In re Hemingway

2014 VT 42, 97 A.3d 896, 196 Vt. 384, 2014 WL 1771989, 2014 Vt. LEXIS 44

• Court: Supreme Court of Vermont
• Decided: May 2, 2014
• Docket: 2012-376
• Status: Published

Opinions

Burgess, J.

¶ 1. In this post-conviction relief (PCR) proceeding to vacate convictions based on a change of plea following a plea agreement, the court granted petitioner’s motion for summary judgment. The PCR court concluded that the change-of-plea colloquy was fundamentally flawed because the criminal court did not specifically ask petitioner if his plea was voluntary and free of undisclosed coercion or promises as required by Vermont Rule of Criminal Procedure 11. The State appeals, arguing that the colloquy substantially complied with Rule 11, the record demonstrates the plea was voluntary, and petitioner failed to allege actual prejudice. We agree, and reverse and remand.

¶ 2. The facts are not disputed. In April 2010, the State.and petitioner proposed a plea agreement to resolve several charges pending against petitioner including kidnapping, aggravated domestic assault, domestic assault, obstruction of justice and twenty-seven counts of violating conditions of pretrial release (VCR). Under the agreement, petitioner pleaded guilty to one felony charge of aggravated domestic assault and five VCRs, and the State dismissed the other charges. The criminal court conducted a colloquy. The court explained the rights that petitioner was giving up by entering a guilty plea, delineated the sentencing consequences of the plea and established, and petitioner admitted, a factual basis for the pleas. The court did not directly inquire of petitioner as to whether his plea was coerced or induced by promises outside of the plea agreement. The court did, however, tell petitioner that it would find his guilty plea to be knowing and voluntary and asked if there was anything he wanted to say to the court before it did so — to which petitioner said “no.” In accordance with the agreement, the court sentenced petitioner to five-to-fifteen years, all suspended with probation except for forty days to serve.

¶ 3. In September 2010, the State filed a violation of probation (VOP) complaint against petitioner. In May 2011, after a hearing, the court found that petitioner violated his probation. The court revoked probation and imposed the underlying sentence to serve.

¶ 4. In the course of the VOP hearing, petitioner’s attorney discussed the background of the plea agreement and petitioner’s dissatisfaction with the State’s performance. Counsel represented that petitioner “specifically negotiated in the plea agreement that he would not abuse or harass” his wife “but he could have contact,” and that the prosecution and petitioner were “led to believe” by the Department of Corrections (DOC) “that he would ... be released after forty days in time for his daughter’s birthday.” Instead, said counsel, DOC kept petitioner past his expected release date because of another unrelated underlying sentence. Moreover, counsel continued, because of the nature of petitioner’s conviction, DOC would not release defendant before he complied with a domestic-violence program condition that he not contact his wife. These points were raised, not only in defense against the VOP, but in support of petitioner’s contemporaneous pro se motion to withdraw his plea in which he confirmed that he “took the plea agreement” presuming that “he would be released before his daughter’s first birthday, and also would be able to have contact with his wife and other child.”¹

¶ 5. In September 2011, six months later, petitioner filed for PCR. Petitioner moved for summary judgment, arguing that because the trial court did not expressly ask petitioner whether any threats or promises had been made beyond the written agreement, the plea colloquy was inadequate as a matter of law. See V.R.Cr.P. 11(d) (requiring court to inquire of defendant in open court whether plea “is voluntary and not the result of force or threats or of promises apart from a plea agreement”). Petitioner alleged that this was not a technical violation, but a fundamental flaw requiring reversal without proof of prejudice. Petitioner presented his motion for summary judgment as a pure legal question, which required no evidentiary hearing. He explicitly preserved the other issues raised in his original PCR petition. The State cross-moved for summary judgment, arguing that the court substantially complied with Rule 11, that petitioner’s post-plea representations in court confirmed voluntariness, and that petitioner’s failure to claim any prejudice was fatal to his claim.

¶ 6. Based on the pleadings, the PCR court ruled that the criminal court’s failure to engage petitioner expressly on the topic of voluntariness was fundamental error. The court relied upon the holding of In re Parks, 2008 VT 65, 184 Vt. 110, 956 A.2d 545, an appeal from a denial of a PCR challenge to a guilty plea accepted by a trial court that failed to follow any part of Rule 11 whatsoever. On those facts and absent any information called for by Rule 11, the Court in Parks vacated the plea, citing a line of direct appeal cases — not PCR cases — “holding Rule 11 violations to be plain error regardless of a showing of actual prejudice,” based on the “failure to satisfy any of the core objectives of Rule 11” by the respective change-of-plea courts. Id. ¶ 14. Borrowing from Parks, the PCR court here ruled that failure to inquire explicitly into voluntariness was core Rule 11 error regardless of actual prejudice, and entered judgment in his favor. The State appeals.

