State v. Morrissette

State v. Morrissette (98-412); 170 Vt. 569; 743 A.2d 1091

[Opinion Filed 15-Nov-1999]
[Motion for Reargument Denied 14-Dec-1999]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-412

                               MAY TERM, 1999

State of Vermont	               }	APPEALED FROM:
	                               }
     v.	                               }	District Court of Vermont
	                               }	Unit No. 2, Chittenden Circuit
George Morrissette	               }
	                               }	DOCKET NO. 5694-11-97Cncr	

             In the above-entitled cause, the Clerk will enter:


       Defendant George Morrissette was charged with operating a motor
  vehicle while under the  influence of intoxicating liquor as a third
  offense (DUI-3).  Defendant pleaded guilty pursuant to  a conditional plea
  agreement that reserved his right to appeal the denial of his motion to
  dismiss  the enhancement allegation.  We affirm.
	
       In November 1997, defendant was charged with DUI as a third offense,
  the information alleging  that he was previously convicted of the same
  crime on January 20, 1992 and again on October  30, 1997.  Defendant was
  represented by counsel in both instances and did not appeal either 
  conviction.  Nevertheless, when the State sought to use the 1992 conviction
  in the enhancement  portion of the current action, defendant argued that
  the prior guilty plea failed to comply with the  constitutional
  requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and V.R.Cr.P. 11
  and  was thus invalid and unavailable to the State for enhancement
  purposes. 
 		
       In Boykin v. Alabama, the United States Supreme Court held that a
  trial judge could not accept a  defendant's guilty plea "without an
  affirmative showing that it was intelligent and voluntary."   395 U.S.  at
  242.  Vermont adopted this directive in V.R.Cr.P 11(d), which states that
  "[t]he  court shall not accept a plea of guilty . . . without first, by
  addressing the defendant personally in  open court, determining that the
  plea is voluntary and not the result of force or threats or of  promises
  apart from a plea agreement."  V.R.Cr.P. 11(c) requires that the court
  inform the  defendant of the nature of the charge against him, the
  mandatory minimum penalty, if any, and  the maximum possible penalty for
  the offense to which the plea is offered.  The defendant must  also be
  advised of his right to plead not guilty or to persist in that plea if it
  is already made.  See  V.R.Cr.P. 11(c).  Finally, if a defendant pleads
  guilty, he must be advised that by doing so he  waives his right to a jury
  trial, the privilege against self-incrimination, and the right to be 
  confronted with witnesses against him.  See id.  It is the task of the
  court to assure itself that the  defendant understands the nature of the
  charge and the consequences of the plea. 
	
       On January 20, 1992, defendant executed a form entitled "Waiver of
  Rights and Request to Enter  a Plea," which addressed everything required
  by a V.R.Cr.P. 11(c) inquiry, except for a 

 

  statement of the charge. (FN1)  Defendant also signed a "Notice of Plea
  Agreement" form,  which indicated that he was pleading guilty to DUI and
  admitting to a civil suspension, and that  the State had agreed to
  recommend a sentence of two days or for time served.  At the change of 
  plea hearing held on that same date, defendant acknowledged receipt of the
  information, which  contained a clear statement of the charge.  He waived a
  reading of the charge.  He also  acknowledged receipt of the affidavit of
  probable cause.  Defendant, through his attorney,  stipulated to a factual
  basis for the charge based on the police officer's affidavit. He was then 
  asked directly by the court if he had examined the waiver-of-rights form
  and if he understood it.  He replied affirmatively.  He was then asked if
  he had any questions regarding his plea, and he  indicated that he did not.

       In this DUI-3 case, the court consolidated defendant's motion with
  motions in six other criminal  cases, all of which challenged prior
  convictions as being the product of invalid plea procedures.   Defendant's
  case was one of five cases wherein the defendant was represented by
  counsel.  In  two of the consolidated cases, the defendants were
  unrepresented when their guilty pleas were  offered.  In its ruling, the
  court first noted that neither the federal nor state constitutions require 
  suppression of procedurally defective prior convictions where the
  defendants were represented by  counsel.  It held that due process does not
  include the right to collaterally attack a conviction  when the defendant
  failed to raise any constitutional or V.R.Cr.P. 11 violation on appeal or
  in a  request for plea withdrawal or post-conviction relief.  Defendant
  appeals from this decision.   Because we conclude that defendant's 1992
  conviction was the result of a valid guilty plea, we  do not address the
  issue addressed by the trial court.   
 	
       The purpose of V.R.Cr.P. 11(c)-(d) is to assure that a plea is
  knowingly and voluntarily made.   See In re Thompson, 166 Vt. 471, 474, 697 A.2d 1111, 1113 (1997).  Toward this end, we have  required a practical
  application of the rule ensuring fairness, rather than a technical formula
  to be  followed.  See State v. Ploof, 162 Vt. 560, 563, 649 A.2d 774,
  776-77 (1994).  The precise  form of the V.R.Cr.P. 11 colloquy may vary
  from case to case, depending on factors such as the  competence of the
  defendant and the complexity of the legal issues.  See In re Hall 143 Vt.
  590,  595, 469 A.2d 756, 758 (1983).  In such inquiries, "[m]atters of
  reality, and not mere ritual,  should be controlling."  Kennedy v. United
  States, 397 F.2d 16, 17 (6th Cir. 1968).  When a  collateral attack is
  brought against the validity of a plea based on alleged violations of
  V.R.Cr.P.  11, we require substantial compliance with the requirements the
  rule. See Thompson, 166 Vt. at  476, 697 A.2d  at 1113-14.   


 

       The reality in this instance is that defendant was represented by
  counsel when he executed a  waiver-of-rights form and a notice-of-plea
  agreement and pleaded guilty to the 1992 charge of  DUI.  Responding to the
  court's inquiry, he asserted that he understood the waiver form and the 
  plea agreement.  Given the straightforward nature of the charge and the
  lack of any evidence that  defendant was not competent to understand his
  situation, we conclude that (1) defendant's  execution of the waiver forms
  and written plea agreement, (2) the court's inquiry confirming that 
  defendant understood these documents, and (3) defendant's stipulation to
  the factual basis for the  charge show substantial compliance with
  V.R.Cr.P. 11.  (FN2) Accordingly, the court did not  err in ruling that
  defendant's 1992 DUI conviction could be used to enhance the penalty for
  his  most recent DUI conviction.

       Because we hold that defendant's 1992 counseled guilty plea was valid,
  we do not reach the  forum and burden of proof issues he raised.

	
       Affirmed.       
    	 		


	                               BY THE COURT:

	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
                                       John A. Dooley, Associate Justice

	                               _______________________________________
                                       James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice
 
	

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                                  Footnotes


FN1.  Defendant objects to the State including a copy of the
  waiver-of-rights form with its brief,  arguing that the document, along
  with the written plea agreement from January 20, 1992, is not  included in
  the record on appeal and that the record does not establish that these
  documents were  presented to the trial judge.  However, the court
  specifically mentions the waiver-of-rights form  in its decision denying
  defendant's motion, and the 1992 case file indeed contains the waiver  form
  and plea agreement, copies of which were submitted by the State.  We
  therefore assume  that the court took judicial notice of the record in the
  1992 case when deciding the motion, and  we also take judicial notice of
  the record in the 1992 case for purposes of this decision. 

FN2.  This case does not present the total failure to comply with V.R.Cr.P.
  11(f) that we  found fatal on appeal in State v. Yates, ___ Vt. ___, ___,
  726 A.2d 483, 488 (Jan 8, 1999).   Here, defendant knew the charge against
  him and agreed that the facts were present to support  the charge.