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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2021 VT 24
No. 2019-322
In re Michael Lewis Supreme Court
On Appeal from Superior Court, Chittenden Unit, Civil Division
January Term, 2021
Helen M. Toor, J.
Robert Appel, Charlotte, for Petitioner-Appellant.
Sarah George, Chittenden County State’s Attorney, and Pamela Hall Johnson, Deputy State’s Attorney, Burlington, for Respondent-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. ROBINSON, J. Petitioner appeals the trial court’s summary judgment denying
his petition for post-conviction relief (PCR) from his 2009 convictions and accompanying
habitual-offender sentence enhancement. He argues: (1) his plea to the 2005 false-pretenses
charge used to support the 2009 habitual-offender enhancement lacked a factual basis; (2) three of
his 2009 convictions were invalid because he did not verbally enter a plea; and (3) the PCR court
erred in refusing to address some of his claims. We conclude that petitioner waived a potential
collateral challenge to use of the 2005 predicate conviction to enhance his 2009 sentence when he
pled guilty to the habitual-offender enhancement in 2009; considering the plea colloquy as a whole,
the court’s failure to elicit a verbal plea contemporaneous with the court’s review of three of the
2009 charges does not invalidate his convictions on those charges; and the PCR court did not err in declining to address additional claims raised by petitioner in argument but omitted from his
amended petition. Thus, we affirm.
¶ 2. In 2009, petitioner pled guilty to several charges, including two charges of
involuntary manslaughter and multiple charges of grossly negligent operation of a vehicle with
serious bodily injury resulting. The charges all arose from petitioner crashing his passenger-filled
car head-on into an oncoming vehicle while driving excessively fast in an attempt to elude police
officers. Pursuant to petitioner’s plea agreement, the trial court sentenced petitioner as a habitual
offender based on four prior felonies dating from 2004 to 2008.
¶ 3. In 2017, petitioner filed a pro se PCR petition. His amended, counseled PCR
petition sought to vacate three of the four predicate felony convictions used to support the 2009
habitual-offender enhancement (escape convictions from 2004 and 2008, and a false-pretenses
conviction from 2005) and challenged three of his 2009 convictions on the separate and
independent ground that he never verbally pled guilty to those charges in the context of the 2009
plea colloquy.1
¶ 4. Ruling on cross-motions for summary judgment, the PCR court rejected the State’s
argument that petitioner waived any collateral challenges to the predicate convictions that
supported the habitual-offender enhancement when he entered the 2009 guilty plea. The PCR
court thus examined the plea colloquies in connection with the three challenged predicate
convictions and concluded that the colloquies in the 2004 escape and 2005 false-pretenses
convictions complied with Vermont Rule of Criminal Procedure 11(f). However, it determined
that the colloquy leading to the 2008 escape conviction was insufficient because the trial court
failed to ask anything about the accuracy of the State’s allegation. In a separate summary-
judgment decision concerning the adequacy of the 2009 plea colloquy relating to the three 2009
1 Whether the amended petition also included ineffective assistance of counsel claims is a contested issue on appeal. We review the procedural history relevant to this question in more depth in ¶¶ 20-25 below. 2 convictions petitioner challenged, the PCR court concluded that Vermont law does not require an
express question or statement of guilt and that it was “crystal clear” from petitioner’s statements
that he was admitting guilt to the three counts at issue. The court noted that petitioner had
requested an evidentiary hearing on ineffective-assistance-of-counsel claims, but concluded that
the amended petition before the court did not include any such claims. The court thus granted
judgment to the State in connection with the 2004 escape conviction, the 2005 false-pretenses
conviction, and the challenged 2009 convictions. The court granted petitioner judgment with
respect to the 2008 escape conviction and remanded the docket to the criminal division to vacate
the conviction and reinstate the charge.
