In re Calderon

In re Calderon (2002-149); 176 Vt. 532; 838 A.2d 109

2003 VT 94

[Filed 29-Oct-2003]

                                 ENTRY ORDER

                                 2003 VT 94

                      SUPREME COURT DOCKET NO. 2002-149

                              APRIL TERM, 2003


  In re Liko Calderon	               }       APPEALED FROM:
                                       }
                                       }
                                       }       Chittenden Superior Court
                                       }	
                                       }
                                       }       DOCKET NO. S0125-01 CnC

                                               Trial Judge: Mary Miles Teachout 

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant appeals from a superior court judgment denying his
  motion for post-conviction relief.  He contends the court erred in denying
  the motion because:  (1) in accepting an earlier no-contest plea to several
  misdemeanor counts, the district court failed to substantially comply with
  V.R.Cr.P. 11(c) & (d); and (2) he was misinformed about the deportation
  consequences of his plea.  We affirm. 

       ¶  2.  The record evidence may be summarized as follows.  In May
  1996, defendant - an Ecuadoran national - pled guilty in Chittenden
  District Court to one count of domestic assault and was placed on
  probation.  In August and September of the same year, he was charged with
  four additional counts stemming from separate incidents involving the same
  victim.  The charges included aggravated domestic assault, kidnapping,
  violation of probation, and violation of conditions of release.  In
  November, defendant entered into a written plea agreement with the State. 
  As set forth in the agreement, which was signed by defendant and his
  attorney David Nicholson, the State agreed to drop the aggravated assault
  and kidnapping charges in return for a plea to three counts of misdemeanor
  domestic assault and one count of simple assault.  The State also agreed to
  dismiss the violation of conditions charge and defendant agreed to admit
  the violation of probation.  Based on the plea, the State agreed to
  recommend a sentence of sixteen months to five years with a referral to the
  Intensive Domestic Abuse Program (IDAP).    
   
       ¶  3.  Prior to entering his plea with the State, defendant
  discussed the plea agreement with his attorney Nicholson.  Roberta Pratt,
  his wife and a native English speaker who is fluent in Spanish, was present
  and translated during defendant's meetings with his attorney where the
  terms of the plea agreement were discussed.  At the November change of plea
  hearing, Defendant appeared with his attorney and a court-appointed Spanish
  interpreter.  The deputy state's attorney stated that she had agreed to
  allow defendant to plead to misdemeanors because defendant had a son in the
  United States and a felony conviction would result in deportation.  In
  response to questioning from the court, attorney Nicholson indicated that
  he had reviewed the signed plea agreement with defendant, and that
  defendant had agreed to plead no contest to the amended charges.  The
  prosecutor set forth a detailed factual basis for the plea, and attorney
  Nicholson stated that defendant acknowledged his behavior was inappropriate
  and against the law.  Accordingly, he was sentenced to eighteen months to
  five years to be served in the IDAP program.  Defendant had agreed to
  increase his minimum sentence to eighteen months to accommodate the
  requirements of IDAP.

       ¶  4.  In September 2000, the Immigration and Naturalization Service
  commenced removal proceedings against defendant under the Immigration and
  Nationality Act (INA) on grounds that he had been convicted of an
  aggravated felony.  In January 2001, the immigration judge found that
  defendant's misdemeanor domestic assault convictions were aggravated
  felonies under the INA because they contained an element of physical force
  and involved a sentence of one year or more.  The judge therefore ordered
  that defendant be deported.  Defendant has appealed that ruling. 

       ¶  5.  Defendant subsequently filed a petition for post-conviction
  relief in Chittenden District Court, seeking to vacate the three domestic
  assault convictions on the ground that he was not informed of the
  deportation consequences of his plea.  In his amended petition, he claimed
  that his counsel misinformed him of the immigration consequences of his
  plea, and that the district court failed to comply with V.R.Cr.P. 11(c) and
  (d) at the change of plea hearing.  The petition did not challenge
  defendant's earlier domestic assault conviction. 

