State v. Yates

State v. Yates  (97-191); 169 Vt. 20; 726 A.2d 483

[Filed 8-Jan-1999]



       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. 97-191


State of Vermont	                     Supreme Court

                                             On Appeal from

     v.	                                     District Court of Vermont,
                                             Unit No. 3, Washington Circuit

Michael Yates	                             May Term, 1998


Edward J. Cashman, J.

       Paul Finnerty, Washington County Deputy State's Attorney, Barre, for
  Plaintiff-Appellee.

       Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
  Montpelier, for Defendant-Appellant.


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


       JOHNSON, J.  Defendant appeals from an order of the Washington
  District Court denying  his motion to withdraw his guilty plea to a charge
  of aggravated domestic assault, arguing that the  trial court did not
  comply with V.R.Cr.P. 11(f).  We reverse and remand for the trial court to
  give  defendant the opportunity to withdraw his plea.

       Defendant agreed to plead guilty to charges of first-degree aggravated
  domestic assault and  simple assault arising out of an altercation
  involving his then-wife and her friend Steve Machia.  The  resulting plea
  agreement provided that defendant would receive a four-year deferred
  sentence on the  domestic assault charge and a zero- to one-year suspended
  sentence on the simple assault charge.  At a November 12, 1996 status
  conference, the trial court accepted the plea agreement, entered  judgment,
  and sentenced defendant according to the agreement.  Defendant subsequently
  signed a  probation order imposing numerous probation conditions.   
       
       On February 13, 1997, defendant was arrested and charged with
  violating four separate  conditions of his probation.  After a merits
  hearing, the trial court found three violations of 

  

  probation.  The court revoked defendant's deferred sentence and continued
  the sentencing  hearing pending a pre-sentence investigation.  The report
  of the pre-sentence investigation was filed  on March 18, 1997, and
  sentencing was set for May 7, 1997.  Thereafter, on May 2, 1997,  defendant
  filed a motion to withdraw his plea of guilty to the charge of aggravated
  domestic assault.  The trial court heard the motion and denied it,
  concluding that defendant had brought it in bad faith  and that he must
  demonstrate actual prejudice in order to withdraw his plea.  The court
  sentenced  defendant to serve the zero- to one-year sentence on the simple
  assault charge, and to serve a  concurrent three- to twelve-year sentence
  on the aggravated domestic assault charge.  This appeal  follows.

                                     I.

       Initially, the State contends that we need not reach the merits of
  this appeal because the court  lacked jurisdiction to consider defendant's
  motion to withdraw his guilty plea pursuant to V.R.Cr.P.  32(d).  Rule
  32(d) provides in relevant part:

     A motion to withdraw a plea of guilty . . . may be made only by a 
     defendant who is not in custody under sentence.  The motion must 
     be made prior to or within 30 days after the date of entry of 
     judgment, except that a defendant whose sentence does not include 
     a term of imprisonment may make the motion at any time. 

       The State contends that defendant was "in custody under sentence"
  because the conditions of his  probation imposed significant restraints
  upon his personal liberty that were sufficient to constitute  custody.  We
  agree with the State that defendant was in custody.  See State v. Wargo,
  ___ Vt.  ___, ___, 719 A.2d 407, 409-10 (1998) (post-sentence probation
  conditions are sufficient to  constitute custody); see also In re Liberty,
  154 Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (indicia  of custody include
  placement under supervision or direction of judicial officer, or
  possibility of  incarceration without formal trial and criminal
  conviction).  Nevertheless, we conclude that  defendant was not "in custody
  under sentence."  V.R.Cr.P. 32(d) (emphasis added).  

       As we recently held in Wargo, a defendant is "in custody under
  sentence" only when the  custody is pursuant to a sentence imposed by the
  court.  See Wargo, 719 A.2d  at 410.  In 

  

  Wargo  the trial court sentenced defendant, then suspended the sentence and
  placed him on probation.  We  concluded that the defendant was "in custody
  under sentence" because the probation was pursuant  to a sentence.  See id.

       Here, however, the court deferred sentencing and placed defendant on
  probation for the  duration of the deferral.  Unlike a suspended sentence,
  a deferred sentence is not a sentence at all.  It is only upon a violation
  of the terms of probation or the deferred sentence agreement that a  court
  may "impose sentence."  See 13 V.S.A. § 7041(b).  Upon fulfillment of such
  terms, the  adjudication of guilty is stricken, and the defendant is
  discharged without ever having been  sentenced.  See id.  Thus, in the
  instant case, while defendant was in custody, he was not in  custody under
  sentence.
       
