to "engage[ ] in an open dialogue with the defendant involving a discussion of all of the Rule 11(c) [and (d)] elements to the...