       ¶  6.  The court held an evidentiary hearing on the PCR petition in
  October 2001.  Defendant testified that he had been concerned about
  deportation but that his attorney had said, "don't worry," he would be okay
  if he pled to misdemeanors.  Attorney Nicholson also testified, stating
  that he had extensive conversations with defendant, which defendant's wife
  translated, about the charges and the plea agreement prior to the change of
  plea hearing, that he informed defendant about the rights he was waiving,
  and that he believed defendant understood the nature of the charges and the
  consequences of the plea.  Concerning deportation, Nicholson testified that
  he had informed defendant a plea to misdemeanors would reduce the chance of
  deportation, but had never guaranteed that defendant would not be subject
  to deportation if he pled to the reduced charges.

       ¶  7.  Following the hearing, the court issued a written decision,
  finding that the credible evidence did not support defendant's claim that
  he was led to believe he could avoid deportation altogether with a plea to
  the reduced charges.  The court also found that defendant was aware of the
  nature of the charges, and that he failed to carry his burden of
  demonstrating that any failure in the Rule 11 colloquy had prejudiced him. 
  In denying a subsequent motion to amend the judgment, the court issued a
  lengthy order, finding that, despite technical omissions, the district
  court had substantially complied with Rule 11 requirements, and that the
  plea was knowing and voluntary.  In this regard, the court noted that,
  although defendant claimed the Rule 11 colloquy was inadequate, he did not
  assert that his plea was involuntary as a result of any of the asserted
  omissions, but rather premised the claim on his failure to understand the
  possible deportation consequences of his plea, a claim the court found
  unsupported.  Thus, the court found no basis to amend its earlier decision. 
  This appeal followed.

       ¶  8.  The findings in a post-conviction relief decision will not be
  disturbed absent clear error, and even when the evidence conflicts, we will
  defer to the superior court in this regard.  In re Quinn, III, __ Vt. __,
  __, 816 A.2d 425, 427 (2002) (mem.);  State v. Bristol, 159 Vt. 334,
  336-37, 618 A.2d 1290, 1291 (1992).  If there is any credible evidence to
  support the findings, and the court's conclusions follow from those
  findings, this Court will uphold the superior court's decision.  In re
  Plante, 171 Vt. 310, 313, 762 A.2d 873, 876 (2000).  
        
       ¶  9.  On appeal, defendant renews his claim that the court's
  "complete" failure to engage him in the required Rule 11 colloquy rendered
  the plea involuntary as a matter of law.  As we have recently reaffirmed,
  however, in a PCR proceeding "the burden is on defendants to prove that
  [the] trial court[] did not substantially comply with V.R.Cr.P. 11 in
  accepting their plea agreements and that this noncompliance prejudiced
  their pleas."  State v. Boskind, __ Vt. __, __, 807 A.2d 358, 366  (2002)
  (emphasis added) (citing In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111,
  1113 (1997)).  Here, the record supports the court's conclusion that
  defendant failed to claim or demonstrate any prejudice resulting from the
  alleged Rule 11 omissions. 

       ¶  10.     The dissent disagrees with the trial court's factual
  findings, specifically that defendant's wife was "fluent in Spanish" and
  that Attorney Nicholson fully explained to defendant the consequences of
  his plea and the rights he was giving up by pleading no contest to the
  amended charges.  The dissent believes defendant's counsel's testimony that
  he advised his client of his  rights cannot be relied upon because
  "Nicholson does not speak Spanish and the interpreter he used, Roberta
  Pratt, did not testify at the PCR hearing."  Post, at  24. Thus, the
  dissent suggests Nicholson cannot provide the evidentiary foundation
  necessary for the trial court to find that defendant understood his rights
  and that his plea was knowing and voluntary.  We disagree.  We find
  sufficient evidence to support the trial court's ruling and we affirm.

