State v. Cleary

Annotate this Case
State v. Cleary (2001-289); 175 Vt. 142; 824 A.2d 509

2003 VT 9

[Filed 07-Feb-2003]

[Motion for Reargument Denied 06-Mar-2003]


       '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.


                                  2003 VT 9

                                No. 2001-289


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 3, Lamoille Circuit

  Donald R. Cleary	                         May Term, 2002


  Alan W. Cook, J.

  William H. Sorrell, Attorney General, and David Tartter, Assistant
    Attorney General, Montpelier, for Plaintiff-Appellee.

  Matthew F. Valerio, Defender General, and William A. Nelson and Anna
    Saxman, Appellate Defenders, Montpelier, for Defendant-Appellant.


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


       ¶  1.  MORSE, J.   Defendant Donald Cleary appeals following his
  guilty plea to charges of attempted sexual assault and lewd and lascivious
  conduct.  He argues that the district court erred by finding him competent
  to stand trial contingent upon his receiving the aid of a cognitive
  facilitator.  He also argues that the trial court violated V.R.Cr.P. 11
  during the plea hearing by failing to personally address him, establish his
  knowing and intelligent waiver of his rights, and elicit his acknowledgment
  of a factual basis for the charges.  We conclude that the record supports
  the district court's competency finding, and that defendant has failed to
  demonstrate that any Rule 11 deficiencies amounted to plain error. 
  Accordingly, we affirm. 
   
       ¶  2.  Defendant is a mentally retarded, thirty-six-year-old
  resident of Hyde Park with an IQ (intelligence quotient) between sixty-five
  and seventy.  While his IQ has remained constant over time, his functional
  abilities have improved.  Defendant lives independently and is employed as
  a logger.

       ¶  3.   On three occasions prior to 1991, defendant was charged with
  criminal offenses but found incompetent to stand trial.  Since then,
  however, he has twice been found competent to stand trial.  In 1991, he
  pled guilty to charges of unlawful trespass, simple assault, and attempted
  sexual assault.  In 1999, he pled guilty to a charge of unlawful trespass
  based on an incident in which he entered a woman's home.  The present
  charges stem from an alleged sexual assault against his mother.

       ¶  4.  In connection with those charges, defendant was evaluated by
  two experts, Dr. Cotton and Dr. Kinsler.  Both experts initially found
  defendant incompetent to stand trial and agreed that the determination was
  a "close call."  Dr. Cotton later changed his opinion and found defendant
  competent based on material that neither he nor Dr. Kinsler had reviewed
  before making their initial determinations, including depositions by mental
  health workers who had supervised defendant and a 1998 competency
  evaluation by another expert.  Dr. Cotton's revised opinion was based on
  information suggesting that defendant could communicate and cooperate with
  his mental health supervisors, plan and accomplish goals, and live
  independently.  Dr. Cotton also considered evidence that defendant had
  willfully manipulated his capacities over time to satisfy his needs.
   
       ¶  5.  In a lengthy decision filed on October 16, 2000, the district
  court found defendant competent to stand trial, noting, among other things,
  that (1) he had the mental capacity to communicate with counsel and make
  choices after weighing the risks and benefits of the various options; (2)
  he had considerable experience with the criminal justice system; (3) he had
  a basic understanding of his Fifth and Sixth Amendment rights; and (4) he
  knew the roles and functions of his attorney, the prosecutor and the judge.
  ¶  6.  The court cautioned, however, that defendant did not fully
  understand the function and role of the jury because he had never gone to
  trial.  Nevertheless, the court concluded that, with careful explanation
  and accommodation, defendant could develop a sufficient understanding of
  the jury's role at trial, and that with such support he would be competent
  to stand trial.

       ¶  7.  Following the competency decision, defendant elected to plead
  guilty to the charges with the understanding that the State would propose a
  ten-to-twenty-year sentence.  At the November 20, 2000 change-of-plea
  hearing, the trial court suggested that, given defendant's limitations, the
  Rule 11 colloquy might be more effective if defense counsel asked the
  questions, with the court assuring itself that the plea was knowing and
  intelligent.  Defense counsel indicated it was a good idea and proceeded to
  ask defendant a series of questions.  The court also asked questions of its
  own.  Following the colloquy, the court expressed its satisfaction, based
  on defendant's demeanor and his periodic conferences with his counsel, that
  defendant understood the terms and consequences of his plea.

       ¶  8.  The sentencing hearing was held approximately six months later,
  on May 14, 2001.   At the hearing, the court sentenced defendant to a term
  of ten-to-twenty years for sexual assault, and four-to-five years, to be
  served concurrently, for the lewd and lascivious conduct.  Defendant filed
  an appeal within thirty days of the sentencing decision.

                                     I.
   
       ¶  9.  Defendant first argues on appeal that the district court
  erred by finding him competent to stand trial contingent upon him receiving
  the assistance of a cognitive facilitator.  The State denies that the
  district court made its finding of competency contingent upon the
  assistance of a cognitive facilitator, but contends, in any event, that
  defendant's unconditional guilty plea waived his right to any direct appeal
  of the competency determination.

       ¶  10.  We first consider the State's latter contention.  It is
  generally true, as the State notes, that a voluntary guilty plea waives all
  non-jurisdictional defects in the proceedings leading up to the plea. 
  State v. Armstrong, 148 Vt. 344, 346, 533 A.2d 1183, 1184 (1987).  There
  are, however, exceptions to this general proposition.  See, e.g., United
  States v. Muench, 694 F.2d 28, 34 (2d Cir. 1982) (allowing direct appeal
  challenging effective assistance of counsel, notwithstanding usual waiver
  rule).  Several courts have specifically held that a "defendant's plea of
  guilty or no contest does not preclude the defendant from raising on direct
  appeal the issue of competency to plead or stand trial."  Nebraska v. Wead,
  609 N.W.2d 64, 68 (Neb. Ct. App. 2000); see also  Michigan v. Parney, 253 N.W.2d 698, 700 (Mich. Ct. App. 1977) ("defendant's later guilty plea did
  not waive the alleged error arising from the prior competency
  determination"); People v. Armlin, 332 N.E.2d 870, 874 (N.Y. 1975) (holding
  that guilty plea did not waive defendant's right to challenge his
  competency to stand trial on direct appeal).  In a different context, the
  United States Supreme Court observed that "it is contradictory to argue
  that a defendant may be incompetent, and yet knowingly or intelligently
  'waive' his right to have a court determine his capacity to stand trial." 
  Pate v. Robinson, 383 U.S. 375, 384 (1966) (holding in habeas proceeding
  that defendant did not waive issue of competence to stand trial by failing
  to demand competency determination at trial court level). We agree, and
  thus will treat appeals of competency determinations as an exception to the
  waiver rule.
   
       ¶  11.  We now return to the merits of defendant's competency
  argument.  The test of competency to stand trial is whether the defendant
  "has sufficient present ability to consult with his lawyer with a
  reasonable degree of rational understanding - and whether he has a rational
  as well as factual understanding of the proceedings against him."  Dusky v.
  United States, 362 U.S. 402, 402 (1960) (per curiam); accord State v. Bean,
  171 Vt. 290, 294, 762 A.2d 1259, 1262 (2000).  The standard of competency
  required to plead guilty is the same as the standard required to stand
  trial.  Godinez v. Moran, 509 U.S. 389, 398 (1993); State v. Lockwood, 160
  Vt. 547, 554, 632 A.2d 655, 660 (1993). 

       ¶  12.  The crux of defendant's argument is that, instead of
  determining whether defendant was competent at that time to stand trial,
  the court made a prediction that with accommodation he would be competent
  to stand trial.  Defendant claims that this finding of a "predictive"
  competence violates the Dusky standard of "present" competence.  We
  disagree.  As we have recently noted, "[a] competency determination can
  require special help or services to enable the defendant to meet the
  constitutional competency standard."  In re J.M., 172 Vt. 61, 69, 769 A.2d 656, 663 (2001).  In J.M., we held that a developmentally disabled juvenile
  could be found competent if given proper support, including the aid of a
  cognitive facilitator; however, we vacated his guilty plea due to the trial
  court's failure to engage in the required V.R.Cr.P. 11 colloquy, and the
  competency determination based on the inadequacy of the court's findings. 
  Id. at 63, 71, 769 A.2d  at 659, 662-64.  There is nothing to prevent a
  court from qualifying its competency finding and suggesting accommodations
  that will enable the defendant to better capitalize on his capacity to
  understand and participate effectively in the proceedings.  The court is
  simply finding the present ability, with the proper tools, to stand trial.
   
