Saturday, August 23, 2014

How I Learned to Stop Worrying and Imply Compliance

In re Hemingway, 2014 VT 42

By Christopher A. Davis

The Vermont criminal rule governing entry and withdrawal of pleas (V.R.Cr.P 11) routinely gives hope to defendants and ulcers to attorneys, and in this case inspires a 3-2 decision by the SCOV and a passionate debate about what constitutes compliance with the requirements of the rule.

Petitioner (aka defendant) entered into a plea agreement with the State whereby he pled guilty to one felony charge of aggravated assault and five violations of conditions of release in exchange for the dismissal of a litany of other offenses. The trial court explained the rights petitioner would give up by entering the agreement, the sentencing consequences, and petitioner admitted a factual basis for the plea. The court did not inquire of petitioner whether his plea was coerced or induced by promises outside of the plea agreement, but did state that it would find his plea to be knowing and voluntary and gave him an opportunity to speak before entering said plea, which petitioner declined.

All was quiet on the western front (this being Franklin County) until the State filed a violation of probation (VOP) complaint against petitioner. During the VOP hearing, petitioner’s counsel claimed that at the time of the plea agreement, petitioner specifically discussed with the State that he would be allowed to have contact with his wife, and that DOC assured both parties that petitioner would be released after forty days, in time for his daughter’s birthday. What actually happened post-sentencing was that DOC held petitioner beyond forty days on an unrelated conviction and required compliance with a domestic-violence-program condition that he not contact his wife. Petitioner’s counsel raised these points to both defend against the VOP and as a basis to withdraw petitioner’s underlying plea pursuant to a motion filed pro se by petitioner. Trial court found merit in the State’s VOP complaint and revoked petitioner’s probation, sentencing him to the underlying sentence denoted in the plea agreement.

Petitioner filed for post-conviction relief (PCR) after his motion to withdraw pleas was denied as untimely, and eventually moved for summary judgment on the basis that the trial court did not expressly ask him whether any threats or promises had been made beyond the written agreement, and that rendered the plea colloquy inadequate as a matter of law (as the rule requires the court to inquire of a defendant whether the plea “is voluntary and not the result of force or threats or of promises apart from a plea agreement”). Petitioner asserted that the absence of a force-threats-or-promises inquiry was a fundamental flaw in the plea colloquy. The State moved for cross-summary judgment on the basis of substantial compliance with the rule, petitioner’s own confirmation of voluntariness of the plea, and the absence of a claim of prejudice by petitioner.

The PCR court agreed with Petitioner based on a prior Vermont case. There's a line of direct appeal cases holding Rule 11 violations to be plain error regardless of prejudice. In this case, the violation was the failure by the trial court to explicitly inquire into voluntariness. The State appealed, and here we are. If you’re still here. I hope you’re still here.

The SCOV ultimately rejects the PCR court’s decision, remanding for the PCR court to consider the other claims preserved by the petitioner. The SCOV views the facts in the light most favorable to the non-moving party (the State) because it’s petitioner’s successful request for summary judgment on appeal, also noting that in a PCR case, the burden is on the petitioner to demonstrate prejudice. This, in the eyes of the majority, is consistent with the “substantial compliance over literal compliance” interpretation of Rule 11. The majority distinguishes the prior case by noting that a “plain error” standard was only employed because there was literally no record below to review to ascertain whether the defendant entered a knowing and voluntary plea, and the absolute noncompliance with Rule 11 warranted the finding of prejudice per se.

Looking at the totality of the circumstances (including circumstantial evidence culled from the record developed in the six months between sentencing and the filing of the PCR), the SCOV finds that there is evidence of voluntariness in that the parties agreed that all other elements of Rule 11 were met; the agreement was the result of discussions between the State and petitioner himself; petitioner was represented by competent counsel; the court paused briefly before entering a finding of voluntariness to allow petitioner to voice concerns if any existed; and petitioner subsequently filed to enforce the terms of the plea agreement after sentencing.

Finally, the majority concludes that it would be “premature” to make any determinations about what promises may or may not have been made to petitioner, because petitioner made no claim of prejudice (relying instead on the legal argumentadvanced without an evidentiary hearingthat the absence of direct inquiry into threats/coercion/promises was a fundamental flaw in the plea colloquy). Without a claim and finding of prejudice, the majority concludes, no substantial right of petitioner’s was affected.

The dissent offers three reasons why you just wasted your time reading the last three paragraphs:

First, the majority’s expansive Rule 11 analysis regarding totality of circumstances and substantial compliance is unnecessary because the applicable SCOTUS opinion held that much like waiver of counsel, the constitutional rights waived by a plea require a record that the waiver is knowing and voluntary, which can only be established by direct inquiry or other evidence supporting such a record. Because the trial court in this case made the finding of a knowing and voluntary plea without any support for such a finding, the majority’s opinion is inconsistent, and we can stop there and all head home for the day.

Second, not only is the majority’s analysis unnecessary, it’s also wrong. The knowing and voluntary elements of a plea respectively were incorporated into Vermont’s Rule 11 in large part to implement the controlling SCOTUS opinion. As such, the “free from force, or threats, or promises” language is an integral part of a procedure with constitutional implications for a defendant, and direct inquiry into the nature of voluntariness is a necessary part of “substantial compliance.”

The dissent goes on to say that the record upon which the majority finds substantial compliance with the rule is flawed. The rule is designed to affirmatively inform defendants of their rights and inquire into areas where defendants may not understand or appreciate potential threats or inducements to enter the agreement. The in-court judicial inquiry is the required means of accomplishing those objectives. Therefore, petitioner’s failure to raise concerns on his own does not support the conclusion that strict compliance with the rule is unnecessary. Furthermore, the majority “distorts” the prior Vermont case, which makes clear that ensuring voluntariness of a plea is a core concern of the rule. For that reason, and because in other cases the SCOV has reversed judgments and pleas for violations of other subsections alone, the fact of compliance in this case with other elements of the rule doesn’t cure noncompliance with the voluntariness subsection. It ultimately doesn’t matter if we’re talking about direct appeal or PCR decisions because either way the question is one of substantial compliance with core components of Rule 11. Also, the majority’s focus on the fact that petitioner was represented by counsel is an evasion of the requirements of the rule.

Third, the chief facts relied upon by the majority to find that petitioner claimed neither actual coercion nor prejudice but only noncompliancenamely, that he negotiated his own agreement and later attempted to enforce itactually support the argument for a proper voluntariness inquiry. The majority is wrong to fixate on whether petitioner’s claims regarding the alleged promises are plea agreement issues (pursuant to his motion to withdraw pleas) or “separate promises” issues (pursuant to the PCR), because regardless of whether the alleged promises are viewed as incorporated into the plea agreement (and the dissent sees this topic as a misdirection), the SCOV should ultimately focus not on whether an enforceable agreement between petitioner and the State was breached, but on whether petitioner believed he had enforceable promises, which he clearly did. Had the trial court engaged in the direct inquiry with petitioner regarding voluntariness of his plea, petitioner’s beliefs about the promises (reasonable or not) would’ve likely been identified and addressed in the colloquy.

In the eyes of the dissent, the majority’s decision converts Rule 11(d) into a “paper right, with no possibility of a remedy,” in that any actual demonstration of prejudice will necessarily provide a petitioner with grounds to set aside his plea with or without a violation of Rule 11(d).

So sayeth each contingent of the High Court.

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