State v. Currier

State v. Currier (94-097); 171 Vt. 181; 758 A.2d 818 

[Filed 25-Aug-2000]


       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. 94-097


State of Vermont	                         Supreme Court
 
                                                 On Appeal from
     v.	                                         District Court of Vermont,
                                                 Unit No. 2, Franklin Circuit

William Currier	                                 November Term, 1999


Michael S. Kupersmith, J.

James A. Hughes, Franklin County State's Attorney, Derk A. Wadas and Heidi 
  M.L. Brissette, Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, 
  Montpelier, for Defendant-Appellant.


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


       AMESTOY, C.J.   Defendant William Currier, sentenced to a term of
  twenty-years-to-life  imprisonment as a result of a plea agreement, seeks
  to have his sentence vacated with leave to  withdraw his plea to the
  charged offenses.  Defendant contends that the trial court erred by failing
  to  provide him with an opportunity to withdraw his plea after it rejected
  his original plea agreement.   We affirm. 

                                     I.

       On August 19, 1993, defendant William Currier, incarcerated at the
  Northwest Regional  Correctional Facility in Chittenden County on a
  five-to-ten-year aggravated-assault conviction,

 

  escaped from prison.  The following day, he set fire to his ex-wife's home
  in Franklin  County.  Defendant was arrested at the scene of the fire and
  again incarcerated.   On September 8, 1993, defendant was arraigned in
  Chittenden District Court on a charge of  escape.  On November 8, 1993,
  defendant was arraigned in Franklin District Court on three felony  charges
  stemming from the arson: unlawful mischief, unlawful trespass, and arson. 
  The Chittenden  County escape charge was consolidated with the three
  Franklin County charges.  As defendant had  ten prior felony convictions,
  he was eventually charged as a habitual offender pursuant to 13 V.S.A.  §
  11.
    
       At a December 22, 1993, change-of-plea hearing in Franklin District
  Court, defendant  negotiated a plea agreement with the State, which
  provided that he would plead nolo contendere to  all four pending charges
  against him, in exchange for a recommended sentence of fifteen-years-to-
  life imprisonment.  The court stated that it would order a presentence
  investigation (PSI) report from  the Department of Corrections before
  accepting the sentence, and noted defendant's right to  withdraw his plea
  in the event that the court decided on a more severe sentence. [FN1]

 

       The court then went through each of the four charges with defendant,
  and defendant  answered affirmatively that he understood the nature of, and
  maximum possible penalty for, each  charge.  The court engaged defendant in
  a thorough V.R.Cr.P. 11 colloquy regarding the rights he  was giving up by
  pleading nolo contendere.  Defendant answered in the affirmative to each
  question,  acknowledging that he was entering his pleas freely and
  voluntarily.  The court asked for defendant's  plea on each charge, and
  defendant responded no contest.  The court accepted each of defendant's 
  pleas, finding that he entered them "after a knowing waiver of his
  constitutional rights."  Sentencing  was set for January 31, 1994.

       On December 31, 1993, defendant unsuccessfully attempted to escape
  from the Northwest  State Correctional Facility.  Consequently, the State
  brought an additional attempted-escape charge   at the January 31, 1994
  sentencing hearing on the four previous charges.  At this hearing, defense 
  counsel informed the court that defendant and the State had agreed to
  consolidate the new attempted  -escape charge with the prior escape charge,
  and roll both charges into a five-to-ten-year sentence to  be served
  concurrently with the fifteen-years-to-life imprisonment sentence stemming
  from the   August 20, 1993 arson.
    
       The court rejected the plea agreement, basing its decision on threats
  defendant made against  his ex-wife as indicated in the PSI report. 
  Defendant was present to hear the court's decision.  The  court stated that
  its main concern was that the fifteen-year minimum sentence was too short
  because  defendant would become eligible for parole in eleven-to-twelve
  years.  Although the State and  defense counsel alternately argued that the
  plea agreement was sufficient, the court reiterated its  objection to the
  agreement.

       After a recess, defendant returned with a modified plea agreement,
  which provided for a

 

  sentence of fifteen-years-to-life on the three charges stemming from
  the arson consecutive to  a concurrent five-to-ten-year sentence on each
  escape-related charge.  The court asked defendant if  this modification was
  satisfactory to him, and defendant responded that it was. The court turned
  specifically to the new attempted-escape charge, securing defendant's 
  understanding of the nature of the charge and maximum possible penalty, and
  went through a  complete V.R.Cr.P. 11 colloquy with defendant.  Referring
  to the earlier plea agreement and  colloquy, as well as the modification
  the parties had agreed to during the recess, the court asked  defendant if
  he was entering his plea voluntarily.  Defendant answered affirmatively. 
  The court  asked defendant for his plea on the new attempted-escape charge,
  and defendant pled nolo  contendere.
    