       ¶  13.  We also note that, to some degree, defendant's argument
  misses the mark because the court required that he receive accommodation
  only in the event that his case went to trial.  The court recognized that
  defendant had the capacity to stand trial, but would need accommodation in
  doing so.  For example, the court opined that in order to testify,
  defendant would need questions phrased in a way that he could understand,
  the presence of support people, and frequent breaks.  The court did not
  find that defendant was incompetent to enter a plea, or that he required
  any assistance in order to do so.  Because defendant did not proceed to
  trial, but instead entered a plea, questions regarding the propriety of the
  order requiring assistance in the event of a trial are only indirectly
  related to his guilty plea.

       ¶  14.  The district court found defendant competent to enter a plea,
  as well as competent to stand trial if given assistance.  In making this
  determination, the court took into account defendant's previous experience
  pleading guilty, his knowledge of the legal system, and the expert opinion
  of Dr. Cotton.  In reviewing the trial court's competency determination, we
  will not overturn findings of the trial court if they are supported by
  credible evidence and are not clearly erroneous.  State v. Thompson, 162
  Vt. 532, 535, 650 A.2d 139, 141 (1994).  Defendant twice had been found
  competent and had entered guilty pleas.  The court found that he could
  consult rationally with his attorney, receive advice, and reject it if not
  in his interest, and that he had the ability to decide upon and realize
  long-term goals, such as the establishment of his private residence and his
  logging business.  Notwithstanding Justice Johnson's view to the contrary,
  the court's finding is supported by the record, including the statements of
  mental health supervisors that defendant was able to secure two loans from
  a bank, purchase a camper, and live independently.  Further, the court
  heard the expert opinion of Dr. Cotton stating that defendant could define
  the charges against him, understand the seriousness of those charges,
  describe a possible defense to the charges, define the roles of the defense
  and prosecuting attorneys, and comprehend a plea bargain.  There was
  sufficient evidence in the record to support the trial judge's finding that
  defendant was competent to enter a plea.

                                     II.
   
       ¶  15.  Defendant next challenges the sufficiency of the Rule 11
  proceeding.  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. Yates, 169 Vt. 20, 25, 726 A.2d 483, 486 (1999).  Because a defendant
  waives important constitutional rights when pleading guilty, the court must
  review with the defendant the circumstances surrounding the plea to satisfy
  itself that the plea is voluntarily made with an understanding of its
  consequences.  Boykin, 395 U.S.  at 242; In re Hall, 143 Vt. 590, 594, 469 A.2d 756, 758 (1983).  Rule 11(c) requires the court to address the
  defendant, explaining to him and determining that he understands: the
  nature of the charge to which the plea is offered; the minimum and maximum
  penalty; that he has the right to plead not guilty; and that he is waiving
  his rights against self-incrimination and to a jury trial.  V.R.Cr.P.
  11(c);  Hall, 143 Vt. at 594, 469 A.2d  at 758.  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 or accuracy of the
  plea.  See V.R.Cr.P. 11(d), (f); Yates, 169 Vt. at 25, 726 A.2d  at 487. 
  When Rule 11 violations are alleged, we require only substantial compliance
  with the requirements of the rule.  See State v. Morrissette, 170 Vt. 569,
  571, 743 A.2d 1091, 1092-93 (1999) (mem.) (we require only substantial
  compliance when there is collateral attack on validity of plea based on
  Rule 11 violation); In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113
  (1997) (PCR petitioners cannot prevail by merely claiming technical or
  formal violations of Rule 11).
   
       ¶  16.  At the outset, we reject the State's argument that
  defendant's plea waived his right to a direct appeal challenging the Rule
  11 proceeding.  In support of its claim that defendant must bring his Rule
  11 claims in post-conviction-relief (PCR) proceedings, the State cites
  State v. Thompson,162 Vt. 532, 650 A.2d 139 (1994).  The State's reliance
  on Thompson is misplaced.  In  Thompson, we stated that "an issue under
  Rule 11 . . . alleging violations in taking a plea, absent plain error,
  demands a factual record and opportunity for the trial court to grant
  relief before this Court may properly review it."  Id. at 534, 650 A.2d  at
  140 (emphasis added).  Thus, Thompson stands for the proposition that a
  failure to object to the Rule 11 proceedings at the trial court level will
  result in a plain error standard of review on direct appeal.  While the
  failure to object may result in the factual issues being better developed
  in a post-conviction setting, it does not bar review of the issue on direct
  appeal.  This is consistent with the recent holding of the United States
  Supreme Court that a defendant who fails to object to an error during a
  plea colloquy may obtain reversal only upon a showing of plain error.  See
  United States v. Vonn, 535 U.S. 55, 59 (2002).

       ¶  17.  In his dissent, Justice Dooley suggests that we reject the
  nearly unanimous Vonn decision and abandon the plain-error standard set
  forth in Thompson.  We find nothing in Justice Dooley's arguments that
  convinces us to overrule our recent precedent on this point.  See State v.
  Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1055 (1997) (mem.) ("While not
  slavish adherents to stare decisis, . . . we generally require more than
  mere disagreement to overturn a decision, particularly one of such recent
  vintage.").
   
       ¶  18.  Justice Dooley begins by comparing Thompson to State v. West,
  164 Vt.192, 200-02, 667 A.2d 540, 545-46 (1995), a later case in which we
  reversed a conviction based on the trial court's failure to comply with
  V.R.Cr.P. 23(a) before accepting the defendant's decision to waive his
  right to a jury trial.  Here, Justice Dooley equates Rule 11 with Rule
  23(a) and declares that the West and Thompson holdings are inconsistent. 
  Yet, in West, this Court did not directly address the issue of whether a
  plain-error standard is appropriate in Rule 23(a) cases.  Justice Dooley,
  writing for the Court in West, rejected the State's substantial-compliance
  argument by distinguishing the requirements of Rule 11 and Rule 23(a).  See
  id. at 201-02, 667 A.2d  at 545-46 (although Rule 11 requires district court
  to advise defendants of specific rights and consequences concerning guilty
  pleas, it does not require court to read enumerated rights verbatim). 
  Justice Dooley also noted in West that although a substantial-compliance
  standard for Rule 23(a) had been recognized by other jurisdictions and
  might be appropriate in Vermont, in that particular case there was near
  total noncompliance with the rule.  Id. at 202, 667 A.2d  at 546.  In short,
  West did not consider the question raised here and its holding was not
  inconsistent with Thompson.

       ¶  19.  Justice Dooley also questions the rationality of a standard
  that requires defendants who are presumed to be ignorant of their rights to
  object to the court's failure to adequately advise them of those rights. 
  In response to the obvious counterpoint to this argument, Justice Dooley
  further states that defense counsel cannot be expected to protect his
  client's rights because Rule 11 makes it the duty of the court, not defense
  counsel, who is generally more interested in protecting the plea agreement
  than his client's rights.  We decline to make such assumptions.  As the
  Supreme Court noted in response to a similar argument by the lone dissenter
  in Vonn,

    A defendant's right to counsel on entering a guilty plea is
    expressly recognized in Rule 11(c)(2), and counsel is obliged to
    understand the Rule 11 requirements.  It is fair to burden the
    defendant with his lawyer's obligation to do what is reasonably
    necessary to render the guilty plea effectual and to refrain from
    trifling with the court.  It therefore makes sense to require
    counsel to call a Rule 11 failing to the court's attention.  It is
    perfectly true that an uncounseled defendant may not, in fact,
    know enough to spot a Rule 11 error, but when a defendant chooses
    self-representation after a warning from the court of the perils
    this entails, . . . Rule 11 silence is one of the perils he
    assumes.  Any other approach is at odds with Congress's object in
    adopting Rule 11 . . . to combat defendants' "often frivolous"
    attacks on the validity of their guilty pleas, by aiding the
    district judge in determining whether the defendant's plea was
    knowing and voluntary and creating a record at the time of the
    plea supporting the decision.

  Vonn, 535 U.S.  at 73 n.10.  We agree with this assessment of the situation. 
  Defendants have a right to counsel, and that counsel, in turn, has an
  obligation to protect his client's rights by objecting if the court fails
  to engage the defendant in a colloquy required by rule and aimed at
  assuring that the defendant understand his rights.
   