       The State further argues that the trial court lacked jurisdiction to
  entertain defendant's  motion because it was not filed within 30 days from
  the date that the Rule 32(b) judgment was  entered.  Defendant pleaded
  guilty and agreed to the deferred sentence on November 12, 1996.(FN1)
  Thus, the State concludes that defendant's motion, filed on May 5, 1997,
  was not timely.  Rule 32(d) expressly provides an exception to the 30 day
  requirement, however, for defendants  not sentenced to a term of
  imprisonment.  Such defendants may move to withdraw their plea "at  any
  time."  See V.R.Cr.P. 32(d).  The State makes much of language in the
  Reporter's Notes  stating that this exception is necessary to provide a
  remedy to those defendants who cannot avail  themselves of the statutory
  post-conviction relief because they are sentenced only to pay a fine. 
  Although the State contends this language operates to limit the
  availability of this exception only  to defendants sentenced to pay a fine,
  we conclude that this is merely an illustrative example.  The 
  determinative factor is whether the defendant may avail himself of
  post-conviction relief under 13  V.S.A. § 7131.  Like defendants sentenced
  only to pay a fine, defendants who are on probation  pursuant to a deferred
  sentence are precluded from seeking post-conviction relief 

  

  because they are not "in custody under sentence."  We conclude therefore
  that defendant's  motion was not subject to the 30 day filing requirement. 
  Consequently, the trial court properly  determined that it had jurisdiction
  to hear defendant's motion to withdraw his guilty plea. 

                                     II.

       We now turn to the merits of defendant's appeal.  Defendant argues
  that the trial court  should have permitted him to withdraw his plea of
  guilty to the aggravated domestic assault charge  because the trial court
  failed to explain the elements of the offense to him and failed to
  determine  whether there was a factual basis for the plea as required by
  V.R.Cr.P. 11(f).  We agree that the  court did not conduct a sufficient
  inquiry into the factual basis for the plea. 

       The following represents the full extent of the court's inquiry into
  the facts of the case:

     THE COURT:  Now, what happened that night?  How did 
     you get involved in this mess? 

          * * * 

     [Defendant]:  I was going to go hunting and I came down to 
     get my youngest daughter . . . and I knocked on the door and [my 
     daughter] opened up the door and I was standing on the steps and 
     my wife Susan was standing inside and I asked her if I could come 
     in.  She said it was all right, so I came in.  And [Machia] ki[n]d of 
     grabbed me by the throat and took me up off the ground and was 
     choking me, and I couldn't seem to get him loose.  And my 
     youngest daughter was trying to get him to let me go.  And seeing 
     how I couldn't get him loose, I had my nine millimeter in my back 
     that I take with me when I go hunting.  It had been empty, but I 
     figured maybe I could scare him and I scared him out of the house.

     THE COURT:  Well, that's a defense.
 
     [Defendant]:  Yes, well, it's the truth.
 
     [State's Attorney]:  Well, there is some dispute as to what 
     the facts are, Judge.

     THE COURT:  I didn't express that I necessarily believed 
     him or disbelieved him.  I understand there's a different side of this 
     case, but I want to work this side of the case first. 

  In its colloquy with defendant, the court elicited from defendant only
  facts concerning 

  

  the altercation with Machia.  No mention was made of any altercation with
  defendant's  wife or any conduct with respect to her that could have formed
  the basis for the charge of  aggravated domestic assault.

       This failure to question defendant as to the factual basis with
  respect to the aggravated  domestic assault charge is a substantial--in
  fact, total--violation of Rule 11(f). Rule 11(f) requires  that,
  "[n]otwithstanding the acceptance of a plea of guilty, the court should not
  enter a judgment  upon such plea without making such inquiry as shall
  satisfy it that there is a factual basis for the  plea."  While the court
  may obtain facts from other sources, including the prosecutor and the pre-
  sentence report, see Reporter's Notes, V.R.Cr.P. 11, ultimately, the
  court's inquiry into the  accuracy of the plea must be addressed personally
  to the defendant.  This is because the factual  basis for the plea may
  consist only of facts that defendant has admitted during the proceedings at 
  which the plea is entered.  While few Vermont cases have turned on an
  interpretation of Rule  11(f), those that have consistently require that
  the defendant admit to and possess an understanding  of the facts as they
  relate to the law for all elements of the charge or charges to which the 
  defendant has pleaded.  See In re Dunham, 144 Vt. 444, 450, 479 A.2d 144,
  148 (1984) (Rule  11(f) violated where factual basis for single element of
  charge not established); In re Kasper, 145  Vt. 117, 120, 483 A.2d 608, 610
  (1984) ("The record must reveal that the elements of each  offense were
  explained to the defendant and that a factual basis for each element was
  admitted.");  cf. In re Kivela, 145 Vt. 454, 459, 494 A.2d 126, 129 (1985)
  (no violation of Rule 11(f) where  charges were read to defendant and
  defendant admitted to acts underlying each offense).  This  interpretation
  is supported by an analysis of Rule 11(f) in the context of the rule as a
  whole and  by the United States Supreme Court's interpretation of the
  federal counterpart to Rule 11.  

