State v. Currier, 94-097.

• Decision Date: 25 August 2000
• Docket Number: No. 94-097.,94-097.
• Citation: 758 A.2d 818
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. William CURRIER.

758 A.2d 818

STATE of Vermont v. William CURRIER.

No. 94-097.

Supreme Court of Vermont.

August 25, 2000.

James A. Hughes, Franklin County State's Attorney, and Derk A. Wadas and Heidi M.L. Brissette, Deputy State's Attorneys, St. Albans, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant.

PRESENT: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Defendant William Currier, sentenced to a term of twenty-years-to-life imprisonment as a result of a plea agreement, seeks to have his sentence vacated with leave to withdraw his plea to the charged offenses. Defendant contends that the trial court erred by failing to provide him with an opportunity to withdraw his plea after it rejected his original plea agreement. We affirm.

I.

On August 19, 1993, defendant William Currier, incarcerated at the Northwest Regional Correctional Facility in Chittenden County on a five-to-ten-year aggravated-assault conviction, escaped from prison. The following day, he set fire to his exwife's home in Franklin County. Defendant was arrested at the scene of the fire and again incarcerated.

On September 8, 1993, defendant was arraigned in Chittenden District Court on a charge of escape. On November 8, 1993, defendant was arraigned in Franklin District Court on three felony charges stemming from the arson: unlawful mischief, unlawful trespass, and arson. The Chittenden County escape charge was consolidated with the three Franklin County charges. As defendant had ten prior felony convictions, he was eventually charged as a habitual offender pursuant to 13 V.S.A. § 11.

At a December 22, 1993, change-of-plea hearing in Franklin District Court, defendant negotiated a plea agreement with the State, which provided that he would plead nolo contendere to all four pending charges against him, in exchange for a recommended sentence of fifteen-years-to-life imprisonment. The court stated that it would order a presentence investigation (PSI) report from the Department of Corrections before accepting the sentence, and noted defendant's right to withdraw his plea in the event that the court decided on a more severe sentence.¹

The court then went through each of the four charges with defendant, and defendant answered affirmatively that he understood the nature of, and maximum possible penalty for, each charge. The court engaged defendant in a thorough V.R.Cr.P. 11 colloquy regarding the rights he was giving up by pleading nolo contendere. Defendant answered in the affirmative to each question, acknowledging that he was entering his pleas freely and voluntarily. The court asked for defendant's plea on each charge, and defendant responded no contest. The court accepted each of defendant's pleas, finding that he entered them "after a knowing waiver of his constitutional rights." Sentencing was set for January 31, 1994.

On December 31, 1993, defendant unsuccessfully attempted to escape from the Northwest State Correctional Facility. Consequently, the State brought an additional attempted-escape charge at the January 31, 1994 sentencing hearing on the four previous charges. At this hearing, defense counsel informed the court that defendant and the State had agreed to consolidate the new attempted-escape charge with the prior escape charge, and roll both charges into a five-to-ten-year sentence to be served concurrently with the fifteen-years-to-life imprisonment sentence stemming from the August 20, 1993 arson.

The court rejected the plea agreement, basing its decision on threats defendant made against his ex-wife as indicated in the PSI report. Defendant was present to hear the court's decision. The court stated that its main concern was that the fifteen-year minimum sentence was too short because defendant would become eligible for parole in eleven-to-twelve years. Although the State and defense counsel alternately argued that the plea agreement was sufficient, the court reiterated its objection to the agreement.

After a recess, defendant returned with a modified plea agreement, which provided for a sentence of fifteen-years-to-life on the three charges stemming from the arson consecutive to a concurrent five-to-ten-year sentence on each escape-related charge. The court asked defendant if this modification was satisfactory to him, and defendant responded that it was. The court turned specifically to the new attempted-escape charge, securing defendant's understanding of the nature of the charge and maximum possible penalty, and went through a complete V.R.Cr.P. 11 colloquy with defendant. Referring to the earlier plea agreement and colloquy, as well as the modification the parties had agreed to during the recess, the court asked defendant if he was entering his plea voluntarily. Defendant answered affirmatively. The court asked defendant for his plea on the new attempted-escape charge, and defendant pled nolo contendere.