       ¶  11.  Defendant's claim that the court failed to engage him in an
  adequate Rule 11 colloquy is based in part on the assertion that he did not
  understand the options available to him and the consequences of his plea
  agreement.  The evidence does not support this claim, however.  While at
  one point in his testimony before the PCR court, Attorney Nicholson stated
  that Roberta Pratt's Spanish was not as good as that of the court appointed
  interpreter, he also testified Ms. Pratt's Spanish was "pretty good," and
  that she "had good command of the Spanish language."  Defendant himself
  testified that Ms. Pratt's Spanish was "very good."  Further, Attorney
  Nicholson testified that he had "extensive conversations" with the
  defendant and Roberta to discuss defendant's legal situation. 
  Notwithstanding the dissent's claim to the contrary, Nicholson never
  testified that defendant did not really understand what was going on at his
  change of plea hearing.  Thus, there is credible evidence to support the
  court's conclusion that Ms. Pratt was an adequate and accurate interpreter.  

       ¶  12.  The court further found that Ms. Pratt was on good terms with
  defendant, was supportive of him,  understood the nature of the charges
  against him, and "displayed a high degree of concern in the outcome of
  petitioner's case."  These findings are supported by the testimony of
  Attorney Nicholson, who stated that Ms. Pratt had a high degree of concern,
  was interested, had an understanding of the allegations that had been made
  against defendant with respect to the criminal charges, and that she
  presented herself as an "intellectually-aware person," a "very intelligent
  woman who was well-educated."  Further evidence of the defendant's
  understanding of his options is found in State's Exhibit #11, the
  transcript of the sentencing hearing that followed his change of plea.  At
  that time, the minimum sentence was increased from sixteen months to
  eighteen months because participating in the intensive domestic abuse
  program, IDAP, required a minimum eighteen- month sentence.  When asked by
  the court at sentencing if defendant was willing to agree to the sentence,
  Attorney Nicholson explained that, with the assistance of the interpreter
  provided and Roberta Pratt, they had gone over the Presentence Report with
  defendant and discussed the issue, and that defendant understood the reason
  for the increase in the minimum term.
        
       ¶  13.  Though defendant testified that the interpreter provided for
  his change of plea hearing was "no good," and that he didn't understand
  her, he admitted he never complained to his attorney or to the court. 
  While he claimed his attorney told him deportation would be "no problem,"
  his attorney denied any such promises.  It was for the PCR court to
  determine the credibility of the witness.   See State v. Hagen, 151 Vt. 64,
  65, 557 A.2d 493, 494 (1989) (trier of fact has sole discretion to
  determine weight of evidence, credibility of witnesses, and persuasive
  effect of testimony).   The court's findings are supported by the evidence. 
  From these findings, the trial court's conclusions that defendant
  understood the options available to him in his legal proceedings, had the
  benefit of adequate counsel and adequate interpreters, and failed to show
  how the trial court's failure to fully comply with the requirements of Rule
  11 in any way prejudiced the plea he made, were reasonable.

       ¶  14.  Defendant's plight can be distinguished from the Rule 11
  cases cited by the dissent.  Post, at  20.  Here, defendant did not claim
  that he was coerced into making the plea, or that he did not understand the
  charges, or that he did not know he had a right to a jury trial, or that he
  was waiving his privilege against self-incrimination.  Instead, he claims
  prejudice only with respect to a collateral matter - that he did not
  understand the possible deportation consequences of his plea.  The PCR
  court found that Attorney Nicholson had adequately advised defendant that
  the reduction in the charges from felony to a misdemeanor would reduce the
  chances of his deportation, but not eliminate them all together. 

       ¶  15.  Even if defendant had misunderstood the potential deportation
  consequences of his plea, he failed to show that a different Rule 11
  colloquy would have had any bearing on his decision.  Nothing in the record
  supports the claim that defendant would not have entered the plea absent
  counsel's advice regarding deportation.  As the court here noted, defendant
  also accepted  the plea to avoid jail, and faced a potential maximum term
  of thirty-six years on the original felony charges.  A trial would not have
  eliminated the risk of deportation.  See In re Resendiz, 19 P.3d 1171, 1187
  (Cal. 2001) (in 
  holding that counsel's misadvice about deportation consequences of plea was
  not prejudicial, court
  noted defendant's choice was not "between, on the one hand, pleading guilty
  and being deported and, on the other, going to trial and avoiding
  deportation.  While it is true that by insisting on trial petitioner would
  for a period have retained a theoretical possibility of evading the
  conviction that rendered him deportable and excludable, it is equally true
  that a conviction following trial would have subjected him to the same
  immigration consequences").  We conclude, therefore, that the court's
  decision to deny the petition based on the absence of prejudice was sound.