       ¶  20.  Otherwise, as the Vonn Court points out, there would be an
  incentive for defense counsel to ignore a judge's Rule 11 lapses, thereby
  providing the defendant with a hidden safety valve, or an "insurance
  policy," to relieve the defendant of his otherwise voluntary plea should he
  have a change of heart concerning his plea following sentencing.  See id.
  at 73 (defendant could relax and wait to see if sentence was satisfactory). 
  Of course, even with the plain-error standard, a defendant may argue on
  direct appeal, as here, that the Rule 11 deficiencies resulted in a
  miscarriage of justice or were so glaring and prejudicial as to warrant
  reversal.  See State v. Tahair, 172 Vt. 101, 110, 772 A.2d 1079, 1086
  (2001).  Further, if a defendant has second thoughts about a plea before
  sentencing, he may seek to withdraw his plea under Rule 32(d).  We disagree
  with Justice Dooley's suggestion that the standard of review in such
  circumstances - whether the defendant has provided "objective evidence to
  demonstrate that his subjective misunderstanding was reasonable," State v.
  Fisk, 165 Vt. 260, 263, 682 A.2d 937, 939 (1996) - is equivalent to the
  standard that the defendant would have to satisfy in a
  post-conviction-relief proceeding, which places upon the petitioner the
  additional burden of demonstrating prejudice.  See In re Moulton, 158 Vt.
  580, 584, 613 A.2d 705, 708 (1992) (petitioner must show that he relied
  upon material and prejudicial misunderstanding when entering plea).
   
       ¶  21.  In the end, Justice Dooley states that his "real reason" for
  dissenting is the "overwhelming evidence" that our limitations on review of
  alleged Rule 11 deficiencies have eviscerated Rule 11 compliance by our
  trial courts.  Ante, Dooley, J, dissenting, at   47.  To make this point,
  Justice Dooley notes that plea proceedings occur "thousands and thousands
  of times each year" under a system in which ninety-five percent of
  defendants plead guilty or no contest, and then cites only fourteen cases
  over thirty years to demonstrate that we have allowed virtually every
  possible violation of Rule 11, short of total noncompliance.  Ante, at  
  49.  He also points out three cases in which we have reversed convictions
  based on Rule 11 violations.  Further, according to Justice Dooley, an
  undetermined number of recent DWI enhancement cases heard by three-judge
  panels demonstrate that it is almost always possible for a defendant to
  argue that a predicate DWI conviction should not be used for enhancement
  because of claimed Rule 11 violations.

       ¶  22.  The evidence cited by Justice Dooley does not demonstrate
  rampant noncompliance with Rule 11 by the trial courts.  But even if it
  did, we fail to see how Justice Dooley's proposed rejection of the
  plain-error rule would remedy the situation.  Justice Dooley repeatedly
  states that he does not advocate a standard of review that would result in
  reversals based on "technical" violations.  Indeed, it is unclear what
  standard of review Justice Dooley would adopt, and how it would differ, as
  a practical matter, from the standards previously adopted by this Court in
  direct and collateral appeals concerning alleged Rule 11 violations.  As
  noted above, the Supreme Court has recognized the multitude of frivolous
  appeals challenging prior pleas based on alleged Rule 11 violations. 
  Justice Dooley's proposal that we abandon the plain-error standard in such
  cases will only ensure that we will get many more of those appeals, with no
  better idea of what standard to employ in resolving them.

       ¶  23.  Without question, Justice Dooley makes some valid points in
  his dissent.  But however well reasoned, his opinion is no more than an
  arguable alternative to the approach taken by this Court in a relatively
  recent, unanimous decision - an approach given near unanimous approval only
  months ago by the United States Supreme Court.  In short, there is no
  legitimate basis at this time in this case for overruling State v.
  Thompson, 162 Vt. 532, 650 A.2d 139 (1994).
   
       ¶  24.  We now return to defendant's arguments regarding the Rule 11
  colloquy in this case.  Defendant cites a myriad of reasons why the
  proceeding violated Rule 11 and failed to establish the knowing and
  intelligent waiver of his rights.  He cites the absence of professional
  support required by the district court for him to be found competent to
  enter a plea, his lack of knowledge regarding the nature of a jury trial,
  and his rote "yes/no" answers during the proceeding.  He further contends
  that the court failed to establish a sufficient factual basis for his plea
  and failed to personally address him as required by the rule.

       ¶  25.  Defendant's first contention is that the court erred in
  accepting his plea without providing him with a cognitive facilitator or
  other professional support.  He argues that without such support he was not
  competent and could not knowingly and voluntarily enter a plea.  This
  argument is without merit.  As noted above, the trial court found defendant
  competent to enter a plea upon credible evidence in the record, and did not
  condition its finding on the presence of any required support persons to
  assist him.  

       ¶  26.  Defendant next argues that the record did not indicate that he
  understood the nature and function of a jury, and thus could not knowingly
  waive his right to a jury trial.  Rule 11(c) requires the court to explain
  and determine that the defendant understands that by pleading guilty he is
  waiving his right to a jury trial.  Defendant was told that he had the
  right to a trial, to testify, to have his attorney question witnesses, and
  that he was waiving these rights by entering a plea.  He acknowledged that
  he understood these rights and that he was waiving them.  He further stated
  that, from what his attorney had told him, he understood the terms of the
  plea agreement.  Having found defendant competent to enter a plea, the
  court then followed, and substantially complied with, the Rule 11(c)
  requirements.  The court made the determination that defendant understood
  he was waiving his right to a jury trial, and it was satisfied that such
  waiver was made knowingly.  The court's determination is supported by the
  record.  As noted, the trial court's findings regarding accommodations for
  defendant were made with regard to defendant's capacity to participate in a
  jury trial, not with respect to his capacity to waive his right to a jury
  trial.
   
       ¶  27.  Defendant further argues that his rote answers of "yes" in
  response to questioning did not indicate that his plea constituted the
  knowing and voluntary waiver of his rights.  He contends that many
  developmentally disabled people tend to answer "yes" to a "yes/no" question
  because they believe that that answer is expected or would meet with
  approval.  Because of this possibility, he argues that his answers gave no
  assurance that his plea constituted a knowing waiver of his rights.  In
  satisfying itself that defendant understood the consequences of his plea,
  the trial court did not rely solely on his "yes" responses.  It also
  considered his demeanor, manner, and the periodic conferences he had with
  his attorney.  During the proceeding, defendant asked questions, explained
  to the court what constituted the maximum and minimum penalties possible
  under his plea, and stated that he understood that his lawyer could argue
  for a lesser sentence.  This suggests that he was not merely parroting
  answers, but understood his rights and the consequences of his plea.  The
  record reflects that defendant understood the nature of his plea, and
  answered the questions meaningfully.

       ¶  28.  Defendant next argues that there was an insufficient factual
  basis to support his plea.  Rule 11(f) requires that before accepting a
  plea of guilty, "the court should not enter judgment upon such a plea
  without making such inquiry as shall satisfy it that there is a factual
  basis for the plea." V.R.Cr.P. 11(f).  Defendant contends that the factual
  basis for the charge came entirely from the record and the court's
  discussion with the lawyers.  He claims that this failed to establish a
  sufficient factual basis and violated Rule 11(f). 
   
       ¶  29.  We have held that the plea proceeding of a defendant who
  stipulated to the factual basis for the charge substantially complies with
  Rule 11.  State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1092-93
  (1999) (mem.).  Here, as in Morrissette, defendant stipulated to the facts. 
  At the plea hearing, defendant indicated that he understood the charges
  after the court read the informations to him.  He also acknowledged that
  the affidavit of the investigating officer had been read to him recently,
  and that he understood it.  Later in the plea proceeding, when the court
  asked defendant whether he agreed that the affidavit accurately stated what
  happened, defendant's attorney explained that defendant would agree only
  that there was an attempted sexual assault, not a completed one as
  suggested in the affidavit.

       ¶  30.  Given these facts, defendant's reliance on State v. Yates, 169
  Vt. 20, 728 A.2d 483 (1999) is misplaced, as is Justice Dooley's suggestion
  that Morrissette effectively overruled Yates.  The defendant in Yates was
  charged with aggravated domestic assault against his wife and simple
  assault against his wife's friend, both charges stemming from a single
  incident.  In reversing the trial court's refusal to grant the defendant's
  motion to withdraw his guilty plea, we noted that the trial court made no
  mention of the aggravated domestic assault charge during the Rule 11
  colloquy and, hence, held that there was a "total" failure on the part of
  the trial court to conduct a confirming colloquy in which the defendant
  admitted to the facts underlying the charge.  Id. at 24, 726 A.2d  at 486.  
  Here, in contrast, the factual basis effectively stipulated to and admitted
  by defendant.  Thus, there was substantial compliance with Rule 11.