       The purpose of the federal version of Rule 11, upon which Vermont's
  Rule is based, see  Reporter's Notes, V.R.Cr.P. 11, is 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.  See McCarthy v. United States, 394 U.S. 459, 465
  (1969) (Rule  11 "is designed to assist the [trial] judge in making the
  constitutionally required determination that  a defendant's guilty plea is
  truly voluntary").  Rule 11 accomplishes this through a series of 
  substantive and procedural requirements.  For instance, Rule 11(c) requires
  that a court address  the defendant personally and in open court to
  determine that the defendant understands, among  other things, the nature
  of the charge.  See V.R.Cr.P. 11(c).  Rule 11(d) requires the court to 
  address the defendant to determine that the plea is in fact voluntary.  See
  V.R.Cr.P. 11(d).  Rule  11(f) requires an inquiry into the factual basis or
  accuracy of the plea.  See V.R.Cr.P. 11(f).   Finally, Rule 11(g) requires
  that 

     [a] verbatim record of the proceedings at which the defendant enters 
     a plea shall be made and, if there is a plea of guilty or nolo 
     contendere, the record shall include, without limitation, the court's 
     advice to defendant, the inquiry into the voluntariness of the plea 
     including any plea agreement, and the inquiry into the accuracy of 
     a guilty plea.

  V.R.Cr.P. 11(g).

       Rule 11(g) provides the procedural mechanism for implementing Rules
  11(c), 11(d), and  11(f).  See Reporter's Notes, V.R.Cr.P. 11.  It leaves
  no room for doubt that the inquiry into the  factual basis for the plea
  must be recited during the proceedings at which the defendant enters the 
  plea.  By failing to do so, the trial court in this case violated both Rule
  11(g), the procedural  requirement, and Rule 11(f), the substantive
  requirement that Rule 11(g) seeks to implement.  The  fact that the court's
  advice to defendant, the inquiry into voluntariness of the plea, and the
  inquiry  into accuracy are all required to appear in the transcript of the
  plea proceeding inevitably leads  to the conclusion that all three
  requirements must be met through personal address of the  defendant.

       This is in accord with the United States Supreme Court's
  interpretation of the federal  counterpart to Rule 11.  McCarthy, the
  principal case on Rule 11, has been unanimously adopted  in Vermont.  See
  State v. Ibey, 134 Vt. 140, 142, 352 A.2d 691, 692 (1976).  The Court held 

  

  in McCarthy that a trial judge must personally address the defendant to
  determine  compliance with Rule 11.  See McCarthy, 349 U.S.  at 467.  The
  reason for this strict requirement  is to avoid any confusion or
  uncertainty as to whether a defendant's plea was voluntary, and thus  to
  reduce the number of post-conviction challenges to pleas.  See id. at
  466-67. 

       McCarthy concerned an allegation that the trial court violated the
  federal version of Rule  11 by failing to establish that the defendant
  understood the nature of the charge.  The Court held  that "[t]he judge
  must determine 'that the conduct which the defendant admits constitutes the 
  offense charged.'" See id. at 467 (citing Notes of Advisory Committee on
  Criminal Rules, Fed.  R. Crim. P. 11).  This necessarily requires a
  conversation with defendant regarding whether or  not the defendant admits
  to the alleged conduct.  McCarthy makes the purpose of this requirement 
  clear:
  
     Requiring this examination of the relation between the law and the 
     acts the defendant admits is designed to "protect a defendant who 
     is in the position of pleading voluntarily with an understanding of 
     the nature of the charge but without realizing that his conduct does 
     not actually fall within the charge."  

     To the extent that the [trial] judge thus exposes the 
     defendant's state of mind on the record through personal 
     interrogation, he not only facilitates his own determination of a 
     guilty plea's voluntariness, but also facilitates that determination in 
     any subsequent post-conviction proceeding based upon a claim that 
     the plea was involuntary.

