State v. Bergerson, 82-192

Decision Date10 February 1984
Docket NumberNo. 82-192,82-192
Citation475 A.2d 1071,144 Vt. 200
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Scott BERGERSON.

George H. Spangler, Montpelier, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

Following a plea of guilty to false pretenses, a violation of 13 V.S.A. § 2002, defendant was sentenced to a term of imprisonment of 6 to 18 months, all suspended but 30 days. He appeals from the judgment of the Vermont District Court, Unit No. 5, Washington Circuit. We do not reach defendant's claims on appeal as the trial court failed to follow the plea agreement procedure as set forth in V.R.Cr.P. 11(e)(4). Because this is plain error, affecting substantial rights of defendant, we reverse and remand.

Defendant was charged with six counts of false pretenses, 13 V.S.A. § 2002, having allegedly executed a number of fraudulent checks totalling $4,139.11. He opened a Vermont checking account by depositing a Colorado check from an account that previously had been closed and then executed numerous Vermont checks which exceeded the deposited amount. All of the checks involved were returned for insufficient funds. Initially, defendant pleaded not guilty. Subsequently, however, he entered into plea negotiations with the state's attorney. At a change of plea hearing defendant withdrew his plea of not guilty and entered a plea of guilty to one count of false pretenses involving $250.00. The other five counts were to be dismissed but, by agreement of the parties, could be considered for the purpose of sentencing. The state's attorney agreed to recommend to the court that no jail term be imposed if the defendant made full restitution in the amount of $4,139.11.

Prior to defendant's change of plea, the trial judge stated:

I would say if he has no record at all the Court would think very--would not perhaps put him--make him serve any time, or if it did it would perhaps be of very short duration. I can't look into the crystal ball and tell what his prior record is ...."

Subsequent to this discussion, the court inquired into the voluntary nature of the defendant's change of plea and, apparently satisfied, accepted the guilty plea to one count of false pretenses. The trial judge reserved decision on sentencing until the arrival of the presentence investigation report (PSI). He stated, "[A]s I mentioned to you ... I don't want to have my hands tied in saying there wouldn't be any sentence at all, in case something should come to light [in the PSI].... I just don't like to be locked into something when I can't know everything about this gentleman."

At the sentencing hearing, restitution was made by the defendant and the prosecutor recommended that "he not receive any time in jail and that [he] be placed on probation with whatever conditions the Court sees fit." The defense then argued that, because the presentence report contained no charges or convictions of crimes in other states, because defendant's family raised the restitution amount at "great personal sacrifice," and because the defendant had shown personal growth, a term of incarceration should not be imposed.

The trial judge, however, imposed a sentence of six to eighteen months, all suspended but thirty days, a fine of $300.00, financial counseling and mental health screening. Upon defense counsel's evident surprise, the court stated, "I would have thought you must have known he could get a sentence .... I didn't promise anything about the--all the sentence being suspended." Defendant's subsequent motion to strike the sentence was denied. The sentence has been stayed pending resolution of this appeal.

The making of a guilty plea in Vermont is governed by Rule 11 of the Rules of Criminal Procedure. Rule 11(e) governs "Plea Agreement Procedure" and provides, in part:

If the court rejects the plea agreement or defers decision upon it, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is or may not be bound by the plea agreement, pursuant to Rule 32(d) afford a defendant who has already pleaded the opportunity to then withdraw his plea, and advise the defendant that if he persists in his plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

V.R.Cr.P. 11(e)(4) (emphasis added). Plea bargaining has been placed under close judicial scrutiny, and the safeguards contained in Rule 11 have been imposed to insure intelligent waiver of important constitutional rights.

In State v. Belanus, 144 Vt. 166, ---, 475 A.2d 227, 229 (1984), we held that a defendant who has already entered...

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15 cases
  • State v. Rosenfield
    • United States
    • Vermont Supreme Court
    • 26 Febrero 2016
    ...where it appears from the record that the court acted erroneously and without authority in doing so. See State v. Bergerson, 144 Vt. 200, 204, 475 A.2d 1071, 1074 (1984) (addressing, sua sponte, issue not raised or briefed “because of its ‘possible adverse effect on the fair administration ......
  • State v. Phillips
    • United States
    • Vermont Supreme Court
    • 10 Agosto 2018
    ...the plea agreement, the proper remedy is to give the defendant an opportunity to withdraw their plea. See, e.g., State v. Bergerson, 144 Vt. 200, 203, 475 A.2d 1071, 1073 (1984). Furthermore, the text of Rule 11 itself contemplates that guilty pleas and plea agreements be treated differentl......
  • Meunier, In re
    • United States
    • Vermont Supreme Court
    • 1 Marzo 1985
    ...trial by jury, and the right to confront one's accusers. Therefore, the plea must be both knowing and voluntary. State v. Bergerson, 144 Vt. 200, 203, 475 A.2d 1071, 1074 (1984). An unfulfilled prosecutor's promise, which induces a guilty plea, may deprive the plea of its voluntary characte......
  • State v. Phillips
    • United States
    • Vermont Supreme Court
    • 10 Agosto 2018
    ...the plea agreement, the proper remedy is to give the defendant an opportunity to withdraw their plea. See, e.g., State v. Bergerson, 144 Vt. 200, 203, 475 A.2d 1071, 1073 (1984). Furthermore, the text of Rule 11 itself contemplates that guilty pleas and plea agreements be treated differentl......
  • Request a trial to view additional results

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