¶ 7. Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. V.R.C.P. 56(a). On appeal, this Court applies the same standard as the trial court, viewing the facts in the light most favorable to the nonmoving party. In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. “Post-conviction relief is a limited remedy, intended to correct fundamental errors in the judicial process.” In re Kirby, 2012 VT 72, ¶ 9, 192 Vt. 640, 58 A.3d 230 (mem.). In a PCR proceeding, the petitioner has the burden of proving that “fundamental errors rendered his conviction defective.” In re Dunbar, 162 Vt. 209, 211-12, 647 A.2d 316, 319 (1994) (quotation and citation omitted). '

¶ 8. Generally, post-conviction relief is not available for “technical or formal violations of Rule 11.” In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113 (1997). Substantial, rather than exact, compliance with Rule 11 is usually sufficient to achieve essential fairness and avoid reversible error. Parks, 2008 VT 65, ¶ 12. In post-appeal PCR cases subject to evidentiary hearings, the general rule is also that petitioners complaining of Rule 11 noncompliance must show that the trial court’s failure to adhere to Rule 11 was prejudicial in fact. Id. ¶ 11; see State v. Cleary, 2003 VT 9, ¶ 20, 175 Vt. 142, 824 A.2d 509 (explaining that review of Rule 11 challenge in a PCR “places upon the petitioner the additional burden of demonstrating prejudice”); United States v. Timmreck, 441 U.S. 780, 783-85 (1979) (holding that in a collateral attack on conviction defendant has burden of showing court violated Rule 11 and that there was actual prejudice). This is in keeping with the overall purpose of Rule 11. “[W]e will not allow a procedural oversight to frustrate a plea where the court’s substantial compliance with the rulé affords the defendant fair and just process.” Parks, 2008 VT 65, ¶ 11 (quotation omitted); see also State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1092 (1999) (mem.) (upholding guilty plea without literal compliance with Rule 11, where trial court relied on waiver forms executed by defendant and defendant’s statements that he understood the forms and had no questions regarding his plea).

¶ 9. As a predicate matter, it should be noted that application of the direct appeal “plain error” standard in Parks, relied on by the PCR court as well as the dissent in this case, is an exception to the general rule that PCR success depends on proof of actual prejudice resulting from a claimed procedural irregularity.² In Parks, presented with an appeal from denial of PCR from a procedurally flawed guilty plea based on a record of nothing more than a change-of-plea colloquy utterly devoid of any Rule 11 process, this Court analogized to plain error analysis. 2008 VT 65, ¶ 14. This was because, as with a direct appeal from a record empty of adherence to even one of the Rule 11 constitutional standards, it was impossible to know if the defendant understood the charges against him, or to know “with any confidence that defendant understood the legal consequences of his plea agreement and willingly entered into it,” or whether he waived an apparent or arguable violation of the double jeopardy clause. Id. ¶¶ 13-19.³

¶ 10. We disagree with the PCR court’s conclusion that failure to explicitly inquire into the voluntariness of petitioner’s plea cannot be distinguished from the wholesale Rule 11 noncompliance in Parks under the circumstances of this case. The change-of-plea colloquy in Parks failed not only to review voluntariness, but failed to include any of the warnings and confirmations necessary for a valid plea under Rule 11 such that the total noncompliance “undermine[d] confidence in the outcome of the proceedings and thus was plain error.” Id. ¶ 15 (quotation omitted). Parks found prejudice per se upon the “trial court’s failure to satisfy any of the core objectives of Rule 11.” Id. ¶ 14 (emphasis added). No such absolute failure occurred here.

¶ 11. The PCR court treated the single omission of not directly asking about voluntariness as tantamount to ignoring the rule altogether since one of the “core objectives” of Rule 11 is to ensure guilty pleas are free of coercion. Insisting on such a literal adherence to the rule, however, especially in the face of other facts supporting a countervailing claim of voluntariness, departs from our case law upholding substantial compliance with Rule 11 and requiring the petitioner to prove prejudice. The PCR court’s overbroad application of Parks precluded its due consideration of surrounding circumstances which could support the criminal court’s finding of a voluntary change of plea even without the formality of a particular script.