¶ 5. On appeal, petitioner argues that: (1) the plea colloquy leading to the 2005 false-
pretenses conviction did not comply with Rule 11(f) because there was an insufficient factual basis
for the plea; (2) his 2009 convictions on three of the charges were invalid because he did not
verbally enter a guilty plea; and (3) the PCR court erred in refusing to address petitioner’s various
ineffective-assistance-of-counsel claims relating to his representation in connection with the
respective predicate convictions underlying his 2009 habitual-offender enhancement and in
connection with his 2009 conviction and sentencing.
¶ 6. We review the trial court’s summary-judgment decision without deference,
applying the same standard as the trial court. In re Gay, 2019 VT 67, ¶ 7, 211 Vt. 122, 220 A.3d
769. Summary judgment is warranted when there are no issues of material fact, and a party is
entitled to judgment as a matter of law. V.R.C.P. 56(a).
I. Challenge to Predicate Conviction
¶ 7. We conclude that when he pled guilty to the habitual-offender enhancement based
in part on the 2005 false-pretenses conviction, petitioner waived a collateral challenge to the use
of that conviction to support a habitual-offender enhancement to his sentence in connection with
3 the 2009 charges.2 Recent decisions of this Court compel this conclusion, and we are unpersuaded
by petitioner’s critique of those decisions.
¶ 8. In Gay, a petitioner who had pled no contest to an offense with a habitual-offender
enhancement subsequently filed a PCR petition challenging the habitual-offender sentence
enhancement on the basis that the plea colloquies in connection with the underlying convictions
violated Rule 11. 2019 VT 67. We held that by pleading no contest knowingly and voluntarily,
the petitioner had expressly waived his right to appeal all nonjurisdictional defects in his charge,
including the existence of any underlying convictions that made him eligible for a sentencing
enhancement. Id. ¶ 12. Therefore, we concluded that the petitioner had expressly waived his right
to collaterally attack the prior proceedings. Id. ¶ 13.
¶ 9. While petitioner’s appeal was pending in the case before us, this Court issued a
decision in In re Benoit reaffirming the reasoning and holding in Gay that “a defendant may not
accept the benefit of a plea bargain, expressly waive the right to collaterally attack a predicate
conviction, then attempt to make a collateral attack anyway.” 2020 VT 58, ¶ 16, __ Vt. __, 237
A.3d 1243 (citing Gay, 2019 VT 67, ¶ 12). We concluded that, with the State’s agreement and the
court’s approval, a defendant can plead guilty and still preserve a PCR challenge to a predicate
conviction “by stating on the record at the change-of-plea hearing an intent to challenge one or
more of the convictions through a PCR petition, specifically identifying the convictions they intend
to challenge, and stating the bases for the challenges.” Id. ¶ 18.
2 Petitioner does not challenge the trial court’s determination that the plea colloquy in connection with the 2004 conviction complied with Rule 11, and the State has not cross-appealed to challenge the court’s separate judgment that the colloquy leading to the 2008 conviction did not, so we do not address the Rule 11 challenges to the 2004 and 2008 convictions. Petitioner argues that the State is precluded from raising the argument that petitioner waived a collateral challenge to the 2005 conviction on appeal, having failed to file a cross-appeal. The State was not required to file a cross-appeal in this case where it was satisfied with the PCR court’s judgment and instead advanced alternate grounds to support the decision below. See Huddleston v. Univ. of Vt., 168 Vt. 249, 255-56, 719 A.2d 415, 419 (1998). 4 ¶ 10. In petitioner’s supplemental briefing in this case, he urges us to revisit our holdings
in Gay and Benoit, arguing that a guilty plea does not amount to a knowing and voluntary waiver
of collateral challenges to predicate convictions. See, e.g., State v. Hance, 157 Vt. 222, 224, 596
A.2d 365, 366 (1991) (explaining that defendant can waive constitutional or statutory rights if
“waiver is knowing, intelligent, and voluntary”). Petitioner acknowledges that the standard plea
colloquy advises defendants that a guilty plea constitutes a waiver of the right to direct appeal, but
asserts that it does not put defendants on notice that they will be barred from seeking post-
conviction relief.
