Sunday, August 24, 2014

Cursory Colloquy Can't Cut It

In re Manosh, 2014 VT 95

By Andrew Delaney

Who really knows how these cases are going to end up? Just recently, the SCOV issued a 3-2 decision that seemed to imply that “substantial compliance” with the Vermont criminal rule governing entry and withdrawal of pleas (V.R.Cr.P 11) was good enough.

Not so in this case. Back in the early ‘90s, Mr. Manosh pled no contest to a first-offense DUI. He signed a waiver form that for our purposes here, essentially complies with the Rule 11 requirements. The trial court asked him if he knew what had been said and what was in the documents. He said yes. When the court asked if he had any other questions he said no. That was about the size of it—the court didn’t get into the burden-of-proof thing, the right-to-a-jury-trial thing, or much else. It was basically “Got it? Any questions?”

Flash forward to 2010, when Mr. Manosh gets convicted of his third-offense DUI. He filed a post-conviction-relief (PCR) petition “arguing that the 1992 sentencing court failed to comply with Rule 11 because it did not ensure that the plea was voluntary, or personally address petitioner concerning his rights to plead not guilty, to a trial by jury, to confront witnesses against him, and against self-incrimination.” The trial court reviewed the transcript, and was kind of like: “By Jove—petitioner is right!” So, the trial court vacated that conviction.

The State appeals. It argues, more or less, that the written waiver should’ve been enough and that the defendant doesn’t even need to appear when he or she signs the waiver form on a misdemeanor plea.

One big problem with the State’s argument—and Mr. Manosh is quick to point it out—is that he appeared personally in court.

There’s an older case that the State claims controls and Mr. Manosh distinguishes, in which the SCOV appeared to rely heavily on a written waiver. We’ll get to that a little later.

There are no disputed facts (according to the majority), so the SCOV’s review is de novo.

A plea has to be knowing and voluntary. A trial court has to address a defendant personally and in open court. There is a Rule-43-based exception in misdemeanors when there’s a written waiver and plea agreement.

The majority frames this case as a two-part question. First, whether the rule and written waiver in this case excuse Rule 11 compliance; second, if no exception applies, then whether the colloquy (fancy-lawyer word for a formal conversation between the defendant and the court) substantially complied with Rule 11.

So, Rule 43, in part, allows defendants in misdemeanor cases to enter pleas without appearing in court, and gives the court discretion to allow it. Otherwise, the rule speaks to the requirement that defendants be present at important stages of litigation. The majority notes that petitioner personally appeared in court to enter his plea, even though he presumably might have been able to not appear. So, under the circumstances, the majority opines “we cannot conclude that petitioner waived his presence” under the rule.

The State argues that signing the waiver is a waiver of the required Rule 11 colloquy. The majority doesn’t buy it. Just because the rule allows some wiggle room doesn’t mean that it applies when a defendant personally appears in court—even if he has signed a waiver form. It only applies when a defendant waives his (or her) presence in court.

The majority notes the constitutional implication here, reasoning that the trial courts could just dispense with Rule 11’s requirements by having a defendant sign a form if the SCOV follows the State’s reasoning. The majority isn’t about to do that.

The majority also holds that the colloquy didn’t substantially comply with Rule 11. It distinguishes that recent case by noting that case involved “an otherwise-exemplary plea colloquy conducted by a sentencing court that failed to ask petitioner specifically whether his plea was voluntary and free of undisclosed coercion or promises.”

The majority also notes, “On the other hand, we have readily set aside convictions for wholesale Rule 11 noncompliance, even in the absence of a finding of prejudice.” Because in this case, the plea colloquy was pretty much a get-it-got-it-good exercise, the majority affirms the trial court’s vacation of petitioner’s conviction.

Now, the State has a pretty good argument that this case is extremely similar to an older case as mentioned above (to be fair, it’s only about 15-years old). Oh, and it is. But the majority is not interested in following that line of reasoning and to the extent that case is inconsistent with this opinion, it gets overruled.

Rule 11 covers a lot of ground. The majority reasons “A court cannot short-circuit the express requirement of personally addressing a defendant concerning these matters by relying on a written form signed by the defendant.”

Justice Skoglund dissents. The dissent reasons, “If the waiver form is valid when a defendant is not present before the court, how can it be invalid if the defendant is present in the courtroom and the judge supplements the information on the form by asking the defendant if he understood the forms he signed and if he has any questions?” The majority’s reasoning, in the dissent’s view lacks any discernible logic.

The dissent notes that the trial court’s decision didn’t mention or consider the waiver form and that there was no analysis of whether the form complied with the requirements of Rule 11.

The dissent also takes issue with the PCR court’s decision itself as it gets into matters that weren’t even within the scope of the matters being litigated—like whether or not the police gave defendant an opportunity to speak to an attorney following his arrest. The dissent basically says, “Huh?”

The dissent concludes, “With this decision, the waiver form . . . is worthless and fails to substitute for a full Rule 11 colloquy if the defendant enters the courtroom. Only if he stays away from the courtroom can the waiver form fulfill its function and be relied upon by the court.”

That may very well be true. Fun stuff, boys and girls.  Fun stuff.

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