In re E.F.
Annotate this Case
In re E.F. (2003-424); 177 Vt. 534; 862 A.2d 239
2004 VT 79
[Filed 24-Aug-2004]
ENTRY ORDER
2004 VT 79
SUPREME COURT DOCKET NO. 2003-424
JUNE TERM, 2004
In re E.F., Juvenile } APPEALED FROM:
}
} Addison Family Court
}
} DOCKET NO. 15-3-03 Anjv
Trial Judge: Helen M. Toor
In the above-entitled cause, the Clerk will enter:
¶ 1. E.F., an eleven-year-old child, appeals from an adjudication
of delinquency for aiding an attempt to poison. The Addison County Family
Court found E.F. delinquent without trial, based solely on facts stipulated
by his attorney. Because the family court did not conduct a Vermont Rule
of Criminal Procedure 11(c) colloquy regarding these admissions, we find
plain error and reverse.
¶ 2. E.F. delivered what he thought was poisonous silica gel to two
friends at school, who put some of the gel into a teacher's coffee. The
State filed a petition for delinquency against E.F. charging him with
aiding in the commission of a felony - an attempted poisoning - "in
violation of 13 V.S.A., Section 2305 and 13 V.S.A., Section 3." (FN1) At
the preliminary hearing, E.F. denied the petition. E.F. then filed a
motion to dismiss on grounds that neither attempt, nor the underlying
offense, 13 V.S.A. § 2306 (poisoning), could be proved because silica gel
is not poisonous. The family court denied the motion, ruling that an
attempted poisoning conviction could follow "[i]f the State can prove that
[E.F.] intended to place a poisonous substance into a drink to hurt
someone."
¶ 3. At the June 19, 2003 status conference, E.F.'s attorney
entered into an agreement with the State to submit a set of stipulated
facts from which the court would decide the case on the merits without a
hearing. E.F.'s attorney agreed to submit the following stipulated facts:
1. On January 30, 2003, E.F. learned that M.S. and J.K. planned
to poison[], a teacher at [their school].
2. M.S. told E.F. that J.K. was going to bring in some "shoe
poison," by which M.S. meant silica gel, a substance that is
packed in shoe boxes.
3. On January 31, 2003, E.F. brought some silica gel into school
and gave it to J.K. E.F. intended that M.S. and J.K. place the
silica gel in [the teacher's] coffee.
4. M.S. and J.K. put the silica gel into [the teacher's] coffee.
5. [The teacher] drank a portion of the coffee.
6. Silica gel is not poisonous; however, the labels generally
read "Throw Away. DO NOT EAT."
7. E.F. believed that silica gel was poisonous. E.F. intended
that [the teacher's] ingestion of the substance would injure her.
8. [The teacher] suffered no physical harm as a result of this
conduct.
No merits hearing was conducted. Based on the stipulated facts, the court
again concluded that impossibility - the fact that silica gel is not
poisonous - was no defense and adjudicated E.F. a delinquent child for
"aiding in the commission of a felony, i.e., the attempt to poison."
Although E.F. was never charged with attempt under 13 V.S.A. § 9, the court
indicated in a footnote that it incorporated the charge of attempt because
the defendant noted "that the charge apparently intended also to refer to
13 V.S.A. [§] 9, the attempt provision, and the State agree[d]."
¶ 4. Following its decision, the court held a disposition hearing,
at which E.F., his parent/guardians, and his counsel were present, and
imparted its disposition based upon the stipulated facts. Nowhere does the
record reflect that the court conducted a Rule 11 colloquy at any time,
either prior to accepting the stipulated facts, or prior to entering the
disposition order based upon those facts.
¶ 5. Petitioner argues on appeal that the court's failure to
conduct a Rule 11 colloquy is plain error. "Rule 11 is designed to 'assure
compliance with the requirements set forth in Boykin v. Alabama, 395 U.S. 238, 242-43 (1969): that a defendant's plea of guilty must be knowing and
intelligent.' " State v. Cleary, 2003 VT 9, ¶ 15, 175 Vt. 142, 824 A.2d 509 (quoting State v. Yates, 169 Vt. 20, 25, 726 A.2d 483, 486 (1999)).
Before accepting a plea of guilty or nolo contendere, Rule 11(c) requires
the court to address the defendant, explaining and determining that he
understands the nature of the charges to which the plea is offered, the
minimum and maximum penalties, that defendant has the right to plead not
guilty, and that defendant is waiving his rights against self-incrimination
and to a jury trial. State v. Marku, 2004 VT 31, ¶ 21, 15 Vt. L. Wk.