¶ 11. If the question before us was whether a defendant who pleads guilty to a charge or
enhancement without expressly preserving a PCR challenge to a predicate offense forever waives
the right to collaterally challenge the predicate convictions in any context, petitioner’s waiver
analysis might make sense. But our holdings in Benoit, and its predecessors, are more limited,
and rest on the established principle that when an individual knowingly and voluntarily pleads
guilty to a charge, and admits to facts collectively establishing all of the elements of the charge,
that guilty plea operates as a waiver of most challenges to the resulting conviction that are based
on nonjurisdictional defects in the proceedings.3 See, e.g., Gay, 2019 VT 67, ¶ 12; In re Torres,
2004 VT 66, ¶ 9, 177 Vt. 507, 861 A.2d 1055 (mem.). This waiver applies to a broad range of
nonjurisdictional challenges, including even waivable constitutional challenges. See, e.g., State v.
Armstrong, 148 Vt. 344, 345-46, 533 A.2d 1183, 1184 (1987) (holding that defendant waived the
3 We have recognized that the broad waiver of nonjurisdictional challenges is not a blanket waiver. See State v. Phillips, 2018 VT 85, ¶ 14 n.7, 208 Vt. 145, 195 A.3d 1099 (noting that “the ‘knowing and voluntary’ requirement necessarily compels a number of limited exceptions to the general rule that a defendant can waive virtually any nonjurisdictional right”); In re Torres, 2004 VT 66, ¶ 9, 177 Vt. 507, 861 A.2d 1055 (mem.) (citing cases recognizing host of rights that defendants who plead guilty cannot waive, including, among others, right to challenge ineffective assistance of counsel, competency determination, and right against self-incrimination at sentencing); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (holding that, although guilty plea waives most claims of error, it does not preclude attack on voluntary and intelligent character of plea itself). 5 right to challenge allegedly unlawful seizure by voluntarily pleading guilty to DUI charge). We
explained in In re Parks that ordinarily criminal defendants can waive important constitutional
rights, such as the right to be free from double jeopardy, only by “intentional relinquishment or
abandonment” of the right, but in the context of plea agreements, “conscious waiver of every
potential defense is not necessarily required, and an intelligent plea in compliance with Rule 11
typically forecloses collateral attack on the plea.” 2008 VT 65, ¶ 17, 184 Vt. 110, 956 A.2d 545
(quotation omitted). In short, consistent with established law regarding the effect of a guilty plea,
we conclude that by pleading guilty to the habitual-offender enhancement based upon the 2005
conviction, petitioner waived the right to collaterally challenge the habitual-offender enhancement
on the basis that the 2005 conviction was not valid.
II. 2009 Plea Colloquy
¶ 12. Petitioner contends that his 2009 convictions of three charges of grossly negligent
operation with serious bodily injury resulting are invalid because he never verbally entered a plea
of “guilty” to those charges in the context of his plea colloquy. As set forth more fully below,
while a verbal plea of “guilty” on the record is generally an important component of a knowing
and voluntary guilty plea, it is not essential if the circumstances compel the conclusion that the
defendant pled guilty to the charge and the court accepted it. Reviewing the record in this case in
more detail, we conclude that the circumstances clearly compel the conclusion that petitioner pled
guilty to the three counts in dispute.
¶ 13. Because a guilty plea waives important constitutional rights, the court must “satisfy
itself that the plea is voluntary and made with an understanding of its consequences.” In re Hall,
143 Vt. 590, 594, 469 A.2d 756, 758 (1983); see also Boykin v. Alabama, 395 U.S. 238, 244
(1969) (reversing conviction based on guilty plea where record “d[id] not disclose that the
defendant voluntarily and understandingly entered his pleas of guilty” (quotation omitted)). To
ensure the voluntariness of guilty pleas, Rule 11 requires the court, before accepting a guilty plea,
6 to ensure that a defendant who wants to plead guilty understands a host of specified consequences,
and to determine that the plea is voluntary and not the result of force or threats or promises apart
from the plea agreement itself. See V.R.Cr.P. 11(c), (d). In addition, before entering judgment,
the court must satisfy itself that there is a factual basis for the plea, and that the defendant
personally admits to those facts. See In re Stocks, 2014 VT 27, ¶ 14, 196 Vt. 160, 94 A.3d 1143;
see also V.R.Cr.P. 11(f). Rule 11 does not prescribe a specific form of colloquy, and it does not
explicitly require that a defendant verbally state “I plead guilty” or a similar phrase.