       The court then accepted defendant's modified plea agreement and
  sentenced defendant  according to its terms.  Defendant signed a notice of
  plea agreement dated January 31, 1994, as well  as a waiver of rights form
  that stated: "No threats or force have been used against me by anyone to 
  try to make me plead guilty or no contest.  I plead guilty or no contest of
  my own choice, freely and  voluntarily." 

                                     II.

       This appeal has traveled a lengthy route to reach us.  Shortly after
  defendant was sentenced to  twenty-years-to-life imprisonment, he sent a
  letter to the Franklin Family Court, which forwarded it  to Franklin
  District Court, that stated: "I do not wish to appeal my criminal case,
  which resulted in  life imprisonment. Thank you anyways."  State v.
  Currier, 162 Vt. 626, 627, 649 A.2d 246, 246  (1994). Vermont Rule of
  Appellate procedure 3(b) provides that in any criminal case resulting in
  life  imprisonment, appeal to the Supreme Court shall be automatic unless
  the defendant with the advice

 

  of counsel has waived such appeal in writing.

       The court scheduled a hearing on the issue.  At the hearing, the court
  asked defendant  whether he still wanted to give up his right to have the
  case reviewed by the Supreme Court.   Defendant responded, "I don't have
  any comment." The only matter conclusively established at the  hearing was
  that defendant signed the letter waiving his appeal after receiving the
  advice of counsel.  Following the waiver hearing, the State filed a motion
  to dismiss defendant's automatic appeal.   Because the trial court's
  inquiry did not establish that defendant's waiver was made knowingly and 
  intelligently, we denied the State's motion and remanded the matter to the
  trial court for such a  determination.  See Id. at 627, 649 A.2d  at 247.

       Defendant was represented in the trial court by the public defender
  for Franklin and Grand  Isle counties.  After our decision, the public
  defender advised the Court in writing that defendant  did, in fact, wish to
  pursue an appeal.  This, presumably, caused the district court to regard
  our  previous mandate as moot; no further proceedings appear to have taken
  place in that forum.  The  public defender filed a docketing statement
  here, but advised the Court several times in writing  that he did not
  consider himself to be defendant's appellate counsel because he had not
  been  separately appointed pursuant to 13 V.S.A. § 5236(a) (requiring
  defendants to submit separate  application on appeal to receive
  representation at public expense).  On January 29, 1999, noting  the
  unusual circumstances of this case, we ordered the Defender General to
  conduct an appropriate  inquiry and inform the Court in writing whether
  defendant wished to pursue an appeal of his  sentence. See Administrative
  Order 4 § 4 (public defender's representation of defendant continues  until
  court or defender general relieves public defender of appointment or
  separate application for  appointment of appellate counsel denied). 
  Defendant chose to continue with his appeal, represented  by the Defender

 

  General, and we now address his argument.

                                    III.

       Defendant asserts on appeal that the trial court's failure to comply
  with what he describes as  V.R.Cr.P. 11(e)(4)'s "explicit requirement of
  personal address," is equivalent to the error we found  fatal in State v.
  Bergerson, 144 Vt. 200, 475 A.2d 1071 (1984).  There, the defendant agreed
  to a plea  in which the State promised to recommend to the court that no
  jail time be imposed in exchange for  defendant's completed restitution and
  guilty plea.  The court accepted the plea agreement, but  reserved a
  decision on sentencing until it had read the PSI report.  At the sentencing
  hearing, the  court rejected the plea agreement and imposed a sentence that
  included jail time.  Defendant did not  attempt to withdraw his plea, but
  did move to strike the sentence.  The court denied his motion.  We  held
  the court "did not act in accordance with Rule 11 when it subsequently
  failed to afford  defendant an opportunity to withdraw his plea."  Id. at
  203, 475 A.2d  at 1073.  We stated that the  court's actions constituted
  plain error because "[a]t no time . . . during the . . . sentencing
  hearings,  was defendant informed of the right to withdraw his plea."  Id.

