State v. Pickard
| Decision Date | 19 November 2021 |
| Docket Number | 2021-009 |
| Court | Vermont Supreme Court |
| Parties | State of Vermont v. Gary W. Pickard* |
In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
APPEALED FROM: Superior Court, Bennington Unit, Criminal Division CASE NO. 1077-10-18 Bncr Trial Judges: John W.Valente, Cortland Corsones
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
Defendant appeals his conviction for aggravated sexual assault of a child, contending that his plea of guilty lacked a factual basis and the trial court abused its discretion in denying his motion to withdraw his plea. We affirm.
In October 2018, the State charged defendant with one count of aggravated sexual assault of a child and one count of lewd and lascivious conduct with a child. The charging affidavit alleged that defendant had repeatedly molested his granddaughter by touching her vagina with his fingers and mouth, rubbing his penis against the outside of her vagina and forcing her to rub his penis until he ejaculated. The abuse began when the granddaughter was seven years old and continued until she was ten, when her mother learned of the abuse and reported it to police. Defendant was arrested and after waiving his Miranda rights, admitted to police that he had touched the granddaughter's vagina, breasts, and "bottom," and had ejaculated while doing so. He stated that he knew it was wrong. When asked by police how long he had been engaging in this behavior, he said a few months. However, he indicated that he had no reason to dispute the granddaughter's statement that the behavior had been occurring for a few years.
In December 2019, defendant pled guilty to the aggravated sexual assault charge. The lewd-and-lascivious-conduct charge was dismissed as part of the plea agreement. At the change-of-plea hearing, defendant indicated that he was satisfied with his attorney's representation; agreed that his plea was voluntary; denied that his plea was the result of threats or promises; and stated that he was not under the influence of alcohol, drugs, or medication that would make it difficult to understand the proceeding. The court asked defendant if he suffered from any mental or physical condition that would make it difficult for defendant to understand what he was doing at the hearing, and defendant stated, "No."
The court went on to describe the elements of the crime, the minimum and maximum penalties, and explained defendant's other rights as set forth in Vermont Rule of Criminal Procedure 11(c)(3)-(8). The court then asked the state's attorney to explain what the facts of the case were. It stated, The following exchange then occurred:
Defendant then pled guilty to the charge of aggravated sexual assault.
The court ordered a pre-sentence investigation and a psychosexual evaluation and scheduled a sentencing hearing for April 2020. Sentencing was continued twice for reasons related to the COVID-19 pandemic and was eventually set for October 2020. In September 2020, defendant moved to withdraw his plea, arguing that he did not remember pleading guilty and therefore could not understand the consequences. The court held a hearing on the motion on the date scheduled for sentencing. Defendant submitted an affidavit but did not testify. He claimed in the affidavit and motion that he had experienced a panic attack on the day he changed his plea due to the stress of the impending trial and presence in the courthouse of media and members of his family, and that he answered the judge's questions in the affirmative "automatically" out of respect for the court.
The court denied the motion in a written order. The court did not find defendant's claim that he had a panic attack on the day of the change-of-plea hearing to be credible, noting that it was not supported by any medical evidence or testimony. The court stated it had reviewed the transcript and listened to the audio recording of the hearing and they did not support defendant's claim. Although defendant was subdued, his answers were clear, and he answered without hesitation. He displayed no difficulty in understanding questions and did not ask for any breaks or indicate that he was suffering from a medical condition that made it hard for him to comprehend the nature of the proceeding. The court found that defendant's plea was voluntary and had a factual basis, and that defendant understood that the charge carried a mandatory minimum sentence of twenty-five years. The court reasoned that defendant raised this issue for the first time ten months after the hearing, indicating that he had simply changed his mind about his plea. The court found that this was not a sufficient reason to withdraw the plea. Defendant was subsequently sentenced to serve twenty-five years to life.
We first consider defendant's claim that the plea colloquy violated Rule 11(f). Whether in a direct appeal or a post-conviction-relief proceeding, the standard of review for Rule 11(f) challenges is the same: defendant "must show, by a preponderance of the evidence, that fundamental errors rendered the conviction defective." State v. Rillo, 2020 VT 82, ¶ 8 (quotation and alteration omitted). Defendant is not required to show prejudice "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." State v. Bowen, 2018 VT 87, ¶ 7, 208 Vt. 164 (quotation omitted).
Rule 11(f) requires the trial court to determine whether there is a factual basis for a plea before entering judgment for a plea. "[A]n adequate factual basis sufficient to demonstrate voluntariness must consist of some recitation on the record of the facts underlying the charge and some admission by the defendant to those facts." In re Bridger, 2017 VT 79, ¶ 21, 205 Vt. 380 (quotation omitted). "There is no particular formula to satisfy this standard . . . [b]ut a defendant must, in some manner, personally admit to the factual basis for the charges." In re Gabree, 2017 VT 84, ¶ 10, 205 Vt. 478.
On appeal, defendant argues that his plea lacked a factual basis because in reciting the facts, the State's attorney did not explain how defendant's conduct satisfied the aggravating element of the charge. Section 3253a(a) of Title 13 lists eight circumstances which can support a charge of aggravated sexual assault of a child, including proof that "[t]he victim is subjected to repeated nonconsensual sexual acts" as part of a single occurrence or, as charged here, "as part of the actor's common scheme and plan." 13 V.S.A. § 3253a(a)(8); see State v. Bellanger, 2018 VT 13, ¶ 7, 206 Vt. 489. Defendant argues that the meaning of "common scheme or plan" is not simple or self-evident because it requires proof of a common method, objective, or pattern of conduct, and intent to commit more than one sexual assault, and the prosecutor did not explain how defendant's conduct met this element.
We conclude that Rule 11(f) was satisfied here. The prosecutor recited the essential facts of the charge and defendant personally admitted that they were true. "Although the . . . explanation was not an overly detailed recitation of all of the facts in the information, the charge was not complex and the facts set forth established all of the elements of the crime." In re Barber, 2018 VT 78, ¶¶ 32-34, 208 Vt. 77 ().
We disagree with defendant's contention that we have construed the term "common scheme and plan" to have a special meaning that is not evident from the plain language. While the common-scheme-and-plan element may be satisfied in a specific case by proof of an intent to commit a series of specific acts or the use of a particular method as in the cases cited by defendant, it extends more broadly to any "assaultive course of conduct or series of exertions of power." State v. Deyo, 2006 VT 120, ¶ 17, 181 Vt. 89 (). Here, the prosecutor explained that defendant had engaged in a common scheme and plan by repeatedly penetrating the victim's vagina with his finger over several years. Cf. State v....
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