¶ 14. Although courts should elicit an express verbal guilty plea to each count to which
a defendant pleads guilty, the failure to do so does not necessarily invalidate the ensuing
conviction. In general, “the strongly preferred practice is to specifically inquire of the defendant
whether [the defendant] in fact pleads guilty.” United States v. Grandia, 18 F.3d 184, 187 (2d Cir.
1994); see also Boykin, 395 U.S. at 243 (explaining that court cannot presume waiver of important
federal constitutional rights from a silent record). But courts have held that the absence of a
statement that the defendant intends to plead guilty “after each charge is inconsequential where
the circumstances compel the conclusion that the defendant did enter a plea of guilty and that the
plea was accepted by the judge.” Commonwealth v. Tavernier, 922 N.E.2d 166, 173 (Mass. App.
Ct. 2010) (quotation omitted); see also Grandia, 18 F.3d at 187 (“[T]he district court’s failure to
specifically ask the defendant ‘How do you plead?’ is not necessarily fatal if, as here, it is clear
from the facts and circumstances that the defendant intended to plead guilty, affirmatively admitted
his guilt, stated that he was entering his plea voluntarily, and fully believed he was pleading
guilty.”); State v. Holden, 2009-1714, p. 2 (La. 4/9/10); 32 So. 3d 803, 804 (per curiam) (holding
that failure of defendant to state “I plead guilty” did not “render an[] otherwise knowing,
intelligent, and voluntary guilty plea invalid”); State v. Yancey, 2019-NMSC-018, ¶ 13, 451 P.3d
561 (“[N]o ‘talismanic incantation’ of the words ‘I am guilty’ is required in order for a defendant
to plead guilty, at least where ‘the language used is expressive of the defendant’s culpability.’ ”
7 (quotation omitted)). We agree that where a plea is otherwise knowing, intelligent, and voluntary,
the court’s failure to elicit an express verbal guilty plea from the defendant does not invalidate the
ensuing conviction when there is no doubt that the defendant intended to plead guilty and
understood that they were doing just that.
¶ 15. Applying these principles to the record here, we conclude based on the totality of
the circumstances that petitioner clearly and unequivocally pled guilty to the three contested
charges, notwithstanding the court’s failure to specifically elicit his express verbal plea to those
charges during its charge-by-charge review. As a result of petitioner’s conduct in driving a car
full of passengers, the State charged him with sixteen offenses, as well as a habitual-offender
enhancement: two counts of manslaughter, seven counts of grossly negligent operation of a vehicle
resulting in death or serious bodily injury, and seven counts of eluding resulting in death or serious
bodily injury. Petitioner and the State ultimately entered into a written plea agreement, signed by
petitioner, pursuant to which petitioner would plead guilty to two counts of manslaughter and five
counts of grossly negligent operation resulting in serious injury, along with the habitual-offender
enhancement. The State was to dismiss the remaining charges. The controlling sentence under
the written plea agreement was to be twenty-two years to life, to serve.4
¶ 16. In reviewing the parties’ agreement, the trial court conducted a lengthy plea
colloquy with petitioner. At the outset, in response to the court’s inquiry, petitioner confirmed that
the proposed plea agreement consisted of “pleas” to two counts of manslaughter and five counts
of grossly negligent operation of a motor vehicle with serious bodily injury resulting. Throughout
the plea colloquy, the court referenced the fact that petitioner had chosen to plead guilty. It advised
him of his right to plead not guilty, and explained that by pleading guilty he was giving up his
rights to a trial at which the State would have a burden of proving him guilty beyond a reasonable
4 The written plea agreement is silent as to petitioner’s actual plea. On the completed Notice of Plea Agreement form, with respect to each charge, there is no circle or other marking by either the plea of “guilty” or the plea of “nolo contendere.” 8 doubt on each charge; to remain silent about the charged offenses; to a jury trial where he could
put on his own evidence; to counsel in connection with that trial, at State expense if he could not
afford counsel; and to appeal. Among other things, petitioner confirmed that it was his choice to
plead guilty, that he had discussed it with his attorneys, and that he was satisfied with his legal
representation. The State’s Attorney recited a factual basis for the charges, describing in detail the
events that gave rise to them, identifying each of the seven victims, describing the serious injuries
to five of the victims, and stating that the other two had died. Petitioner expressly and verbally
agreed that the description was accurate.