¶ 12. To determine the gravity of change-of-plea error, we begin with the requirements of Rule 11. “The underlying purpose of Rule 11 is to ensure that a defendant’s plea is both knowing and voluntary.” Parks, 2008 VT 65, ¶ 8. Because a defendant waives important rights by entering a plea agreement, the trial court is required to engage in a discussion with the defendant to ensure that the defendant fully understands the plea and its consequences. Id. Rule 11(c) requires the court to address the defendant personally and determine that he or she understands the nature of the charges; the minimum and maximum sentences; the rights to plead not guilty, remain silent, confront adverse witnesses and have a jury trial; and that those rights are waived by a plea allowing for conviction. V.R.Cr.P. 11(c)(1)-(4). The parties in this case agree that the court adequately addressed all these requirements during the hearing.

¶ 13. Petitioner bases his claim for relief on Rule 11(d), which provides:

Insuring That the Plea Is Voluntary. . . . [T]he court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting attorney and the defendant or his attorney.

That petitioner’s guilty pleas resulted from discussions between his attorney and the prosecutor was evident from the written plea agreement presented to the court. It is undisputed that during the colloquy the criminal court did not specifically ask petitioner if his plea was the result of coercion, threats or promises aside from the plea agreement, but the court did not entirely skip the topic. Towards the end of the colloquy, the following exchange occurred:

THE COURT: All right. So I’ll accept your guilty pleas to Counts 6, 7, 8, 9 and 10 in Docket 1441-12-09. To all these charges I’ll find that you made a knowing and voluntary waiver of your constitutional rights to a trial, and that there’s a sufficient factual basis for each of these charges. On the aggravated domestic assault — and before I do this, did you want to address the Court on anything?

PETITIONER: No, sir.

(Emphasis added.) Despite the court’s invitation to comment, petitioner offered no contradiction to the court’s express perception of his plea as voluntary. See Commonwealth v. Furr, 907 N.E.2d 664, 673 (Mass. 2009) (noting that defendant had numerous opportunities to tell court at plea hearing that he was under improper pressure and lack of such expression supported finding of voluntariness).

¶ 14. The State concedes that the court did not specifically inquire into voluntariness. The State posits, though, that circumstances surrounding and following the change-of-plea hearing support the voluntariness of the plea as found by the criminal court. Therefore, the State contends, the shortcomings of the colloquy did not amount to fundamental error that is prejudicial per se.

¶ 15. In assessing voluntariness of the plea, we consider all the circumstances. See In re Quinn, 174 Vt. 562, 565, 816 A.2d 425, 428 (2002) (mem.) (looking at “the totality of the circumstances surrounding petitioner’s pleas” to determine voluntariness); see also Brady v. United States, 397 U.S. 742, 749 (1970) (“The voluntariness of [the defendant’s] plea can be determined only by considering all of the relevant circumstances surrounding it.”). Here, the record could support the criminal court’s finding that petitioner entered his plea voluntarily. Indicia of voluntariness include petitioner’s affirmative responses during the colloquy, his acquiescence to the court’s expressed finding of voluntariness, his representation by counsel throughout the proceedings, counsel’s confirmation of petitioner’s negotiation with the prosecution, and petitioner’s own subsequent effort to enforce the plea agreement.

¶ 16. The dissent relies on cases finding prejudice per se for procedural mistakes regardless of actual prejudice, such as Boykin v. Alabama, 395 U.S. 238, 242 (1969), but the cases are inapposite. As noted earlier, prejudice is not ordinarily assumed in PCR review but must be proved. Petitioner claims neither actual coercion nor prejudice here, but only noncompliance with the literal terms of one of multiple Rule 11 requirements.⁴

¶ 17. The record before the PCR court in this case showed imperfect Rule 11 compliance, but no complete failure as in Parks. All required inquiries were conducted except for a direct question about voluntariness.⁵ The element of voluntariness was not, however, completely ignored as in Parks, but was noted by the court. While an affirmative inquiry would have been better than a conclusory declaration of voluntariness, the court’s statement did expressly invite a question that petitioner declined to raise. Nor was the record limited, in contrast to the cases cited by the dissent, to the change-of-plea colloquy alone. The PCR record included undisputed evidence that the plea agreement was negotiated by petitioner and his counsel, and that petitioner later sought to withdraw his plea claiming the State failed to meet its side of the bargain. This is not such an empty record from which we can only puzzle over petitioner’s volition, or, even borrowing from the incorrect direct appeal standard preferred by the dissent, a record that only “undermines confidence in the outcome of the proceedings and thus [is] plain error.” State v. Thompson, 167 Vt. 383, 387, 708 A.2d 192, 194 (1998).