       Bergerson was consistent with our previous observation that V.R.Cr.P.
  11(e)(4) was amended  to make clear that a judge's unwillingness to impose
  the sentence agreed upon as the result of a plea  agreement between the
  State and a defendant is always a "fair and just reason" for withdrawal of
  a  plea within the meaning of V.R.Cr.P. 32(d).  See State v. Belanus, 144
  Vt. 166, 169-70, 475 A.2d 227, 229 (1984).  While withdrawal of a guilty
  or nolo contendere plea is within the discretion of a  sentencing court, we
  have consistently held that it is an abuse of discretion to refuse to grant
  a  defendant's motion to withdraw his plea where a sentencing judge decides
  not to follow the sentence  recommended by the plea agreement.  See id. at
  170, 475 A.2d  at 229; see also State v. Wallace, 148

 

       Vt. 631, 631, 532 A.2d 971, 972 (1987) (mem.) ("The court below failed
  to follow the  procedure outlined in V.R.Cr.P. 11 by not affording
  defendant an opportunity to withdraw his plea  after the court rejected the
  plea agreement in favor of a harsher sentence than that contemplated by 
  the agreement."); In re Berrio, 145 Vt. 6, 8, 481 A.2d 1057, 1058 (1984)
  ("When a sentencing court  rejects the recommended sentence in a plea
  agreement, before imposing a greater sentence, it must,  consistent with
  basic notions of judicial fairness, afford the defendant an opportunity to
  withdraw his  guilty or nolo plea.").

       Although defendant attempts to portray this case as squarely within
  the ambit of Belanus,  Bergerson, and their progeny, we are not confronted
  here, as in the cases cited above, with a court's  refusal to allow a
  defendant to withdraw a plea after a rejection of a plea agreement.  Nor is
  this a  case in which the sentence imposed was either an "evident
  surprise," Bergerson, 144 Vt. at 202, 475 A.2d  at 1073, or an "unexpected
  result."  State v. Turgeon, 161 Vt. 561, 561, 641 A.2d 88, 89  (1993). 
  Instead, defendant finds himself in the awkward position of invoking
  V.R.Cr.P. 11(e)(4)  when the court accepted the plea agreement and imposed
  the exact sentence agreed to by the State  and defendant.

       V.R.Cr.P. 11(e)(4) identifies the procedures required when a court
  rejects a plea agreement.

    If the court rejects the plea agreement or defers decision upon
    it, the  court shall inform the parties of this fact, advise the
    defendant  personally in open court that the court is or may not
    be bound by the  plea agreement, pursuant to Rule 32(d) afford a
    defendant who has  already pleaded the opportunity to then
    withdraw his plea, and advise  the defendant that if he persists
    in his plea the disposition of the case  may be less favorable to
    the defendant than that contemplated by the  plea agreement.

       Thus, to properly reject a plea agreement, a court must go through a
  four-step process: first, it must

 

  inform the parties of its rejection; second, it must personally advise the
  defendant in open court that  it is or may not be bound to the agreement;
  third, it must afford the defendant an opportunity to  withdraw the plea
  consistent with Rule 32(d); fourth, it must advise the defendant of the 
  discretionary consequences of persisting in the plea agreement. Defendant
  argues that the court failed to comply with the third part of Rule
  11(e)(4)'s process  because it did not personally advise him of his right
  to withdraw his rejected plea or afford him the  opportunity to do so.  The
  State counters that the court engaged in a colloquy with defendant 
  sufficient to meet Rule 11(e)(4)'s requirements.

       It is important to note - notwithstanding defendant's interest in
  merging them into one - that  there are two plea agreements in this case. 
  The first was rejected by the court.  The second was  accepted.  In
  essence, defendant argues that the court's acceptance of the second
  agreement rendered  the pleas upon which the court relied "involuntary." 
  Significantly, defendant does not assert that the  court failed to comply
  with either V.R.Cr.P. 11(c) ("Advice to defendant"), or V.R.Cr.P. 11(d) 
  ("Insuring that the Plea in Voluntary"), in accepting defendant's pleas on
  December 22, 1993, and  January 31, 1994.

       Nonetheless, defendant asserts that his pleas cannot be determined to
  be truly voluntary.   According to defendant, the court committed error
  when, after informing defendant that it rejected  the original plea
  agreement, and informing defendant that he had a right to withdraw his
  pleas, it  accepted a new plea agreement negotiated by the State and
  defendant without repeating the colloquy  on the four original charges. 
  The court engaged defendant in the following exchange:  

         The Court: We're once again here on the case of William 
    Currier.  There is a new notice of plea agreement which is
    essentially  the same as the first, except that the counts for the
    new escape charge

 

    indicates that the recommended sentence would be fifteen-
    years-to-life, and then there will be an additional sentence of
    five-to-ten years on each of the escape charges . . . which will
    be consecutive  to the fifteen-years-to-life.  This . . . will be
    subject to the  recommendation that defendant be incarcerated
    outside the state of  Vermont.
         Okay, is this modification satisfactory to you, Mr. Currier?
         [Defendant]: Yes, sir.  	