¶ 17. The court then reviewed each individual count with petitioner, ensuring that
petitioner understood each charge and the sentence he faced in connection with that charge, and
eliciting petitioner’s agreement that the alleged facts were accurate. In connection with the two
manslaughter charges as well as two of the charges for grossly negligent operation resulting in
serious bodily injury, the court asked how petitioner would like to plead and petitioner stated
“guilty.” In connection with three of the grossly-negligent-operation charges (counts 3, 7, and 9),
the court did not expressly ask how petitioner wanted to plead. However, in each case, the court
read petitioner the charge, ensured that he understood its elements, and confirmed the maximum
penalty petitioner faced. In addition, the court reviewed the count-specific facts associated with
each of these charges—namely, the identity of and injuries to the specific victim named in the
charge—and petitioner orally confirmed the accuracy of the essential factual allegations.
¶ 18. At the end of this count-by-count review of the charges, in response to questions
from the court, petitioner specifically acknowledged driving away after an officer pulled him over,
driving at least eighty miles per hour, and driving in a grossly negligent way. At that point, the
court stated, “I’ll accept your plea to all seven charges, find that in each case, the plea is voluntary,
made with knowledge and understanding of its consequences after a knowing waiver of your
9 constitutional rights and that it has a factual basis in the events of October 4th.” Petitioner did not
object. The court entered a judgment of conviction on each of the seven counts.
¶ 19. The above record leaves no doubt as to petitioner’s intent to plead guilty to all
counts in the plea agreement, including the three grossly-negligent-operation charges that
petitioner challenges in this PCR which were inextricably connected to all other charges. For that
reason, we reject petitioner’s claim that the court’s failure to specifically elicit his express verbal
plea to those charges during its count-by-count review invalidates the ensuing convictions.
III. Ineffective-Assistance-of-Counsel Claim
¶ 20. Petitioner’s final argument is that the PCR court erred in failing to allow petitioner
to fully litigate all his claims, including various ineffective-assistance-of-counsel claims. On
appeal, we review the denial of a motion for relief from judgment under Vermont Rule of Civil
Procedure 60(b)(6) for an abuse of discretion. Penland v. Warren, 2018 VT 70, ¶ 6, 208 Vt. 15,
194 A.3d 755. After reviewing the procedural history of petitioner’s PCR proceedings in more
depth, we conclude that the trial court did not abuse its discretion in declining to address
ineffective-assistance-of-counsel claims in its summary-judgment ruling because it correctly
concluded that no such claims were raised by the pleadings before it.
¶ 21. In 2017, representing himself, petitioner filed a petition for post-conviction relief
seeking to invalidate his 2004, 2005, and 2008 convictions that were predicate convictions for the
2009 habitual-offender enhancement on the ground that in each of those cases, counsel
affirmatively misled him concerning the potential for his convictions to be relied upon to support
a future habitual-offender enhancement.
¶ 22. PCR counsel entered an appearance on petitioner’s behalf and successfully moved
to amend the PCR petition. In the motion to amend, petitioner stated that the challenges to the
three felony convictions were based on (1) failures to comply with the requirements of Rule 11 in
the respective plea colloquies and (2) ineffective assistance of counsel for each conviction.