¶ 18. Thus, the dissent is incorrect in characterizing the record as containing no information to show the plea was voluntary. Post, ¶ 30. Evidence of voluntariness was not totally missing. This is no direct appeal, but a much later collateral challenge to a conviction that accumulated subsequent circumstantial evidence relevant to the question of voluntariness. Rather than consider the change-of-plea colloquy in a vacuum, we examine the totality of the circumstances. As one federal circuit court explained, the totality of the circumstances includes “whether the defendant was represented by counsel, the judge’s inquiry during the plea hearing and the defendant’s statements, as well as the evidence proffered by the government.” United States v. Cross, 57 F.3d 588, 591 (7th Cir. 1995) (quotation omitted). In Cross, the court concluded that even though the defendant was not directly asked whether the plea was motivated by threats, coercion or undisclosed promises, the error was harmless because the full record, including post-plea proceedings, demonstrated that the plea was entered voluntarily. Id. at 592; see also Furr, 907 N.E.2d at 673 (holding that even though court did not directly inquire whether defendant’s plea resulted from threats, coercion or improper inducements, “contemporaneous record” adequately supported judge’s conclusion that plea was voluntary).

¶ 19. Here, the circumstances are no less relevant to the criminal court’s finding of voluntariness. Petitioner’s verbal willingness to proceed with the plea agreement and his evident lack of disagreement with the court’s declared finding of voluntariness is further bolstered by petitioner’s explicit later interest in withdrawing from the agreement for failure of consideration, and his lawyer’s affirmation that the terms were as negotiated. Petitioner’s answers and opportunities to speak during the change-of-plea hearing suggest nothing but volition, and the PCR court itself noted that there was no suggestion in the record that petitioner’s plea was coerced or induced by a secret promise. Petitioner’s subsequent litigation tended to ratify the agreement as his own.

¶ 20. That the surrounding circumstances included competent counsel throughout the proceeding further militates against a per se presumption of prejudice in the absence of wholesale Rule 11 noncompliance. See North Carolina v. Alford, 400 U.S. 25, 31 (1970) (explaining that plea is more likely “the product of a free and rational choice” when defendant is represented by competent counsel). It is settled that it “may be presumed that counsel discussed with defendant those elements of Rule 11 that defendant now pleads were not adequately explained to him at the change of plea hearing.” Hall, 143 Vt. at 596, 469 A.2d at 759.⁶

¶ 21. In view of the total record, there was no wholesale Rule 11 failure, the State made an affirmative showing of voluntariness, and there are no grounds for post-conviction relief absent a claim of prejudice. Petitioner’s change-of-plea hearing was not at all akin to Parks. The shortcoming of the colloquy — that the court did not explicitly inquire as to threats or promises, despite its notice to petitioner that it would find voluntariness unless told otherwise — was not so fundamental as to command reversal without proof of prejudice. Petitioner thus needed to show that but for the error, petitioner would not have pleaded guilty. See In re Bentley, 144 Vt. 404, 410, 477 A.2d 980, 983 (1984) (explaining that where petitioner claimed that trial court failed to explain nature of charges and minimum and maximum penalties, petitioner would have to show prejudice by demonstrating that he was unaware of the nature of the charges and penalties and this lack of knowledge caused him to enter plea).

¶ 22. Here, petitioner claims no prejudice. The sole basis upon which the trial court granted petitioner’s motion for summary judgment was petitioner’s claim that as a matter of law the plea .colloquy was inadequate. Petitioner specifically stated that no evidentiary development was necessary to evaluate this claim. The uncontested facts relied upon by petitioner were that he entered guilty pleas and during the colloquy the court did not specifically ask him whether his plea was “the result of force or threats or of promises apart from a plea agreement” as required by Rule 11(d). Because petitioner has claimed no prejudice, we will not assume any, and reverse the trial court’s summary judgment decision on this basis.

¶ 23. For this reason, it is premature to make any determination regarding what the dissent concludes were promises made to petitioner to induce his guilty plea — that petitioner would be released in time for his child’s birthday and would have contact with his wife and other child. Whether these promises were in fact made or were relied upon by either party at the time the plea agreement was entered are questions of fact.

¶ 24. Here, while the underlying agreement was not disclosed to the trial court, it was, according to petitioner, no secret. Whatever misunderstanding may, or may not, be proved in connection with petitioner’s status with DOC, there is no undisputed evidence that petitioner’s agreement was coerced or the product of false promises. After-the-fact monkey-wrenching by DOC, if it occurred, does not necessarily render petitioner’s decision to plead guilty involuntary or coerced.

¶ 25. Petitioner neither claimed nor proved prejudice; therefore, no substantial right of petitioner’s was affected.⁷ Thus, we reverse the court’s decision granting summary judgment to petitioner on his Rule 11 claim asserting that lack of technical compliance requires reversal without a showing of prejudice. Given that petitioner’s PCR petition raised other grounds for relief, the matter is remanded for consideration of those issues.