       Affirmed.

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                                 Dissenting


       ¶  16.  JOHNSON, J., dissenting.  I cannot agree with the majority
  that the complete absence of a Rule 11 colloquy with a defendant who did
  not speak English was a mere technical violation that did not affect the
  voluntariness of defendant's plea.  Neither can I agree that the majority
  opinion correctly applies our law under Rule 11.  The standard for
  prejudice this Court applies in reviewing a petition for post-conviction
  relief does not focus on whether or not defendant would have entered the
  plea but for the Rule 11 violation; the focus is on whether or not there is
  prejudice to the plea itself if defendant entered into it without an
  explanation of his rights.  When the correct standard is applied, and the
  totality of circumstances is considered, the plea in this case was
  involuntary.  I would reverse, and therefore I respectfully dissent. 
   
       ¶  17.  This case presents an unfortunate combination of
  circumstances.  Defendant spoke no English at the time the plea was taken. 
  All the critical legal issues, including those mandated by Rule 11,
  concerning what the plea meant, what rights defendant was giving up, and
  what defendant understood would be the collateral consequences of the plea
  (possible deportation), were allegedly explained to him by his attorney,
  David Nicholson.  Defendant's former wife, Roberta Pratt, acted as
  interpreter between defendant and his attorney, but she was not in court on
  the day defendant pled guilty. (FN1)  On that day, a court interpreter was
  present whom defendant says he could not understand.  While the interpreter
  provided simultaneous translation of the proceeding, defendant did not say
  a single word.  Even if he did understand the interpreter, there is no
  colloquy in open court with defendant about the voluntariness of his plea. 
  Defendant signed a standard waiver of his rights in English.  This is
  meaningless because defendant neither spoke nor read English.

       ¶  18.  The attack on the guilty plea came about over an issue of
  collateral consequences.  At the PCR hearing, defendant testified that
  because of his language problems, he did not even understand the word
  guilty.  He asserts that he did what his lawyer told him to do because he
  was told that he would avoid deportation.  Defendant's story is at least
  consistent with the fact that the state's attorney had reduced the felony
  charges against defendant to misdemeanors to help defendant avoid
  deportation.  The federal immigration authorities viewed the situation
  differently and initiated deportation proceedings.  The issues at the PCR
  hearing revolved around the voluntariness of defendant's plea.  Defendant
  claimed he did not understand the plea proceedings.  His attorney,
  Nicholson, claims defendant was fully advised and that he made no
  guarantees about deportation.  The trial court found against defendant on
  this issue.  If this case were just about whether or not defendant's
  counsel had coerced him into pleading guilty, or had been ineffective in
  advising him about collateral consequences, I would agree that defendant
  did not carry his burden at the PCR hearing.

       ¶  19.  Defendant's second ground for relief, however, was that the
  plea was involuntary because of the Rule 11(c) and (d) violations, and
  should be vacated on that ground.  Despite the fact that there was no
  colloquy with defendant, the trial court rejected this claim by finding
  there was "substantial compliance" with Rule 11.  Moreover, it ruled that
  because defendant had reason to enter the guilty plea anyway (to avoid
  deportation), he could not have been prejudiced by the Rule 11 violations. 
  The majority agrees with this interpretation of our Rule 11 jurisprudence
  and holds that defendant must show, in effect, that he would not have
  entered the plea, absent the Rule 11 violation.  I disagree that this is
  our law.
   