       ¶  31.  Defendant's final argument is that Rule 11 was violated
  because the required colloquy was conducted in large part by his attorney,
  instead of the judge.  Rule 11 requires the court to advise the defendant
  and determine that his plea is made knowingly and intelligently by
  "addressing the defendant personally."  V.R.Cr.P. 11(c), (d).  Defendant's
  attorney conducted the bulk of the colloquy at the request of the trial
  court.  The court noted that defendant had limitations and tried to
  accommodate them by allowing his attorney to conduct most of the colloquy. 
  The attorney stated that this was a good idea and noted that he had
  recently spent two hours with defendant, indicating an ability to
  communicate effectively.
   
       ¶  32.    "[W]e have always required 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." 
  State v. Ploof, 162 Vt. 560, 563, 649 A.2d 774, 776-77 (1994).  The exact
  form of the Rule 11 colloquy may vary from case to case, depending on
  matters such as the competence of the defendant and the complexity of the
  legal issues.  In re Hall, 143 Vt. 590, 595, 469 A.2d 756, 758 (1983). 
  Here, the trial court thought that the best way to ensure that defendant
  understood the consequences of his plea was by allowing his attorney to
  conduct the colloquy.  In such inquiries, "matters of reality, and not mere
  ritual, should be controlling."  United States v. Maher, 108 F.3d 1513,
  1520 (2d Cir. 1997) (quoting McCarthy v. United States, 394 U.S. 459, 467
  n. 20 (1969)).  Rule 11 was not intended to straight-jacket judges so as to
  prevent them from taking into account defendants' individual circumstances
  and limitations when trying to assure that their constitutional rights are
  protected.  If it reaches the point where it does so, it will be at
  cross-purposes with its original intent and will have outlived its
  usefulness.  We discern no plain error.

       ¶  33.  Nor do we think a remand is necessary, as defendant suggests
  in a letter citing Vonn, to give defendant an opportunity to argue before
  the district court that the entire record demonstrates that his plea in
  this case was not knowing and intelligent.  In denying defendant's motion
  to withdraw his plea, the trial court was well aware of the record in this
  case and, specifically, defendant's mental limitations.  We see no purpose
  in remanding this matter for further proceedings.

       Affirmed.


                                       FOR THE COURT:



                                       ___________________________________
                                       Associate Justice
   

------------------------------------------------------------------------------
                                 Dissenting


       ¶  34.  DOOLEY, J., concurring and dissenting.  I acknowledge that
  the majority's decision to require plain error to correct Rule 11
  deficiencies in direct appeals follows State v. Thompson, 162 Vt. 532, 650 A.2d 139 (1994), a decision I joined.  I conclude, however, that the plain
  error holding in Thompson is wrong and should be overruled, particularly in
  light of overwhelming evidence that our decisions have led to regular
  non-compliance with Rule 11.  I, therefore, dissent on this point.

       ¶  35.  Our law normally requires a contemporaneous objection to court
  rulings later claimed to constitute such error as to require the reversal
  of the judgment so that the trial court has the opportunity to correct the
  error.  See State v. Griffin, 152 Vt. 41, 45, 563 A.2d 642, 645 (1989);
  State v. Curtis, 145 Vt. 552, 553, 494 A.2d 143, 144 (1985); In re Mecier,
  143 Vt. 23, 28-29, 460 A.2d 472, 475-76 (1983).  In the absence of a
  contemporaneous objection, we will take action only if an error is "plain:"
  that is, it will result in a miscarriage of justice or is so glaring, grave
  and serious that it "strikes at the very heart of the defendant's
  constitutional rights."  State v. Tahair, 172 Vt. 101, 110, 772 A.2d 1079,
  1086 (2001).  Our decision in Thompson simply applied our preexisting
  preservation requirement to Rule 11 errors.
   
       ¶  36.  There was no examination in Thompson of whether it made any
  sense to require preservation of a Rule 11 error.  Although in a slightly
  different context, we did address these questions, in part, in State v.
  West, 164 Vt. 192, 200-01, 667 A.2d 540, 545-46 (1995), where we found that
  the trial court failed to comply with V.R.Cr.P. 23(a) in accepting a waiver
  of the right to trial by jury.  As in this case, there was no preservation
  in the trial court.  See State v. Loveland, 165 Vt. 418, 420, 684 A.2d 272,
  274 (1996) (under West, no preservation required to raise violations of
  V.R.Cr.P. 23(a) on appeal).  We noted that the rule contemplates "that only
  a personal colloquy will enable the court to ensure that defendant
  understands the critical information on which the waiver must be based." 
  West, 164 Vt. at 200, 667 A.2d  at 545.  We also noted that "[w]e rejected
  the use of preprinted information on a preprinted form because of the great
  risk such information would neither be read nor absorbed."  Id.  We
  examined whether we should require the kind of presence of prejudice
  standard that would result from limited plain-error review.  We held that a
  showing of prejudice was unnecessary because of the nature of the right
  involved and because a prejudice requirement "would be wholly inconsistent
  with a prophylactic rule created to ensure that a waiver is informed,
  voluntary and intelligent."  Id. at 201, 667 A.2d  at 546.  We added that
  the "point of [Rule 23(a)], . . . and other such advice or colloquy
  requirements, is to create specific requirements to avoid a case-by-case
  inquiry of the state of mind of the defendant."  Id. 

       ¶  37.  I think it was obvious that the holdings of West and Thompson
  were inconsistent.  Certainly, if preservation is not required to raise
  defects in the advice given before waiving a jury trial and going to trial
  before a judge, preservation should not be required to raise defects in the
  advice given before waiver of any trial in favor of a plea of guilty. 
  Indeed, Justice Morse, the author of the majority opinion here, made the
  point in his dissent in West, 164 Vt. at 203 n.*, 667 A.2d  at 547 that Rule
  11 and Rule 23(a) should be treated in a consistent manner. 
   
       ¶  38.  The majority's attempt to distinguish them is both wrong and
  a misdirection.  It is a misdirection because the issue before us is
  whether preservation is required for direct review, and on this point, the
  decisions are directly contrary, see Loveland, 165 Vt. at 420, 684 A.2d  at
  274 (West "allowed defendants to attack the validity of jury trial waivers
  in this Court without any preservation below"), and none of the
  distinctions the majority raises are relevant to the standard of review
  question.  Further, the majority is wrong in concluding that West and the
  Rule 11 decisions cited in it reached different conclusions when
  substantial compliance was shown; in fact, this Court intentionally didn't
  reach the substantial compliance question because the jury trial waiver
  failed even under any application of substantial compliance.  West, 164 Vt.
  at 202, 667 A.2d  at 546.

       ¶  39.  Because of the conflict between West and Thompson, in the few
  cases in which Rule 11 violations have been raised on direct appeal
  following West, the defendants, usually represented by the defender
  general's office, have asked us to overrule Thompson.  In the seven
  intervening years, we have never relied upon Thompson to reach our
  decision, usually noting the request to overrule it and finding it
  unnecessary to reach the question.  See State v. Blish, 172 Vt. 265, 268,
  776 A.2d 380, 383 (2001); State v. Thompson, 167 Vt. 383, 387, 708 A.2d 192, 194 (1998). 

       ¶  40.  Under Thompson, the majority would require defendant to object
  to the absence of Rule 11 disclosures when they are not made.  The required
  objection would presumably go something like this: "Your honor, I object to
  your failure to inform me that the maximum sentence for this offense is X
  years as required by Rule 11(c)(2)."  Of course, the only person who can
  make such an objection is one who knows the information to be provided,
  thereby showing that the requirements of the rule are wholly unnecessary
  with respect to the person stating the objection.  Put another way, the
  only person who cannot make this objection is a defendant who is ignorant
  of the Rule 11 information, exactly the person for whom the rule was
  created to protect.  Not surprisingly, I can find no instance that any
  defendant has ever preserved a Rule 11 error, in this state or in any other
  jurisdiction. 
   