Reversed and remanded for further proceedings consistent with this decision.

1 A motion to withdraw a plea may by made “only by a defendant who is not in custody under sentence.” V.R.Cr.P. 32(d). Here, the court denied the motion to withdraw the plea because defendant was in custody under sentence. The court directed defendant to raise his claims in a PCR petition, and petitioner subsequently filed this action.

2 This is not the only exception. In In re Stocks, 2014 VT 27, 196 Vt. 160, 94 A.3d 1143, this Court reiterated that no showing of prejudice is required to collaterally attack guilty pleas failing to meet the Rule 11(f) mandate that the record “affirmatively show facts to satisfy each element of the offense” charged. Id. ¶ 20 (quotation omitted). The faets-sufficient-to-prove-the-charge requirement is “absolute” and “distinct from the understanding-the-elements and voluntariness inquiries.” Id. (emphasis added).

3 The inventory of the “wholesale failure” of the trial court to engage in the necessary Rule 11 colloquy included that the trial court:

did not personally address defendant at the change-of-plea hearing, except to ask for his plea on the assault-and-robbery charge. See V.R.Cr.R 11(c). The trial judge in no way ensured that defendant understood the nature of the charges to which he was pleading. See V.R.Cr.R 11(c)(1). He did not question defendant regarding defendant’s understanding of the potential sentence to which he would be subject by pleading nolo. See V.R.Cr.R 11(c)(2). Nor did the trial judge determine whether defendant understood his right to maintain a plea of not guilty. See V.R.Cr.R 11(e)(3). Above all, however, the trial judge failed to ensure that defendant knew and understood that by pleading nolo he would waive important constitutional rights that are personal to defendant, including the right to a trial by jury. See V.R.Cr.R 11(c)(4). . . . Furthermore, the court failed to inquire of defendant whether he was entering the plea voluntarily. See V.R.Cr.R 11(d). Finally, and most perplexingly, the court entered nolo contendere pleas on both charges despite the fact that defendant did not actually plead to the second charge, larceny from a person, in open court.

Parks, 2008 VT 65, ¶ 10.

4 As noted by the dissent, the Boykin rule, foreclosing assumption of constitutional compliance from a silent record, is good law today. Post, ¶ 29. But that rule is not the standard for PCR review. It is instead a standard for direct appeals from convictions limited to the trial record only. Even so, the Boykin direct appeal standard for a valid change-of-plea record includes an “affirmative showing” of voluntariness, 395 U.S. at 242, but does not require any “set ritual ... of the trial court in its determination of whether a guilty plea is made voluntarily and knowingly.” In re Hall, 143 Vt. 590, 597, 469 A.2d 756, 759 (1983); see United States v. Ward, 518 F.3d 75, 83 (1st Cir. 2008) (explaining that a “specific script, a set of magic words, or even certain types of inquiries are not required” by Boykin).

By contrast, PCR litigation can, as here, turn on evidence and burdens of proof in addition to the record of the challenged proceeding. Like Boykin, other cases relied on by the dissent for per se prejudice regardless of the evidence, except for Parks, are reversals of guilty pleas on direct appeals from limited records — not reversals of convictions from PCR collateral attacks based on circumstantial evidence and actual procedural prejudice. See post, ¶ 43 (citing several federal cases involving direct appeals from sentencing). As noted earlier, the Parks PCR exception to actual prejudice turned on the trial court’s “wholesale failure” to follow any of the Rule 11 constitutional protocol — again, not the situation presented here. 2008 VT 65, ¶ 10.

5 That such a direct inquiry, in any event, is no talisman against coercion is illustrated by In re Fuller, 135 Vt. 575, 577, 381 A.2d 1056, 1058 (1977), where a guilty plea was stricken as coerced in an appeal from PCR denial, despite the petitioner’s earlier response to the trial court’s specific inquiry that he was acting “freely, voluntarily, and without coercion.”

6 The presence of defense counsel may not, as noted by the dissent, post, ¶¶ 46-48, guarantee against involuntary pleas, but the dissent’s refusal to attribute any significance to the guardian obligations of counsel would render the defense bar to the status of potted plants, if not complicit in coercion, in change-of-plea proceedings. In the event of actual coercion, PCR petitioners may, of course, burst the presumptive bubble of adequate representation with evidence of prejudicial incompetency.

7 The dissent’s judgment that “there is clear indication of prejudice,” post, ¶ 28, without a full hearing or findings on the issue, is premature.