In re E.F.

2004 VT 79, 862 A.2d 239, 177 Vt. 534, 2004 Vt. LEXIS 266
CourtSupreme Court of Vermont
DecidedAugust 24, 2004
DocketNo. 03-424
StatusPublished

This text of 2004 VT 79 (In re E.F.) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re E.F., 2004 VT 79, 862 A.2d 239, 177 Vt. 534, 2004 Vt. LEXIS 266 (Vt. 2004).

Opinion

1Í1. E.F., an eleven-year-old child, appeals from an adjudication of delinquency for aiding an attempt to poison. The Addison County Family Court found E.F. delinquent without trial, based solely on facts stipulated by his attorney. Because the family court did not conduct a Vermont Rule of Criminal Procedure 11(c) colloquy regarding these admissions, we find plain error and reverse.

¶2. E.F. delivered what he thought was poisonous silica gel to two friends at school, who put some of the gel into a teacher’s coffee. The State filed a petition for delinquency against E.F. charging him with aiding in the commission of a felony — an attempted poisoning — “in violation of 13 V.S.A., Section 2305 and 13 V.S.A., Section 3.”1 At the preliminary hearing, E.F. denied the petition. E.F. then filed a motion to dismiss on grounds that neither attempt, nor the underlying offense, 13 V.S.A. §2306 (poisoning), could be proved because silica gel is not poisonous. The family court denied the motion, ruling that an attempted poisoning conviction could follow “[i]f the State can prove that [E.F.] intended to place a poisonous substance into a drink to hurt someone.”

¶ 3. At the June 19, 2003 status conference, E.F.’s attorney entered into an agreement with the State to submit a set of stipulated facts from which the court would decide the case on the merits without a hearing. E.F.’s attorney agreed to submit the following stipulated facts:

1. On January 30, 2003, E.F. learned that M.S. and J.K. planned to poisonf], a teacher at [their school].
2. M.S. told E.F. that J.K. was going to bring in some “shoe poison,” by which M.S. meant [535]*535silica gel, a substance that is packed in shoe boxes.
3. On January 31, 2003, E.F. brought some silica gel into school and gave it to J.K. E.F. intended that M.S. and J.K. place the silica gel in [the teacher’s] coffee.
4. M.S. and J.K. put the silica gel into [the teacher’s] coffee.
5. [The teacher] drank a portion of the coffee.
6. Silica gel is not poisonous; however, the labels generally read “Throw Away. DO NOT EAT.”
7. E.F. believed that silica gel was poisonous. E.F. intended that [the teacher’s] ingestion of the substance would injure her.
8. [The teacher] suffered no physical harm as a result of this conduct.

No merits hearing was conducted. Based on the stipulated facts, the court again concluded that impossibility — the fact that silica gel is not poisonous — was no defense and adjudicated E.F. a' delinquent child for “aiding in the commission of a felony, i.e., the attempt to poison.” Although E.F. was never charged with attempt under 13 V.S.A. § 9, the court indicated in a footnote that it incorporated the charge of attempt because the defendant noted “that the charge apparently intended also to refer to 13 V.S.A. [§] 9, the attempt provision, and the State agreefd].”

¶ 4. Following its decision, the court held a disposition hearing, at which E.F., his parent/guardians, and his counsel were present, and imparted its disposition based upon the stipulated facts. Nowhere does the record reflect that the court conducted a Rule 11 colloquy at any time, either prior to accepting, the stipulated facts, or prior to entering the disposition order based upon those facts.

¶ 5. Petitioner argues on appeal that the court’s failure to conduct a Rule 11 colloquy is plain error. “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. Cleary, 2003 VT 9, ¶ 15, 175 Vt. 142, 824 A.2d 509 (quoting State v. Yates, 169 Vt. 20, 25, 726 A.2d 483, 486 (1999)). Before accepting a plea of guilty or nolo contendere, Rule 11(c) requires the court to address the defendant, explaining and' determining that he understands the nature of the charges to which the plea is offered, the minimum and maximum penalties, that defendant has the right to plead not guilty, and that defendant is waiving his rights against seff-incrimination and to a jury trial. State v. Marku, 2004 VT 31, ¶ 21, 176 Vt. 607, 850 A.2d 993 (mem.). 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 for the plea. Id.

¶ 6. The State contends that .a Rule 11 colloquy was not required because E.F. did not plead guilty or admit to the charged offense, see V.R.F.P. 1(a)(3) (modifying V.R.Cr.P. 11 in juvenile proceedings so that admissions and denials replace pleas of guilty and not guilty), but rather conceded the elements charged and contested whether they proved a crime at all. The 'State’s sole support for this proposition is State v. Loveland, in which we held that a defendant’s implicit concession to elements of an offense is not “plain error per se.” 165 Vt. 418, 422, 684 A.2d 272, 275 (1996). The Stafe also argues that E.F. was not prejudiced by the lack of a Rulé 11 colloquy since the facts admitted by stipulation were incontestable. Id. at 422, 684 A.2d at 275-76 [536]*536(defendant not prejudiced by implicit waiver of certain elements of charged offense because concessions — age and marital status of six-year-old sexual abuse victim — were beyond dispute).

¶ 7. The State’s reliance on Loveland is misplaced. Loveland involved an attorney’s tactical stipulation to certain undisputed elements of the charged offense at trial while his client was present. Id. at 419-20, 684 A.2d at 274. Here, in contrast, E.F.’s attorney admitted in writing every element of the charged offense. Some of those factual admissions, such as proof of intent to poison, were by no means facts that could be considered beyond dispute. Moreover, because the net effect of the attorney’s wholesale admissions was to waive E.F.’s right to trial and privilege against seE-incrimination, it was necessary to apply Rule ll’s procedural safeguards. See In re J.M., 172 Vt. 61, 63, 769 A.2d 656, 658-59 (2001) (finding plain error where family court accepted juvenile’s conditional plea without Rule 11 colloquy).

¶ 8. In addition, as we explained in In re J.M., special rules govern pleas, or in this case, wholesale admissions, in juvenile proceedings.

V.R.F.P. 6(d)(3) provides speeEically that the court may not accept a juvenile’s waiver of constitutional rights or admission unless it determines, among other things, that there is a factual and legal basis for the waiver or admission, that the attorney has investigated the relevant facts and law and consulted with the juvenile, and that the juvenile has entered into the waiver or admission knowingly and voluntarily.

Id. at 63, 769 A.2d at 658.2 See also Pettengill v. Gilman, 126 Vt. 387, 388, 232 A.2d 773

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Related

Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
State v. Cleary
2003 VT 9 (Supreme Court of Vermont, 2003)
State v. Yates
726 A.2d 483 (Supreme Court of Vermont, 1999)
Pettengill v. Gilman
232 A.2d 773 (Supreme Court of Vermont, 1967)
State v. Young
433 A.2d 254 (Supreme Court of Vermont, 1981)
State v. Loveland
684 A.2d 272 (Supreme Court of Vermont, 1996)
In re J.M.
769 A.2d 656 (Supreme Court of Vermont, 2001)
State v. Marku
2004 VT 31 (Supreme Court of Vermont, 2004)

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Bluebook (online)
2004 VT 79, 862 A.2d 239, 177 Vt. 534, 2004 Vt. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ef-vt-2004.