The court then accepted defendant's modified plea agreement and sentenced defendant according to its terms. Defendant signed a notice of plea agreement dated January 31, 1994, as well as a waiver of rights form that stated: "No threats or force have been used against me by anyone to try to make me plead guilty or no contest. I plead guilty or no contest of my own choice, freely and voluntarily."

II.

This appeal has traveled a lengthy route to reach us. Shortly after defendant was sentenced to twenty-years-to-life imprisonment, he sent a letter to the Franklin Family Court, which forwarded it to Franklin District Court, that stated: "I do not wish to appeal my criminal case, which resulted in life imprisonment. Thank you anyways." State v. Currier, 162 Vt. 626, 627, 649 A.2d 246, 246 (1994). Vermont Rule of Appellate Procedure 3(b) provides that in any criminal case resulting in life imprisonment, appeal to the Supreme Court shall be automatic unless the defendant with the advice of counsel has waived such appeal in writing.

The court scheduled a hearing on the issue. At the hearing, the court asked defendant whether he still wanted to give up his right to have the case reviewed by the Supreme Court. Defendant responded, "I don't have any comment." The only matter conclusively established at the hearing was that defendant signed the letter waiving his appeal after receiving the advice of counsel. Following the waiver hearing, the State filed a motion to dismiss defendant's automatic appeal. Because the trial court's inquiry did not establish that defendant's waiver was made knowingly and intelligently, we denied the State's motion and remanded the matter to the trial court for such a determination. See id. at 627, 649 A.2d at 247.

Defendant was represented in the trial court by the public defender for Franklin and Grand Isle counties. After our decision, the public defender advised the Court in writing that defendant did, in fact, wish to pursue an appeal. This, presumably, caused the district court to regard our previous mandate as moot; no further proceedings appear to have taken place in that forum. The public defender filed a docketing statement here, but advised the Court several times in writing that he did not consider himself to be defendant's appellate counsel because he had not been separately appointed pursuant to 13 V.S.A. § 5236(a) (requiring defendants to submit separate application on appeal to receive representation at public expense). On January 29, 1999, noting the unusual circumstances of this case, we ordered the defender general to conduct an appropriate inquiry and inform the Court in writing whether defendant wished to pursue an appeal of his sentence. See Administrative Order 4, § 4 (public defender's representation of defendant continues until court or defender general relieves public defender of appointment or separate application for appointment of appellate counsel denied). Defendant chose to continue with his appeal, represented by the defender general, and we now address his argument.

III.

Defendant asserts on appeal that the trial court's failure to comply with what he describes as V.R.Cr.P. 11(e)(4)'s "explicit requirement of personal address" is equivalent to the error we found fatal in State v. Bergerson, 144 Vt. 200, 475 A.2d 1071 (1984). There, the defendant agreed to a plea in which the State promised to recommend to the court that no jail time be imposed in exchange for defendant's completed restitution and guilty plea. The court accepted the plea agreement, but reserved a decision on sentencing until it had read the PSI report. At the sentencing hearing, the court rejected the plea agreement and imposed a sentence that included jail time. Defendant did not attempt to withdraw his plea, but did move to strike the sentence. The court denied his motion. We held the court "did not act in accordance with Rule 11 when it subsequently failed to afford defendant an opportunity to withdraw his plea." Id. at 203, 475 A.2d at 1073. We stated that the court's actions constituted plain error because "[a]t no time . . . during the . . . sentencing hearings, was defendant informed of the right to withdraw his plea." Id.

Bergerson was consistent with our previous observation that V.R.Cr.P. 11(e)(4) was amended to make clear that a judge's unwillingness to impose the sentence agreed upon as the result of a plea agreement between the State and a defendant is always a "fair and just reason" for withdrawal of a plea within the meaning of V.R.Cr.P. 32(d). See State v. Belanus, 144 Vt. 166, 169-70, 475 A.2d 227, 229 (1984). While withdrawal of a guilty or nolo contendere plea is within the discretion of a sentencing court, we have consistently held that it is an abuse of discretion to refuse to grant a defendant's motion to withdraw his plea where a sentencing judge decides not to follow the sentence recommended by the plea agreement. See id. at 170, 475 A.2d at 229; see also State v. Wallace,...