       ¶  20.  The question the Rule 11 colloquy answers is whether the plea
  of guilty is voluntarily and knowingly made by the defendant.  State v.
  Yates, 169 Vt. 20, 25, 726 A.2d 483, 486 (1999) ; In re Thompson, 166 Vt.
  471, 474, 697 A.2d 1111, 1113 (1997); Reporter's Notes, V.R.Cr.P.11.  A
  plea is not voluntary if the defendant does not understand the nature of
  the charges against him, what it means to plead guilty, and what rights he
  is giving up that inhere in a fair trial.  See, e.g., State v. Louthan, 595 N.W.2d 917, 921-22 (Neb. 1999) (to establish voluntariness of guilty plea,
  court must examine defendant to determine that he understands that by
  pleading guilty, he waives his privilege against self-incrimination, right
  to confront witnesses, and right to a jury trial); In re Kasper, 145 Vt.
  117, 119, 483 A.2d 608, 609 (1984) (plea cannot be voluntary unless
  defendant possesses an understanding of the law in relation to the facts). 
  An involuntary plea is a violation of due process.  See Bousley v. U.S.,
  523 U.S. 614, 618 (1998) ("A plea of guilty is constitutionally valid only
  to the extent it is voluntary and intelligent.") (internal quotations
  omitted); Brady v. U.S., 397 U.S. 742, 748 (1970) ("Waivers of
  constitutional rights not only must be voluntary but must be knowing,
  intelligent acts done with sufficient awareness of the relevant
  circumstances and likely consequences."); McCarthy v. United States, 394 U.S. 459, 466 (1969) ("[I]f a defendant's guilty plea is not . . .
  voluntary and knowing, it has been obtained in violation of due process and
  is therefore void.").  We adopted  McCarthy in State v. Yates, 169 Vt. 20,
  25, 726 A.2d 483, 487 (1999).  

       ¶  21.  To ensure due process, the standard of review on the
  voluntariness of a plea cannot be that there were good reasons for the
  defendant to enter the plea, even if he did not know what rights he was
  giving up.  Rather, the focus must be on the defendant's understanding of
  those rights, no matter how advantageous the plea agreement may have been,
  or how much he wanted it.  We presume that the plea agreement is made
  because the defendant wants it, but the defendant has to want it after
  being advised in open court of the rights he is giving up in exchange. 
  This is the meaning of prejudice to the plea, the standard we referred to
  in State v. Boskind, __ Vt. __, __, 807 A.2d 358, 366 (2002) (holding that
  in post-conviction relief proceeding, "the burden is on defendants to prove
  that their respective trial courts did not substantially comply with
  V.R.Cr.P. 11 in accepting their plea agreements and that this noncompliance
  prejudiced their pleas") (emphasis added). Otherwise, there is no point in
  engaging in the Rule 11 colloquy to determine voluntariness. 

       ¶  22.  Indeed, our very recent jurisprudence has looked at the
  voluntariness question in precisely this manner.  In In re J.M., 172 Vt.
  61, 769 A.2d 656 (2001), the complete lack of a Rule 11 colloquy was raised
  on direct appeal.  We vacated the plea as plain error because the court did
  not inquire of J.M. whether he understood the charges against him,
  understood the penalties provided by law, understood he was waiving
  important constitutional rights, and if his plea was knowing and voluntary. 
  "The brief exchange that took place was between the court and the
  attorneys, and this exchange was more to ensure that the paperwork was
  filled out properly than to fulfill the requirements of Rule 11 . . . . As
  a result, we must vacate J.M.'s admission."  Id. at 63, 769 A.2d  at 658-59. 
  In other words, despite the fact that J.M. was represented by counsel and
  some limited colloquy with counsel took place, we could not satisfy
  ourselves from the record that there were any indicia of reliability to the
  plea.  Therefore, we could not uphold it.  Even more recently, in In re
  Quinn, III, __ Vt. __, __, 816 A.2d 425, 428 (2002) (mem.), a
  post-conviction relief proceeding where prejudice is required, we
  invalidated a guilty plea as involuntary despite the defendant's statement
  in open court that his plea was voluntary, because there was evidence of
  coercion by his attorney.  Other circumstances surrounding the plea failed
  to provide assurance the plea was voluntary; defendant had been depressed
  and had recently attempted suicide.  In Quinn, the prejudice that we
  considered was prejudice to the voluntariness of the plea.  Id. at __, 816 A.2d  at 426-27 (holding that a "court's finding of fundamental error in the
  acceptance of a guilty plea is sufficient to award [post-conviction]
  relief").  Even though Quinn was a PCR, we did not review the plea from the
  standpoint of what consequences the defendant avoided by entering the plea.
        