       ¶  41.  I recognize that objections are generally preserved by
  lawyers, not clients, and lawyers theoretically could raise a Rule 11
  challenge.  We are dealing, however, with a rule that is intended to convey
  critical information to the client, not the lawyer.  It is just as wrong if
  the client is deprived of the necessary information as a result of the
  action or inaction of the lawyer rather than the inaction or action of the
  court.  Indeed, if it were deemed sufficient that lawyers would fully
  protect all the rights and interests of a client, we would have no Rule 11,
  relying instead on the lawyer to convey all the needed information.  The
  United States Supreme Court essentially rejected that choice in McCarthy v.
  United States, 394 U.S. 459 (1969), and we rejected it by requiring the
  judge, not the defense lawyer, to provide the essential information and
  determine that defendant understands that information.  See V.R.Cr.P.
  11(c).

       ¶  42.  We also have to understand that the vast majority of guilty
  pleas result from plea negotiations, and the defense lawyer necessarily
  becomes the advocate for the negotiated settlement.  As the recent case of
  In re Quinn, 13 Vt. L.W. 309, 310 (mem.) (2002) demonstrates, the lawyer's
  actions may be more geared to ensuring the plea agreement is consummated
  than to protecting the rights of the client.  I find it unlikely that a
  defense lawyer would be seeking fuller and more detailed Rule 11
  disclosures; again, I can find no record that lawyer preservation of an
  objection to a Rule 11 error has ever occurred.  Put another way, I know of
  no case in which the lawyer made the comparable objection to that described
  above: "Your honor, I object to your failure to inform my client that the
  maximum sentence for this offense is X years as required by Rule 11(c)(2)." 
  If the lawyer wanted the client to know this information, the lawyer would
  tell the client directly.

       ¶  43.  The majority essentially sticks its head in the sand on this
  point.  It says that the lawyer has an obligation to protect the rights of
  the client, as if saying so will make it happen.  Yet, it knows that in
  case after case that has come to this Court, the lawyer has never made the
  objection that it says it is the "obligation" of the lawyer to make, and
  that the only consequence of the failure to make that objection is that the
  client will lose rights.  Given the very few instances in which Rule 11
  questions have come here on direct appeal, and the minuscule chance of
  success for Rule 11 appeals as discussed below, I find incredible the
  majority's charge that defense lawyers are failing to make the objection to
  provide a "hidden safety valve" to the client.
   
       ¶  44.  I also recognize that under V.R.Cr.P. 32(d) a defendant might
  attempt to withdraw a plea of guilty before sentencing because of a
  violation of Rule 11.  In the past, we required the discretion provided by
  Rule 32(d) to be exercised liberally in favor of allowing a plea withdrawal
  if the motion was made before sentencing.  See Reporter's Notes, V.R.Cr.P.
  32(d).  Despite the opportunity under Rule 32(d), I doubt many defendants
  who are unaware of the information the court is supposed to provide under
  Rule 11 learn of it between plea and sentencing in order to make such a
  motion.  I find no reported decision from this Court using the rule in this
  way.  In any event, the traditional liberality was largely eliminated in
  State v. Fisk, 165 Vt. 260, 263, 682 A.2d 937, 939 (1996).  See id. at 266,
  682 A.2d  at 940 (Dooley, J., dissenting).  Under Fisk, defendant would have
  to show he had a subjective misunderstanding with respect to the Rule 11
  information and present evidence to demonstrate that subjective
  misunderstanding was reasonable under the circumstances.  Id. at 263, 682 A.2d  at 939.  I find defendant's burden under Fisk indistinguishable from
  that in a post conviction relief proceeding.  See id. at 266, 682 A.2d  at
  940 (import of decision is that there "is a strong presumption against
  allowing withdrawal" of a plea).  I don't agree with the majority's
  response that the standards are different because in a PCR proceeding
  defendant would have to show prejudice.  More important to this case, and
  as discussed below, the majority's comparison in a Rule 11(f) case is
  clearly erroneous because we specifically held in In re Dunham, 144 Vt.
  444, 451, 479 A.2d 144, 148 (1984) that,  "[u]nlike collateral review of
  alleged defects under V.R.Cr.P. 11(c), which places a burden of proving
  prejudice upon the defendant, collateral attacks for defects under Rule
  11(f) require no showing of prejudice."  In short, there is no prejudice
  requirement for PCR review in this case.
   
       ¶  45.  It is the sentencing that is likely to bring out any
  misunderstanding of the consequences of the plea of guilty.  Yet, if the
  sentence involves incarceration, defendant no longer has any ability to
  correct a Rule 11 error in the district court once the sentence is imposed. 
  See V.R.Cr.P. 32(d).  Even where the district court retains jurisdiction
  because defendant is not in custody under sentence, the burden that must be
  overcome is no easier than that necessary to successfully obtain
  plain-error review.  See id. (plea may be withdrawn after sentence "only to
  correct manifest injustice"); State v. Yates, 169 Vt. 20, 27-28, 726 A.2d 483, 488 (1999).  Thus, as explained by the majority in this case, the real
  remaining remedy is a post-conviction-relief proceeding in superior court.

       ¶  46.  My point is that whatever the theoretical possibilities, there
  is actually no such thing as direct review of a Rule 11 error under the
  majority's holding.  There can only be plain error review or a collateral
  attack in a post-conviction-relief proceeding.  Although on the surface
  Thompson simply treated Rule 11 errors the same as all other errors in
  requiring preservation for review, in reality it carved out a special and
  unique class of errors - that is, failures to comply with Rule 11 - that
  are virtually unreviewable.  It would help this debate if the majority
  would acknowledge that it is not about preservation, but is really about
  the standard of review for Rule 11 errors.  The suggestion that defendant
  is somehow to blame for failure to object to the Rule 11 error only makes
  the majority's policy much harder to swallow.

       ¶  47.  Is there some reason to make Rule 11 errors virtually
  unreviewable?  To the extent this Court has articulated a rationale in the
  past, I suppose it is that the trial judge should always have the
  opportunity to correct errors and we do not want to reverse convictions
  solely for technical errors.  I think the latter concern can be addressed
  by a common sense application of the rule, and the former argument is
  inadequate where, as here, preservation will never occur.  
   
       ¶  48.  The majority has stated part of the rationale for the United
  States Supreme Court decision  in United States v. Vonn, 535 U.S. 55, 72
  (2002), and I have responded to that rationale above.  The Court went
  further:

    But the incentive to think and act early when Rule 11 is at stake
    would prove less substantial if Vonn's position were law; a
    defendant could choose to say nothing about a judge's plain lapse
    under Rule 11 until the moment of taking a direct appeal, at which
    time the burden would always fall on the Government to prove
    harmlessness. A defendant could simply relax and wait to see if
    the sentence later struck him as satisfactory; if not, his Rule 11
    silence would have left him with clear but uncorrected Rule 11
    error to place on the Government's shoulders. This result might,
    perhaps, be sufferable if there were merit in Vonn's objection
    that applying the plain?error standard to a defendant who stays
    mum on Rule 11 error invites the judge to relax. The plain?error
    rule, he says, would discount the judge's duty to advise the
    defendant by obliging the defendant to advise the judge. But,
    rhetoric aside, that is always the point of the plain?error rule:
    the value of finality requires defense counsel to be on his toes,
    not just the judge, and the defendant who just sits there when a
    mistake can be fixed cannot just sit there when he speaks up later
    on.

  Id. at 73.  I find this rationale unpersuasive.  It presupposes a defendant
  with a preexisting knowledge of the details of Rule 11 and counsel who will
  obtain exacting compliance with Rule 11 even if it undermines a negotiated
  plea.  It fails to recognize that a sentence after an appeal is unlikely to
  be more favorable to a defendant.  It also fails to recognize that it is
  the sentence that shows the consequences of the plea that the Rule 11
  colloquy may have omitted.  The plain-error standard does, indeed,
  "discount the judge's duty to advise the defendant by obliging the
  defendant to advise the judge."  Id.  It may in theory require "defense
  counsel to be on his toes," but in practice offers no incentive to defense
  counsel to do so and simply curtails direct review in all cases.  Finally,
  the balancing of protection of the defendant's rights against judgment
  finality may require very limited review in case of collateral attack; it
  should not reach the same conclusion on direct review.
           