10 However, the amended PCR petition itself referenced only the Rule 11 plea-colloquy challenges,
and did not mention any ineffective-assistance-of-counsel claims. The trial court subsequently
granted petitioner’s second motion to amend the petition to add the direct challenges to three of
the 2009 convictions on the ground that the trial court failed to expressly ask petitioner how he
pled. The second amended petition added this additional claim based on failure to comply with
Rule 11 in the 2009 plea colloquy. Like the first amended petition, the second amended petition
did not reference any ineffective-assistance-of-counsel claims.
¶ 23. Neither of petitioner’s two counseled motions for summary judgment referenced
any ineffective-assistance-of-counsel claims. In its second summary-judgment ruling, in which
the court rejected petitioner’s challenges to the three 2009 convictions for the charges to which he
did not state, “I plead guilty,” the court noted that petitioner, at the end of his reply memorandum
relating to the State’s motion for summary judgment, had requested an evidentiary hearing on an
ineffective-assistance-of-counsel claim. The court concluded that the second amended PCR
petition contained no such claim, declined to set an evidentiary hearing, and, having resolved all
of the claims in petitioner’s pleadings, entered final judgment.
¶ 24. Petitioner moved to reopen the judgment, arguing that the second amended petition
filed by petitioner’s counsel was not intended to withdraw the first petition in which petitioner
clearly alleged a series of ineffective-assistance-of-counsel claims in connection with the predicate
convictions. In addition, the motion added new allegations that 2009 trial counsel was ineffective
in failing to investigate and challenge the predicate felony convictions supporting the habitual-
offender enhancement, and by failing to present any mitigation evidence or call any witnesses on
behalf of petitioner at sentencing.
¶ 25. The PCR court concluded that the amended PCR petition superseded the pleading
it modified; because the amended petition did not purport to incorporate by reference the
ineffective-assistance-of-counsel claims in petitioner’s initial pro se complaint, those claims were
11 not before the court. The court did not address the claims, first raised in petitioner’s motion for
relief from judgment, that 2009 trial counsel was ineffective in various ways.
¶ 26. The trial court acted well within its discretion in declining to address any ineffective
assistance of counsel claims. The court correctly recognized that an amended pleading generally
supersedes the pleading it modifies. See C. Wright & A. Miller, 6 Fed. Prac. & Proc. Civ. § 1476
(3d ed.) (“Once an amended pleading is interposed, the original pleading no longer performs any
function in the case and any subsequent motion made by an opposing party should be directed at
the amended pleading.” (footnote omitted)); see also Fawzy v. Wauquiez Boats SNC, 873 F.3d
451, 455 (4th Cir. 2017) (“Because a properly filed amended complaint supersedes the original
one and becomes the operative complaint in the case, it renders the original complaint of no
effect.”(quotation omitted)). Nothing in petitioner’s amended petition, nor his second amended
petition, indicated an intent to incorporate or maintain the ineffective-assistance-of-counsel claims
pled in the first uncounseled petition. Moreover, petitioner never pled any ineffective-assistance-
of-counsel claims relating to the 2009 conviction; he raised these claims for the first time in his
motion to reopen the trial court’s final judgment in the case. Under these circumstances, the trial
court did not abuse its discretion in declining to address the various unpled claims.5
Affirmed.
FOR THE COURT:
Associate Justice
5 Petitioner suggests that because the PCR court refused to allow him to litigate his ineffective-assistance-of-counsel claims he may now be foreclosed from raising those claims in a subsequent PCR petition. Whether a future, hypothetical PCR petition raising these claims would be barred as an abuse of the writ is not before us. Cf. In re Carpenter, 2018 VT 91, ¶ 11, 208 Vt. 291, 197 A.3d 865 (identifying recognized examples of “cause” that may overcome defense of abuse of the writ, including “official interference, situations where a factual or legal basis for a claim was unavailable in an earlier proceeding, or ineffective assistance of counsel.”). 12