101, 850 A.2d 993 (mem.) . Rule 11(d) requires the court to address the
defendant to determine that the plea is voluntary, and Rule 11(f) requires
an inquiry into the factual basis for the plea. Id.
¶ 6. The State contends that a Rule 11 colloquy was not
required because E.F. did not plead guilty or admit to the charged offense,
see V.R.F.P. 1(a)(3) (modifying V.R.Cr.P.11 in juvenile proceedings so that
admissions and denials replace pleas of guilty and not guilty), but rather
conceded the elements charged and contested whether they proved a crime at
all. The State's sole support for this proposition is State v. Loveland,
in which we held that a defendant's implicit concession to elements of an
offense is not "plain error per se." 165 Vt. 418, 422, 684 A.2d 272, 275
(1996). The State also argues that E.F. was not prejudiced by the lack of
a Rule 11 colloquy since the facts admitted by stipulation were
incontestable. Id., 684 A.2d at 275-76 (defendant not prejudiced by
implicit waiver of certain elements of charged offense because concessions
- age and marital status of six-year-old sexual abuse victim - were beyond
dispute).
¶ 7. The State's reliance on Loveland is misplaced. Loveland
involved an attorney's tactical stipulation to certain undisputed elements
of the charged offense at trial while his client was present. Id. at
419-20, 684 A.2d at 274. Here, in contrast, E.F.'s attorney admitted in
writing every element of the charged offense. Some of those factual
admissions, such as proof of intent to poison, were by no means facts that
could be considered beyond dispute. Moreover, because the net effect of
the attorney's wholesale admissions was to waive E.F.'s right to trial and
privilege against self-incrimination, it was necessary to apply Rule 11's
procedural safeguards. See In re J.M., 172 Vt. 61, 63, 769 A.2d 656,
658-59 (2001) (finding plain error where family court accepted juvenile's
conditional plea without Rule 11 colloquy).
¶ 8. In addition, as we explained in In re J.M., special rules
govern pleas, or in this case, wholesale admissions, in juvenile
proceedings.
V.R.F.P. 6(d)(3) provides specifically that the court may not
accept a juvenile's waiver of constitutional rights or admission
unless it determines, among other things, that there is a factual
and legal basis for the waiver or admission, that the attorney has
investigated the relevant facts and law and consulted with the
juvenile, and that the juvenile has entered into the waiver or
admission knowingly and voluntarily.
Id., 769 A.2d at 658. (FN2) See also Pettengill v. Gilman, 126 Vt. 387, 388,
232 A.2d 773, 774 (1967) ("[T]he authority of counsel and guardian
appointed to represent a minor in litigation does not include the power to
submit his case on conceded facts.").
¶ 9. Here, there was no attempt at a Rule 11 colloquy or review
under V.R.F.P. 6(d)(3). Based on the record, we do not know if E.F. or his
parents consented to, or even knew the content of, the stipulated facts.
Nor do we know if E.F. or his parents understood that his attorney had
effectively waived E.F.'s constitutional right against self incrimination.
Moreover, there is evidence that E.F. and his parents may not have
understood the charges made against him. The State's petition mistakenly
referred to a charge of justifiable homicide under 13 V.S.A. § 2305,
instead of the intended charge of poisoning under 13 V.S.A. § 2306.
Despite repeated reference to poisoning, the court's ruling on the merits
continued to refer to 13 V.S.A. § 2305. Furthermore, the State's petition
omitted any charge of attempt under 13 V.S.A. § 9. While attempt is
considered a lesser included offense of any charged felony, see 13 V.S.A. §
10; State v. Young, 139 Vt. 535, 542, 433 A.2d 254, 258 (1981), the
petition was never amended to conform to the evidence and the court
included attempt only by reference in a footnote to its ruling. A simple
colloquy might have prevented these convolutions.
¶ 10. The absence of a meaningful colloquy, particularly under
these circumstances, leaves a blank record as to whether E.F.'s admission
via stipulation of the facts was knowing, voluntary, or in his best
interests, and, therefore, constitutes plain error. Accordingly, the
delinquency adjudication is reversed. Given this result, we do not
consider E.F.'s other arguments.
Reversed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
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Footnotes
Note: Chief Justice Amestoy was present when the case was submitted on the
briefs but did not participate in this decision.
FN1. The State mistakenly referred to section 2305, which addresses
justifiable homicide, instead of section 2306 which criminalizes poisoning.
FN2. V.R.F.P. 6(d) applies to cases in which the court has appointed a
guardian ad litem. In the present case E.F.'s parents act as guardians ad
litem. See V.R.F.P. 1(c).
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