       ¶  23.  The situations presented in J.M. and Quinn are different from
  the many Rule 11 cases we review presenting more technical violations that
  do not go the heart of voluntariness.  For example, we have held where
  there is partial, but not strict, compliance with Rule 11, and there are
  other indicia of voluntariness, that the plea is valid.  See, e.g., State
  v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1093 (1999) (mem.) (not
  looking at the desirability of the plea agreement but finding the following
  indicia of voluntariness to render defendant's guilty plea valid: lack of
  evidence that defendant was not competent to understand his situation,
  defendant's execution of waiver forms, court's inquiry confirming that
  defendant understood these documents, and defendant's stipulation to
  factual basis for charge); Thompson, 166 Vt. at 476, 697 A.2d  at 1114
  (Court assured of substantial compliance with Rule 11(c) by fact that
  petitioner's dialogue with court during plea hearing "plainly indicated
  that he had reviewed the forms with his attorneys" and following additional
  explanations of the forms he had signed, petitioner "expressed satisfaction
  with the agreements"). 

       ¶  24.  Here, the totality of the circumstances does not support a
  conclusion that the plea was voluntary.  See Quinn, __ Vt. __, __, 816 A.2d 
  at 428 (looking at "the totality of the circumstances surrounding
  petitioner's pleas").  First, contrary to the trial court's holding, this
  is not merely a technical violation of Rule 11 where we might be able to
  find substantial compliance by looking at the surrounding circumstances. 
  Like the record in J.M., it is bare.  There is not even a partial colloquy
  to which we might turn to satisfy ourselves that defendant, through the
  court's interpreter, understood that he was pleading guilty and waiving his
  rights.  Second, we cannot rely on Nicholson, defendant's attorney, who
  claimed to have advised him of his rights at a time other than the day of
  the plea through an interpreter.  Nicholson does not speak Spanish and the
  interpreter he used, Roberta Pratt, did not testify at the PCR hearing. 
  Under these circumstances, I do not understand how Nicholson can provide
  the evidentiary foundation necessary for the trial court to find that
  defendant understood his rights and that his plea was knowing and
  voluntary.  Moreover, contrary to the findings of the PCR court, Nicholson
  was concerned that Pratt's Spanish was not all that good.  He described it
  as "halting," and he feared that defendant did not really understand what
  was going on.  Nicholson added that defendant always tried to be very
  pleasant and accommodating, so "a lot of times he would indicate that he
  understood things, where I didn't really think he did." Third, we cannot
  rely on the written waiver, not written in Spanish, for obvious reasons. 
  In short, there is nothing from the record or the surrounding circumstances
  that gives us any confidence that defendant knowingly waived his rights. 
  On the contrary, given the language barrier, we have every reason to doubt
  voluntariness, and therefore, I dissent.

       ¶  25.  I am authorized to state that Justice Dooley joins in this
  dissent.



  Dissenting:                             BY THE COURT:
  

  ____________________________________    _________________________________
  Denise R. Johnson, Associate Justice    Jeffrey L. Amestoy, Chief Justice

  ____________________________________    _________________________________
  John A. Dooley, Associate Justice       Marilyn S. Skoglund, 
  					  Associate Justice

                                          _________________________________
                                          Frederic W. Allen, Chief 
                                          Justice (Ret.) 
                                          Specially Assigned




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                                  Footnotes


FN1.  The trial court's Finding #4 indicates that Roberta Pratt was present
  at the change of plea hearing but this finding is clearly erroneous.  The
  transcript of the hearing includes reference to a court-provided Spanish
  interpreter, and defendant testified during the PCR hearing that Robert
  Pratt was not present at the plea hearing.  The trial court's finding that
  Pratt was present is apparently based upon Nicholson's statement that he
  "believe[d]" Pratt was at the hearing, but Nicholson had no specific
  recollection that Pratt was present.  Whether or not Pratt was there,
  however, does not change the fact that Pratt had no obligation to explain
  the rights defendant was about to waive. That obligation belonged to the
  Court, which utterly failed to perform it.