       ¶  49.  Although I am struck by the weakness of the rationales for
  curtailing Rule 11 direct review, the real reason for my disagreement is
  the overwhelming evidence that limitations on review have eviscerated Rule
  11 compliance.  Virtually all of our Rule 11 decisions involve one form or
  another of collateral attack.  Most of these decisions involve the colloquy
  requirement of Rule 11(c), the requirement that the court address the
  defendant "personally in open court" and inform the defendant and determine
  that the defendant understands the nature of the charge, the maximum and
  minimum penalty, the right to plead not guilty, the consequences of the
  guilty plea, the consequences of the court's refusal to accept a plea
  agreement, and the consequences if the court questions the defendant under
  oath.  V.R.Cr.P. 11(c)(1) - (6).  In the course of those decisions, we have
  allowed virtually every possible violation of Rule 11(c), short of total
  noncompliance.  See State v. Riefenstahl, 172 Vt. 597, 599, 779 A.2d 675,
  678 (2001) (mem.); State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1093 (1999) (mem.); In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113
  (1997); State v. Pilette, 160 Vt. 509, 511-12, 630 A.2d 1296, 1297-98
  (1993); In re Moulton, 158 Vt. 580, 583-84, 613 A.2d 705, 707-08 (1992);
  State v. Whitney, 156 Vt. 301, 302-03, 591 A.2d 388, 389-90 (1991); In re
  Fadden, 148 Vt. 116, 121-22, 530 A.2d 560, 563-64 (1987); In re Kivela, 145
  Vt. 454, 457-58, 494 A.2d 126, 128-29 (1985); In re Bentley, 144 Vt. 404,
  409-11, 477 A.2d 980, 982-83 (1984); In re Hall, 143 Vt. 590, 594-96, 469 A.2d 756, 758-59 (1983); In re Lovejoy, 131 Vt. 525, 527-28, 309 A.2d 926,
  927 (1973); see also State v. Ploof, 162 Vt. 560, 562-63, 649 A.2d 774,
  776-77 (1994) (direct appeal, plain error required); State v. Thompson, 162
  Vt. at 533-34, 650 A.2d  at 141 (direct appeal, plain error required); 
  State v. Gabert, 152 Vt. 83, 88-89, 564 A.2d 1356, 1359-60 (1989) (direct
  appeal).  The only decision of this Court reversing a criminal conviction
  for failure to comply with Rule 11(c) noted that the defendant had serious
  mental limitations and the colloquy "hardly touched on the requirements of
  Rule 11(c)."  State v. Thompson, 167 Vt. 383, 387, 708 A.2d 192, 194 (1998)
  (direct appeal; plain error found).  We also reversed a delinquency
  adjudication in In re J.M., 172 Vt. 61, 63, 769 A.2d 656, 658 (2001), but
  only on a finding that the court "failed to conduct any V.R.Cr.P. 11
  colloquy whatsoever."

       ¶  50.  We have had a particularly large number of Rule 11 appeals in
  recent months in cases where predicate DUI convictions based on guilty
  pleas are being used to enhance the DUI charge in the case before us,
  usually into felony status.  Prior to our holding in State v. Boskind, ___
  Vt. ___, ___, 807 A.2d 358, 366 (2002) that a repeat-offense DUI defendant
  cannot challenge predicate convictions that lead to an enhanced penalty
  because of non-compliance with Rule 11 requirements, many district courts
  were allowing such challenges.  We have had such a glut of these cases that
  most are being resolved on the express track without a published opinion. 
  These records demonstrate that it is almost always possible for a defendant
  to argue that a predicate conviction should not be used to enhance because
  of a substantial noncompliance with Rule 11(c).  These records strongly
  suggest that the requirements of Rule 11(c) are too often honored in the
  breach.

       ¶  51.  Over 95% of our criminal cases are resolved on pleas of guilty
  or nolo contendere.  This means that in busy trial courts guilty plea
  proceedings occur thousands and thousands of times each year.  The quality
  of our criminal justice is actually determined by how we conduct those plea
  proceedings and not by how we conduct the relatively few criminal trials. 
  At least as judged by the ideal created by Rule 11, we often do not measure
  up.
   
       ¶  52.  I recognize that the problem may be that the requirements of
  Rule 11 may be too rigid, causing an unnecessary time consumption
  incompatible with the mass processing of the volumes of cases in our
  courts.  We should face up to that reality by examining the rule critically
  and making the needed adjustments to adapt it to current realities without
  sacrificing the essential protections against unconstitutional convictions. 
  We now have the worst of the available options - legal requirements that
  are ignored by the same institutions that created them, demonstrating
  official disrespect for the law.  As long as we have it in our power to
  reshape Rule 11 if it is incompatible with its function and fail to do so,
  we should enforce it.

       ¶  53.  I am not arguing that we should change the standards of review
  on collateral attack of a conviction based on a guilty or nolo plea, and,
  therefore, my position would not affect the outcome in the vast majority of
  Rule 11 cases we have decided.  Indeed, our collateral attack decisions
  frequently note that the standard to obtain relief is higher in the case of
  collateral attack.  See In re Thompson, 166 Vt. at 475, 697 A.2d  at 1113. 
  I believe, however, that the current deficiency in Rule 11 compliance
  exists because there is no way to get review, even directly, to avoid the
  very limited standard of review that affirms the conviction despite
  virtually any Rule 11 error.  Deviations from Rule 11 requirements for
  which there never can be conviction reversals simply let the deviations
  become the normal level of compliance.

       ¶  54.  Nor am I arguing that all violations of Rule 11, however
  technical, should cause reversals of criminal proceedings.  Under V.R. Cr.
  P. 52(a), an error that "does not affect substantial rights shall be
  disregarded."  We have used this standard on countless occasions to
  separate errors that matter from those that do not.  The wording is based
  on the federal rule, and has been used many times by the federal courts. 
  See 3A C. Wright, Federal Practice and Procedure §§ 852-54 (1982). 
  Although I recognize that I would not adopt the standard of review the
  majority favors, I cannot agree that it is unclear what standard I favor
  for direct review of a Rule 11 violation.
   
       ¶  55.  Again, I find the majority's approach is to ignore the
  problem.  I am not purporting to base my conclusions about Rule 11
  compliance on a scientific study.  Nor is it surprising that the numbers of
  appeals from guilty plea convictions are low because in most cases,
  irrespective of Rule 11 compliance, the result is fair and defendant is
  unlikely to improve upon it with resentencing.  I am, however, seeing the
  same records on appeal as the rest of the Justices and those records show
  that we have a substantial noncompliance problem.  If we do not require or
  expect compliance with Rule 11, why is it surprising that compliance does
  not occur?

       ¶  56.  While I believe it inappropriate to require a finding of plain
  error to respond to a Rule 11 error on direct appeal in any case, there is
  a special reason why it is inappropriate in this case.  Defendant alleges a
  violation of Rule 11(f), not Rule 11(c), because the court failed to make a
  sufficient inquiry to determine that there was a factual basis for
  defendant's plea.  In In re Dunham, 144 Vt. at 451, 479 A.2d  at 148, a
  post-conviction-relief proceeding in which petitioner attacked a guilty
  plea because of non-compliance with Rule 11(f), this Court held: "Unlike
  collateral review of alleged defects under V.R.Cr.P. 11(c), which places a
  burden of proving prejudice upon the defendant, collateral attacks for
  defects under Rule 11(f) require no showing of prejudice."  By this
  decision, the majority has made defendant's burden on direct appeal more
  onerous than that applicable to a collateral attack, exactly the opposite
  of how review should be structured.  Moreover, we justified our decision in
  Thompson on the need for "a factual record" that could be obtained in a
  post-conviction-relief proceeding, 162 Vt. at 534, 650 A.2d  at 140, but
  under Dunham no factual record is necessary to evaluate a Rule 11(f) error
  in such a proceeding.

       ¶  57.  Although my primary dissent is to the limited standard of
  review in the majority's holding, I also believe that it's conclusion, even
  under its limited standard of review, is wrong.  There was no compliance
  with Rule 11(f) in this case.  Indeed, the majority's rationale for finding
  no error is a vivid demonstration why our law in this area is in need of
  modification.  
   
       ¶  58.  After a colloquy directed at whether defendant understood the
  information set out in Rule 11(c), the prosecution requested that the court
  determine the factual basis for the plea.  The court first asked defense
  counsel whether defendant conceded that there was a factual basis for the
  plea and defense counsel answered "yes."  The court then addressed
  defendant and asked whether the affidavit had been read to him and
  defendant answered "yes."  The court then asked whether defendant agreed
  that the facts in the affidavit were "what happened."  Before defendant
  could answer, the prosecutor intervened to explain an error in the
  affidavit and explained that defendant might not agree with the affidavit
  because of the error.  The court then said "Is there any dispute about
  that?" and defense counsel answered "no."  Defendant never spoke again and
  never answered the question whether he agreed with the affidavit and was
  never asked whether he agreed with the prosecutor's version of the facts. 
  Even defense counsel's statement is open to multiple interpretations;
  specifically, he agreed only that the affidavit was in error.  The court
  found that defendant "knows what he is doing, that he is well advised, and
  he understands the consequences of his plea and the terms of his plea
  agreement," but never found a factual basis for the plea.

