State v. Thompson

State v. Thompson  (96-183); 167 Vt. 383; 708 A.2d 192

[Filed 16-Jan-1998]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 96-183


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 2, Addison Circuit

                                                  June Term, 1997
Richard Thompson


Matthew I. Katz, J.

       John T. Quinn, Addison County State's Attorney, Middlebury, for
  plaintiff-appellee.

       Robert Appel, Defender General, William A. Nelson, Appellate Attorney,
  Montpelier, and Larry S. Novins, Public Defender, Middlebury, for
  defendant-appellant.


PRESENT:  Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.

       JOHNSON, J.   Defendant, who received a one-year suspended sentence
  after entering a conditional no-contest plea to a charge of simple domestic
  assault, 13 V.S.A. § 1042, argues on appeal that the trial court erred in
  (1) finding him competent to stand trial and enter a plea, and (2) failing
  to engage in the colloquy required by V.R.Cr.P. 11(c).  Because we agree
  with defendant's second argument, we vacate the plea and conviction without
  addressing his first argument.

       At arraignment, after defense counsel stated that he had substantial
  questions about defendant's capacity to understand the proceedings, the
  district court ordered an out-patient evaluation of defendant's competency. 
  The examining psychiatrist's report to the court, which was based on a
  one-hour interview, indicated that defendant is a person with mild mental
  retardation, having an intelligence quotient below 70.  The report also
  noted that defendant is illiterate and has a history of alcohol abuse. 
  According to the report, defendant has a severely

 

  limited fund of information and a severely compromised ability to engage in
  abstract reasoning.

       The examining psychiatrist also addressed in his report, albeit
  briefly, defendant's understanding of the legal process and the specific
  charge against him.  The psychiatrist concluded that defendant was
  "marginally competent" to stand trial, but acknowledged that defendant's
  "incomplete understanding of the events of the assault as well as his
  mental limitations will undoubtedly handicap his defense preparation."

       Both the psychiatrist and defendant testified at the competency
  hearing, held a few months later.  The psychiatrist restated his conclusion
  that defendant was marginally competent.  He testified that defendant had
  "sort of an understanding" of the legal issues, and opined that if the
  situation "were spelled out [defendant] could have a good global
  understanding of what he apparently or allegedly had done."  The
  psychiatrist also stated that he thought defendant would be able to
  understand different aspects of the legal system if they were explained to
  him carefully.  Based on the psychiatrist's testimony, and notwithstanding
  defendant's testimony demonstrating his limited understanding of the
  proceedings against him, the court found defendant competent to stand
  trial.

       Seven months later, defendant appeared for a status conference before
  a different judge. Defense counsel informed the court that defendant did
  not want to have a trial, but expressed serious reservations about his
  client's level of understanding.  Counsel requested that the court be
  especially careful in assuring that defendant understood the rights he was
  giving up.  When the judge asked defendant what a trial was, defendant
  responded, presumably referring to one of the police officers who had
  questioned him on the night of the assault, "He'll come back.  At the trial
  he'll come back here. . . .  Same deal over.  And I don't want it."  The
  judge then asked defendant if he understood that a trial would be about
  whether or not he hit the victim. Defendant replied, "I did hit her.  I'm
  guilty."  The judge explained that at trial, the victim would testify and
  the State would have to prove that defendant hit her.  Defendant responded,
  "I did it. . . .  I don't need to prove it."

 

       Following a few more brief exchanges between defendant and the court,
  the court announced that it would accept the plea.  Defense counsel then
  asked the court if he could question defendant.  In response to further
  questioning from his counsel, defendant explained that the role of the jury
  is to "talk to me."  Asked about the job of the judge, defendant replied,
  "I might win. . . .  Well, she might win and I might lose."  Counsel then
  asked:

     Q: Do you know in a trial who decides if you hit [the victim] or
        didn't hit [the victim]?
     A: Yeah.
     Q: Who?
     A: I hit her.
     Q: But in a trial who would decide that?
     A: Her.
     COUNSEL: This is my concern, Judge.
     THE COURT: Well, it's a valid concern.

  Nevertheless, the court declined to revisit the competency issue, reasoning
  that the first judge had held a full hearing on the issue, with the benefit
  of the psychiatrist's report and testimony.  The court accepted defense
  counsel's request for a conditional plea, which reserved defendant's right
  to appeal the competency issue.  Defense counsel did not raise any issue
  regarding V.R.Cr.P. 11.  This appeal followed.