  Id. at 467 (citing Notes of Advisory Committee on Criminal Rules, Fed. R.
  Crim. P. 11).  The  accuracy of the factual basis goes to the defendant's
  understanding of the relationship between the  law and the facts,(FN2)
  which ultimately goes to voluntariness.  See Kasper, 145 Vt. at 119, 483 A.2d  at 610-11 (where court did not explain law in relation to facts, plea
  is not entered knowingly  and voluntarily); Dunham, 144 Vt. at 449, 479 A.2d  at 147 ("[A] violation of Rule 11(f) goes  directly to the
  voluntariness of the plea as articulated in Boykin.").  The defendant's 
  understanding cannot be probed except through personal interrogation, which
  then appears in the  record of the proceedings.

       In this case, an affidavit of the arresting officer contained a
  description of an altercation  between defendant and his then-wife. 
  Although our holding in State v. Whitney, 156 Vt. 301,  303, 591 A.2d 388,
  389 (1991), suggested that an affidavit alone might form a sufficient
  factual  basis for a plea of guilty, Rule 11(g) and the decision of the
  United States Supreme Court in  McCarthy make clear that, absent a
  confirming colloquy with the defendant, a court's own  knowledge of certain
  facts cannot satisfy the requirements of Rule 11(f).  We therefore clarify
  that  Whitney stands only for the proposition that an affidavit may be a
  source of facts to support the  plea, but that the defendant must
  subsequently admit to these facts in the plea colloquy to  demonstrate that
  there is a sufficient factual basis.

       The McCarthy decision states that an additional purpose of Rule 11 is 

     to produce a complete record at the time the plea is entered of the 
     factors relevant to [the] voluntariness determination.  Thus, the 
     more meticulously the Rule is adhered to, the more it tends to 
     discourage, or at least to enable more expeditious disposition of, the 
     numerous and often frivolous post-conviction attacks on the 
     constitutional validity of guilty pleas.

  McCarthy at 465.  Had the trial court observed Rules 11(f) and 11(g) in
  this case, it is possible  that this guilty plea could have stood.  Absent
  the required record, doubt as to the plea's  voluntariness compels
  reversal.

  

                                    III.

       We agree with the State's assertion that, because defendant's Rule
  32(d) motion was made  after his sentence was deferred, defendant may
  withdraw his plea only if he demonstrates manifest  injustice.  See
  V.R.Cr.P. 32(d) (where motion to withdraw plea of guilty is made "before
  sentence  is imposed or deferred," withdrawal may be permitted for any fair
  and just reason, however,  where motion is made "after sentence," manifest
  injustice must be demonstrated).  We interpret  "after sentence" in this
  context to mean after sentence is imposed or deferred, as this
  interpretation  renders the Rule's provisions consistent with one another. 
  Allowing a guilty plea to stand when  the record discloses no factual basis
  for the plea "would work a complete miscarriage of justice."  Dunham, 144
  Vt. at 451, 479 A.2d  at 148.  We therefore conclude that defendant has made
  the  requisite showing. 

       In light of this holding, we need not reach defendant's other
  argument.

       Reversed and remanded.


                               FOR THE COURT:



                               _______________________________________
                               Associate Justice

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

FN1.  We assume without deciding that this is the proper date from
  which the 30 day period  is calculated.  See V.R.Cr.P. 32(b). 

FN2.  The inquiry into whether there is a factual basis for the plea
  is thus a necessary  predicate for a finding that a defendant understood
  the nature of the charge.  This is required  by Rule 11(c), which, though
  not raised by defendant in his brief, was also violated by the  court when
  it failed to inquire into the factual basis of the aggravated domestic
  assault charge  and failed to mention in even the most cursory manner the
  elements of the charge.  We have  previously held that a mere technical
  violation of Rule 11(c) will not invalidate a guilty plea  absent a showing
  of prejudice.  See In re Hall, 143 Vt. 590, 594-95, 469 A.2d 756, 759 
  (1983) (court is not required to read verbatim rights enumerated in Rule
  11(c)).  However, our  holding in Hall was specifically limited to
  technical violations of the rule, and therefore does  not govern a
  situation where, as here, a colloquy on a charge was entirely omitted. 
  Under  such circumstances, a violation of Rule 11(c), the function of which
  is to assure that the  knowing requirement of Boykin is met, may also be
  manifest injustice.  See discussion infra  Section III.