  Defendant's argument exalts ritual over reality.  See State v. Morrissette,
  169 Vt. __, __, 743 A.2d 1091, 1093 (1999).  First and foremost, with
  defendant present, the court announced its  rejection of the original plea
  agreement because it wanted a higher minimum sentence than fifteen  years. 
  As the court prepared to table the matter, it expressly informed defendant
  - albeit in the third  person - of his right to withdraw his plea:  

    [W]e'll inquire of this time if Mr. Currier wishes to withdraw his 
    plea, what we'll do is, we'll set this matter for a status
    conference in  about a week and find out at that time whether Mr.
    Currier wishes to  continue with his plea, or wishes to withdraw
    his plea.

  To put it succinctly, this personal address satisfied V.R.Cr.P. 11(e)(4). 
  Defendant chose not to take  advantage of the opportunity to withdraw from
  his rejected plea.  Instead, defendant readily  acquiesced to the State's
  suggestion for a recess to work out a modified agreement with a longer 
  minimum sentence that would satisfy the court.  

       The court accepted the modified agreement, and defendant answered
  affirmatively that the  new plea agreement was "satisfactory" to him, and
  that he was entering into it voluntarily.   Defendant also signed plea and
  waiver forms memorializing the modified bargain and his  voluntariness in
  entering it.  When defendant presented the modified plea and the court
  accepted it,  V.R.Cr.P. 11(e)(4) no longer applied.  The most relevant rule
  to a determination of voluntariness  then becomes V.R.Cr.P. 11(d), and the
  court scrupulously observed its requirements here.

 

       After engaging defendant regarding the nature and maximum possible
  penalty for the new  attempted-escape charge, the court went through a
  complete V.R.Cr.P. 11 colloquy with defendant.  Referring to the December
  22, 1993, plea agreement and colloquy, the court then addressed  defendant:

         The Court: Aside from the plea agreement that we went over 
    back in December, and then the modification added today, has
    anyone  made any other promises to you or any threats of any kind
    to  somehow try to get you, or induce you to enter the plea?
         Mr. Currier:  No.
         The Court: Are you entering the plea freely and voluntarily?
         Mr. Currier: Yes.

       In contrast to circumstances where a defendant had neither notice that
  the court intended to  impose a greater sentence than the defendant had
  bargained for, nor opportunity to avoid the  consequences, the court here
  acted "consistent with notions of basic judicial fairness."  Berrio, 145 
  Vt. at 8, 481 A.2d  at 1058.  It functionally and practically informed
  defendant of his right to  withdraw the original plea when it rejected the
  recommended minimum sentence, and it allowed  defendant to withdraw his
  plea when it granted the recess to facilitate the working of a new deal 
  between defendant and the State.  Even if the court did not precisely
  comply with V.R.Cr.P. 11's  procedural requirements on the very narrow
  issue of withdrawal of a rejected plea - by perhaps a  more direct, first
  person address to defendant - its careful and thorough handling of this
  case in  virtually every other aspect assured that defendant's plea was
  voluntary and fair.  "We refuse to so  straitjacket the trial courts. 
  Although a more specific and careful enunciation of the Rule 11  elements
  is encouraged, the trial court's substantial compliance with those
  requirements afforded the  defendant fair and just process."  In re Hall,
  143 Vt. 590, 596, 469 A.2d 756, 759 (1983).  Indeed, the  plea proceeding
  afforded defendant here was a far cry from "the total failure to comply"
  with the

 

  rule's procedural and substantive requirements that we have found fatal in
  other cases.   Morrisette, 169 Vt. at __ n.2, 743 A.2d  at 1093 n.2.   Given
  defendant's responses to the court's colloquies, the signed plea and waiver
  forms, his  representation by experienced and competent counsel, and his
  familiarity with criminal proceedings,  we conclude that the court's
  actions here were sufficient to assure that defendant's plea was  voluntary
  and fair.  Simply put, our requirement of a "practical and functional
  application of  V.R.Cr.P. 11 - not as a technical formula, but rather as a
  guideline to insure fairness to a defendant  in the taking of a plea," -
  was met here.  State v. Ploof, 162 Vt. 560, 563, 649 A.2d 774, 776-77 
  (1994).

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice


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                                  Footnotes


FN1.  Vermont Rule of Criminal Procedure 11(e)(2) provides:

    If a plea agreement has been reached by the parties which 
    contemplates entry of a plea of guilty or nolo contendere in the 
    expectation that a specific sentence will be imposed or that other 
    charges before the court will be dismissed, the court shall
    require the  disclosure of the agreement in open court at the time
    the plea is  offered. In a felony case, the prosecuting attorney
    shall also disclose  the reasons for entry into the plea
    agreement. Thereupon the court,  before entry of the plea, may
    accept or reject the agreement, or defer  its decision as to
    acceptance or rejection until there has been an  opportunity to
    consider the presentence report. The plea agreement  shall not be
    binding upon the court nor shall it limit the court in the 
    judgment and sentence to be imposed unless the court accepts the 
    plea agreement under subdivision (e)(3) of this rule.