       ¶  59.  We explored in detail the requirements of Rule 11(f) in State
  v. Yates, 169 Vt. 20,  24-25, 726 A.2d 483, 486 (1999), a direct appeal
  case.  We reasoned:

    While the court may obtain facts from other sources, including the
    prosecutor and the presentence report, . . . ., 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.

  Id. at 24, 726 A.2d  at 486.  We held in terms directly applicable to this
  case:

    We therefore [hold] . . . 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.

  Id. at 27, 726 A.2d  at 488.
   
       ¶  60.  Here the court failed to obtain an admission of facts from
  defendant showing that each element of the offense was met.  The court
  obtained a conclusory statement from defense counsel and an explanation
  from the prosecutor, but never obtained any admission from defendant.  The
  majority's attempt to slide over the error with its statement that "the
  factual basis was in effect stipulated to and admitted by defendant" is
  clearly inconsistent with the record.

       ¶  61.  The majority grounds its decision on State v. Morrissette, 170
  Vt. 569, 571,  743 A.2d 1091, 1092-93 (1999) (mem.), a memorandum decision
  involving a collateral attack.  Essentially, the majority holds that
  irrespective of the reasoning of Yates, it is sufficient if defendant's
  lawyer, not defendant, agrees that there is a factual basis for the plea. 
  If Morrissette held as the majority credits it, this memorandum decision
  sub silentio overruled the one-year-old decision in Yates, 169 Vt. at 24,
  726 A.2d  at 486 that only a personal colloquy with defendant to establish
  the factual basis complies with Rule 11(f).  We should be very cautious in
  giving this kind of effect to a memorandum decision, particularly where the
  decision claims it is consistent with Yates.

       ¶  62.  A fair reading of Morrissette must distinguish it rather than
  putting it in conflict with its most recent precedent.  Morrissette was a
  collateral attack, not a direct appeal, and there is no indication in the
  decision that defendant claimed a violation of Rule 11(f), as opposed to
  Rule 11(c) and (d).  Indeed, it is not clear that this Court believed in
  Morrissette that the facts are similar to those here since it states in
  that decision that defendant made a "stipulation to the factual basis for
  the charge."  Id. at 570, 743 A.2d  at 1092.
   
       ¶  63.  The majority response is to restate the holding of Yates and
  ignore its rationale.  Yates specifically requires that compliance with
  Rule 11(f) come from "personal address of the defendant," 169 Vt. at 25,
  726 A.2d  at 487, and added that "[t]his necessarily requires a conversation
  with defendant regarding whether or not the defendant admits to the alleged
  conduct."  Id. at 26, 726 A.2d  at 487.  It went on to say that defendant's
  understanding "cannot be probed except through personal interrogation." 
  Id. at 27, 726 A.2d  at 487.  Despite this language, the majority now holds
  that where there is a colloquy with defendant's lawyer and the lawyer
  states that there is a factual basis for the plea, "defendant stipulated to
  the facts."

       ¶  64.  There are two ways to read the majority's rationale in this
  case, either of which is inconsistent with Yates.  The first is that the
  lawyer is the agent of the client for purpose of the Rule 11(f) colloquy,
  and the court may conduct it solely with the lawyer.  This reading is
  plainly inconsistent with the requirement of personal address or
  interrogation in Yates.  

       ¶  65.  The second is that the client who hears the colloquy between
  the judge and the lawyer is presumed to have endorsed it.  For this theory
  to be correct, however, the content of the colloquy must comply with Rule
  11(f).  Here, the lawyer stipulated that there was a factual basis for the
  plea, a statement of pure legal jargon that does not convey to defendant
  what facts the lawyer has stipulated to.  Stipulation to a legal
  conclusion, and not to facts, does not comply with Yates.  See id. at  26,
  726 A.2d  at 487. 

       ¶  66.  I return to my point that the majority's rationale itself
  demonstrates the deficiency in our approach.  We have over many decisions
  allowed such violations of Rule 11 that the few decisions that insist on
  Rule 11 compliance appear almost to be random, unpredictable acts.  Our
  approach to Rule 11 requires rethinking, not the invention of more ways to
  excuse noncompliance.

       ¶  67.  In describing the effect of the 1983 addition to F.R.Cr.P. 11
  of section (h), explicitly applying harmless error standards to Rule 11
  violations, Professor Charles Alan Wright in his leading treatise opines
  that the addition did not turn "Rule 11 into a paper tiger."  1A C. Wright,
  Federal Practice and Procedure § 178, at 312 (1999).  I wish I could say
  the same about the effect of our decisions, including this one, on Rule 11
  in Vermont.  If we are willing to enforce Rule 11 only as a paper tiger, it
  is preferable for our jurisprudence to repeal the rule. 
   
       ¶  68.  I would hold that the standard of review for a direct appeal
  of a Rule 11 violation is governed by State v. West and explicitly overrule
  the prior holding to the contrary in State v. Thompson.  Thus, I would hold
  that defendant need not show plain error here and that he showed error such
  that the criminal conviction must be reversed.  Moreover, even if defendant
  is required to show plain error, he did so under the standards of State v.
  Yates.  Accordingly, I dissent from the majority's decision to affirm
  defendant's conviction.



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                 Dissenting


       ¶  69.  JOHNSON, J., dissenting.   Nine years ago, in another appeal
  before this Court, I stated my belief that the same mentally retarded
  defendant was incompetent to waive his constitutional rights.  See State v.
  Cleary, 161 Vt. 404, 414-15, 641 A.2d 102, 109 (1994) (Johnson, J.,
  dissenting).  For reasons similar to those stated in my earlier opinion, I
  do not believe that defendant was competent to waive his rights and plead
  guilty to the charged offenses in this case.  Nothing in the record
  suggests otherwise.  Indeed, the competency court's own findings indicate
  that defendant still suffers from the same life-long mental deficiencies as
  in the past.  But, even assuming that the court was correct in determining
  that defendant was marginally competent to enter a guilty plea, the
  colloquy at the plea hearing was woefully inadequate for the trial court to
  assure itself that defendant had entered a knowing and intelligent guilty
  plea.  Accordingly, I respectfully dissent.
   
       ¶  70.  Defendant is a mentally retarded man with an IQ (intelligence
  quotient) of sixty-five, placing him in the bottom two percent of the
  population.  Although his functional abilities have improved in some areas,
  his mental deficiencies have remained constant over the years.  According
  to the experts, his mental capacity is approximately that of a
  ten-year-old, and he has the emotional level of even a younger child.  His
  greatest deficiencies are in language and abstract thinking.  Like many
  persons with mental retardation, defendant has the tendency to mask his
  handicap by indicating that he understands more than he actually does and
  by telling others, particularly authority figures, what he believes they
  want to hear.  See State v. Lockwood, 160 Vt. 547, 569, 632 A.2d 665, 668
  (1993) (Johnson, J., dissenting) (to overcome their limited communication
  skills, mentally retarded persons may answer "yes" when they think
  questioner is looking for "yes").  In finding defendant to be marginally
  competent in this case, Judge Davenport acknowledged that defendant is
  significantly impaired in language-based areas of understanding, that his
  greatest deficiencies are in abstract thinking, that he had no
  understanding of how a jury trial functioned, and that although the experts
  were divided on whether defendant was incompetent, they agreed that the
  competency question was a "close call."

       ¶  71.  It is generally recognized that at least a basic level of
  abstract thinking is necessary to knowingly and intelligently enter a
  guilty plea.  A defendant considering a guilty plea must weigh the
  potential benefits and risks of going to trial, testifying, confronting his
  accuser, and raising certain defenses.  See Godinez v. Moran, 509 U.S. 389,
  398 (1993).  Although there is no heightened standard of competency to
  plead guilty rather than stand trial, there is a heightened standard for
  pleading guilty in the sense that the trial court must satisfy itself that
  the waiver of constitutional rights is knowing and voluntary.  Id. at
  400-01.
   