       Because we conclude that the second judge failed to satisfy Rule 11(c)
  before accepting defendant's plea, we need not decide either whether the
  first judge erred in finding defendant competent to stand trial or whether
  the second judge erred in refusing to reconsider the first judge's
  competency ruling.  Even assuming that the second judge was justified in
  relying on the initial competency determination, the record does not
  support his acceptance of defendant's plea.

       A finding that a defendant is competent to stand trial is not all that
  is necessary before he may be permitted to enter a plea; the trial court
  must satisfy itself that the waiver of constitutional rights is knowing and
  voluntary.  See Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993).  The focus
  of a competency inquiry is on whether the defendant has the capacity to
  understand the proceedings, while the focus of a plea inquiry, aside from
  assuring that the decision is not coerced, is on whether the defendant does
  understand the significance and

 

  consequences of the decision to enter a plea rather than proceed to trial. 
  Id.  The required advice contained in Rule 11(c)(FN1) seeks to assure that
  decisions to plead guilty or no contest are knowing and voluntary.

       Here, given defense counsel's continuing difficulty in communicating
  with his client, and the close question over whether defendant was
  competent to stand trial, it was imperative for the court at the status
  conference to assure that defendant fully understood the rights he would be
  waiving by entering his plea.  Instead, the court accepted defendant's
  no-contest plea after only a brief colloquy that hardly touched on the
  requirements of Rule 11(c).

       From this brief colloquy, we may assume that defendant was aware of
  the nature of the charges, and even that the plea was free of coercion, but
  we cannot be assured that defendant was aware of the direct consequences of
  entering the plea, let alone the particular potential penalties involved. 
  Considering that the court was fully aware of defendant's mental
  limitations, its failure to engage defendant in the required Rule 11
  colloquy undermines confidence in the outcome of

 

  the proceedings and thus was plain error.  See State v. Johnson, 158 Vt.
  508, 513, 615 A.2d 132, 135 (1992) (while there are no precise criteria, in
  general plain error exists when examination of record in case raises doubt
  about outcome of proceedings); United States v. Quinones, 97 F.3d 473, 475
  (11th Cir. 1996) (failure to satisfy any of Rule 11's core objectives --
  ensuring that plea is free of coercion and that defendant understands
  nature of charges against him and direct consequences of guilty plea --
  violates defendant's substantial rights and thus is plain error).
  Accordingly, we vacate defendant's plea and the resulting sentence.

       Because we find plain error in accepting the plea, we need not address
  defendant's request that we limit State v. Thompson, 162 Vt. 532, 534, 650 A.2d 139, 140 (1994) (absent plain error, claim of error under Rule 11(c)
  demands factual record and opportunity for trial court to grant relief
  before it may be reviewed in Supreme Court) to cases in which a defendant
  has a remedy under the motion-to-withdraw provisions of V.R.Cr.P. 32(d). 
  If the State elects to continue its prosecution of defendant, defendant may
  once again ask the district court to revisit its earlier competency
  determination.

       Reversed and remanded.



                               FOR THE COURT:



                               
                               ____________________________________
                               Denise R. Johnson, Associate Justice



  -----------------------------------------------------------------------------
                                  Footnotes



FN1.  Rule 11(c) of the Vermont Rules of Criminal Procedure provides:

       Advice to Defendant.  The court shall not accept a plea of guilty or
  nolo contendere without first, by addressing the defendant personally in
  open court, informing him of and determining that he understands the
  following:
       (1) the nature of the charge to which the plea is offered;
       (2) the mandatory minimum penalty, if any, and the maximum possible
  penalty provided by law for the offense to which the plea is offered and,
  when applicable, that the court may also order the defendant to make
  restitution to any victim of the offense;
       (3) that the defendant has the right to plead not guilty, or to
  persist in that plea if it has already been made;
       (4) that if his plea of guilty or nolo contendere is accepted by the
  court there will not be a further trial of any kind, so that by so pleading
  he waives the privilege against self-incrimination, the right to a trial
  by jury or otherwise, and the right to be confronted with the witnesses
  against him;
       (5) if there is a plea agreement and the court has not accepted it
  pursuant to subdivision (e)(3) of this rule, that the court is not limited,
  within the maximum permissible penalty, in the sentence it may impose; and
       (6) if the court intends to question the defendant under oath, on the
  record, and in the presence of counsel about the offense to which he has
  pleaded, that his answers may later be used against him in a prosecution
  for perjury or false statement.