Tuesday, August 12, 2014

This Is Really Important

In re Stocks, 2014 VT 27

By Elizabeth Kruska

Criminal court practitioners: listen up! This is important. Make sure you are paying attention to the court’s Rule 11 colloquy very carefully when your clients enter guilty or nolo contendre pleas. I mean, obviously we all listen, and we all pay attention when the judge is addressing our clients, but if important parts of the colloquy are missed, it can lead to a post-conviction relief (PCR) case.

The court must ask the defendant if he or she agrees with the underlying factual basis to support the charges. If the defendant doesn’t acknowledge that, the colloquy is insufficient.

Here’s how this shook out in Mr. Stocks’s case. Mr. Stocks pled guilty to several charges in June of 2009. Two years later he filed a PCR on the basis that the Rule 11 colloquy was flawed because the court did not explain the elements of one of the charges. He also argued in his PCR filing that there was no admission by him that the facts underlying the charges were true. The State filed for summary judgment, which was granted. Mr. Stocks appealed, and that was reversed.

Here’s what happened. When Mr. Stocks entered his pleas, the judge read the charges to him and asked him if he understood the charges. He said yes. Then the judge explained the maximum possible penalties, and he said he understood that, too. Then the judge asked for his pleas, to which he said, “guilty.” From the opinion it doesn’t look like there was any recitation of a factual basis or an acknowledgement by Mr. Stocks that the facts contained in the affidavit were true (or, at the very least, could be proven beyond a reasonable doubt).

SCOV takes a look at Vermont Rule of Criminal Procedure 11 and finds the part indicating that the court should not accept a guilty plea without inquiring about the factual basis and making a finding that, in fact, there is a factual basis for the plea.

SCOV says there’s no script or formula to determine the factual basis. A recitation of facts by the prosecutor and an acknowledgement of the facts by the defendant would do the trick. But there’s got to be some kind of specific inquiry into the factual basis for the plea.

It’s not enough for a defendant to say he or she knows and understands the charges. Understanding the basis and admitting to the underlying facts are two totally different things.

The case was reversed and Mr. Stocks was allowed to withdraw his plea.

I don’t know about everyone else, but the same day this case came out I noticed criminal court judges changing their colloquy practice to make sure the defendant said that he or she agreed to the facts. Make sure to listen carefully to the colloquy to make sure all the important points are met.

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