       ¶  72.  When, as in this case, the person pleading guilty is mentally
  retarded and only marginally competent, there must be a heightened scrutiny
  of the plea to assure that it has been knowingly and intelligently entered. 
  In such situations, a routine presentation of yes/no questions is unlikely
  to achieve that purpose.  See United States v. Masthers, 539 F.2d 721,
  728-29 (D.C. Cir. 1976) ("standard Rule 11 colloquy may prove an inadequate
  measure of the validity of a plea proffered by a defendant of questionable
  mental competence"); Osborne v. Thompson, 481 F. Supp. 162, 169 (M.D. Tenn.
  1979) (routine questioning in Rule 11 colloquy "is particularly
  questionable when the defendant is of limited intelligence," and thus if
  "court is on notice that the defendant's mental facilities may be impaired,
  the court has a responsibility to delve further to determine the
  defendant's comprehension"); cf. State v. Pollard, 163 Vt. 199, 207, 657 A.2d 185, 190 (1995) (given defendant's acknowledged mental problems, trial
  court should have engaged defendant in full-scale inquiry concerning his
  experience, motives, and understanding of his undertaking in waiving
  counsel).  Indeed, as we have noted, the normally difficult task of
  accurately assessing a defendant's capacity to understand his rights when
  charged with a crime becomes daunting "when the circumstances include a
  diagnosis of mental retardation."  In re J.M., 172 Vt. 61, 68, 769 A.2d 656, 662 (2001).

       ¶  73.  The situation in this case is remarkably similar to the
  circumstances in State v. Thompson, 167 Vt. 383, 387, 708 A.2d 192, 194
  (1998), where we determined that the trial court's acceptance of a mentally
  limited defendant's no-contest plea following a brief Rule 11 colloquy was
  plain error.  In that case, the court found the defendant, who had an IQ
  below seventy, to be competent after hearing the examining psychiatrist
  testify that he was "marginally competent."  At a later status conference,
  in response to questioning by defense counsel, the defendant revealed his
  lack of understanding as to the role of the jury and how a jury trial
  functioned.  We concluded as follows:

    [G]iven 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 a 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).

    . . . .  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.

  Id.  The same is true here.  I agree with Justice Dooley both that a
  defendant need not demonstrate plain error in challenging on direct review
  the sufficiency of a Rule 11 colloquy, but that there was plain error in
  this instance, given defendant's marginal competency and the lack of any
  in-depth inquiry into his understanding of the underlying facts or the
  nature and consequences of his plea.

       ¶  74.  After reading the information in this case, the trial court
  suggested that, because of defendant's limitations, defense counsel should
  do the questioning at the plea hearing.  The following colloquy, in its
  entirety, took place:

    DEFENSE COUNSEL: Donald, I'm going to ask you a few questions. 
    Alright.  Do you understand what the charges are . . . pending
    against you?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: Okay.  And have you had an opportunity to review
    the affidavit of [the police detective] that's attached to those
    two charges?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: Now, did Tod Hill read that affidavit to you?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: That was on Friday?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: And do you understand what's in the affidavit of
    [the police detective]?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: Do you understand, Donald, that by entering
    guilty pleas today, there won't be any other proceedings other
    than the sentencing for you?  Do you understand that?

    DEFENDANT: I have had people tell me it's better to do this.  So
    I'll do this.

    DEFENSE COUNSEL: Do you understand that you have the right to have
    a trial in front of 12 people?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: Do you understand that you have the right to
    testify at that trial?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: And do you understand that you have the right for
    me to ask questions of PC, your mother, and other witnesses that
    the State would present?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: Do you understand that by entering these guilty
    pleas this morning, you are going to give up the right to have
    that trial?

    Defendant: Yes.

    DEFENSE COUNSEL: Do you have any questions at this time?

    DEFENDANT: Not that I can think of.

    DEFENSE COUNSEL: Do you feel as though - well, do you feel well
    enough to go ahead this morning?

    DEFENDANT: I'm just doing what people tell me to.

    DEFENSE COUNSEL: Well, we need to know if this is what you want to
    do.

    DEFENDANT: I want to get it over with.

    DEFENSE COUNSEL: Well, do you want to get it over with?  Do you
    want to give up your right to your trial?
   
    DEFENDANT: Yes.

    DEFENSE COUNSEL: Do you understand what's involved with the plea
    agreement?  Have you had - You and I have gone over this plea
    agreement?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: And do you feel as though you understand what the
    terms of the plea agreement are?

    DEFENDANT: From what you told me I do.

    DEFENSE COUNSEL: Do you understand that at your sentencing the
    Judge could sentence you up to ten years to serve and 20 years for
    a maximum?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: Can you do me a favor, Donald, and at this time
    can you tell me what that ten years mean?

    DEFENDANT: Minimum.  Minimum and maximum.  Minimum.  And 20 is the
    maximum.

    DEFENSE COUNSEL: Do you understand what this provision that we
    reserve the right to argue for less at sentencing?

    DEFENDANT: What was the question?

    DEFENSE COUNSEL: Do you understand what this - do you understand
    what it means for me to argue for less at sentencing?

    DEFENDANT: Yeah.  You said you could try to get it lower.

    DEFENSE COUNSEL: That's right.  Is anybody forcing you to enter
    into this plea agreement, Donald?

    DEFENDANT: No.

    DEFENSE COUNSEL: Are you doing this voluntarily?

    DEFENDANT: Yes.

    DEFENSE COUNSEL: Anybody made any other promises to you?
   
    DEFENDANT: No.

    THE COURT: Mr. Cleary, do you have any questions you'd like to ask
    me about this?

    DEFENDANT: I need some kind of help, and jail won't help me.

    THE COURT: Okay.

    DEFENDANT: That's all I can say.

    THE COURT: We can discuss this at the sentencing hearing that's
    coming up.  Are you satisfied with the help that [defense counsel]
    has given you?

    DEFENDANT: Yes.

    . . . .

    THE COURT: Okay, I take it . . . that your client is conceding
    that there is a factual basis for the charges, at least as
    amended?

    DEFENSE COUNSEL: Yes, your Honor.  We would be.

    THE COURT: Mr. Cleary, you read over the affidavits or the
    affidavits were read over to you?

    DEFENDANT: Yes.
 
       ¶  75.  This colloquy reveals that, despite his marginal competence,
  defendant was asked almost exclusively yes/no questions that failed to
  probe the level of his understanding of his guilty plea.  The only area in
  which defense counsel elicited any evidence of defendant's understanding
  was the length of the recommended sentence.  Almost all of defendant's
  responses were a simple "yes," and the ones that were not suggested that
  defendant was pleading guilty simply because others had told him that he
  should do so.  The judge at the competency hearing found that defendant had
  no understanding of the role of a jury, and yet none of the questions in
  the colloquy were aimed at assuring the court that defendant in fact
  understood how a jury trial would function, and thus what rights he was
  waiving.

       ¶  76.  Nor did the trial court address defendant personally to
  determine that he understood the factual basis for the charged offenses,
  including the elements of the offenses that the State would have to prove
  to convict him at trial.  See State v. Yates, 169 Vt. 20, 25, 726 A.2d 483,
  487 (1999) (V.R.Cr.P. 11(f) requires trial court to personally address
  defendant to assure that he is admitting to and understands "the facts as
  they relate to the law for all elements of the charges to which the
  defendant has pleaded"); cf. State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1093 (1999) (mem.) (given straightforward nature of DWI charge
  and lack of any evidence that defendant was incompetent, there was
  substantial compliance with Rule 11 based on defendant's acknowledgment
  that he had read and understood documents that included his stipulation to
  factual basis for charged offense).  It was particularly crucial for the
  court to do so in this case because the record indicated that defendant had
  suggested to police that he and his mother had had consensual sexual
  encounters in the past, and that she had consented to his conduct that led
  to the charged offenses.
   
       ¶  77.  Defendant is a mentally retarded man accused of raping his
  mother.  Notwithstanding the unanimous recognition by all concerned of his
  significant deficiencies in communicating and understanding abstract
  concepts, the trial court proceeded with a Rule 11 colloquy that was
  routine in every respect, except that defense counsel, rather than the
  court, asked the questions.  Most likely, the trial court was wary, given
  defendant's pronounced mental limitations, that its own inquiry might stray
  from any rehearsed colloquy between defendant and his attorney.  In any
  event, the court's disinclination to engage defendant in a conversation
  underscores defendant's perceived incompetence and makes a mockery of Rule
  11's requirement of a personal colloquy between the court and the
  defendant.  I believe that there was a total failure in this case to comply
  with both 11(f) and 11(c).  Because the responses elicited from defendant
  during the colloquy gave no indication that he understood the rights he was
  waiving, I would reverse the conviction and, at minimum, remand the matter
  for another plea hearing.



                                       _______________________________________
                                       Associate Justice