¶ 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(e) & (d); and (2) he was [533]*533misinformed 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 Chit-tenden Superior 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 con[534]*534versations 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, 174 Vt. 562, 563, 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, 174 Vt. 184, 193, 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.
Free access — add to your briefcase to read the full text and ask questions with AI
¶ 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(e) & (d); and (2) he was [533]*533misinformed 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 Chit-tenden Superior 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 con[534]*534versations 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, 174 Vt. 562, 563, 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, 174 Vt. 184, 193, 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 V24. 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 [535]*53511 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 seh-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 de[536]*536fendant 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.