Monday, August 17, 2015

Fair Enough?

In re Brown, 2015 VT 107

By Andrew Delaney

In civil procedure a Rule 11 violation generally means that a lawyer filed something of questionable (if any) merit. In criminal law, it generally means that the trial court screwed up a plea colloquy (a fancy-lawyer way to say “conversation”). So, both rules deal with screw-ups, though in vastly different areas. Civil procedure is a really, really important class in law school most lawyers-to-be sleep right through.

This case falls into the intersection of criminal and civil law, known as post-conviction-relief (PCR) land. It really has little to do with civil Rule 11, but it does have a lot to do with criminal Rule 11 and civil Rule 56. I know those aren’t proper citations and my law review brethren are probably losing their proverbial you-know-what right now, but I’m trying to make this easy to understand.

In 2003, Mr. Brown pled guilty to some heavy-duty offenses, including aggravated sexual assault of a minor and lewd and lascivious conduct with a minor. He agreed to “a five-to-fifteen-year split sentence, with two years to serve, as well as the imposition of sex-offender probation conditions.” The court accepted the guilty plea but held off on sentencing until a presentencing investigation (PSI) was completed.

While the PSI was pending, Mr. Brown’s attorney moved to withdraw because Mr. Brown didn’t trust him. Mr. Brown told the court that the attorney didn’t return phone calls, but didn’t get into other reasons. The court denied the motion and told Mr. Brown and his attorney to kiss and make up. When Mr. Brown’s attorney tried to withdraw at the sentencing hearing, the trial judge told Mr. Brown that he didn’t make a good faith effort to reconcile, so “Nope.”

The PSI recommended a different sentence (three-to-twenty straight sentence), and recommended additional conditions (no pornography, no photos of the victim or anyone under sixteen, and random searches and seizures of prohibited material). The State acknowledged that the change in conditions would potentially allow Mr. Brown to withdraw his plea.

Mr. Brown’s lawyer said Mr. Brown would be cool with the new conditions, so long as the “sentence otherwise conformed to the original plea agreement.” There was a little back-and-forth confirming of the changes between the judge and Mr. Brown—Mr. Brown was not cool with a PO-can-seize-booze aspect of the search-and-seizure condition—and eventually, they went forward with the sentencing. Mr. Brown agreed that counseling was expected and that he could serve the full fifteen years if he didn’t complete it.

Eventually, with a little more back-and-forth, the trial court sentenced Mr. Brown to the five-to-fifteen split agreed in the plea agreement, adding the two conditions and getting rid of the alcohol condition. Still with me? Good.

So, flash forward a decade or so. Mr. Brown filed a PCR complaint on the basis that the trial judge never explicitly informed him that he had a right to withdraw his plea when the court imposed the additional probation conditions. Both sides moved for summary judgment (civil Rule 56), and the PCR court found in favor of the State. The PCR court reasoned that the sentencing didn’t change the terms of the plea agreement and the sentencing was consistent with the plea agreement.

Mr. Brown appeals. “The sole issue on appeal is whether the sentencing court violated Rule 11(e)(4) by failing to explicitly inform petitioner of his right to withdraw from his plea agreement after the court imposed additional probation conditions.”

The SCOV reviews summary judgment decisions under the same standard as—but with no deference to—the trial court. Facts get viewed in the nonmoving party’s favor and then, if there ain’t no genuine factual disputes left, the court asks whether one o’ the parties is entitled to judgment as a matter of law. With a PCR, the petitioner has to show it’s more likely than not that there was at least one fundamental error that makes his conviction defective.

Rule 11 requires the trial court to tell a defendant that he can do a takes-backsies on his plea if the court deviates from the sentencing agreement.

Mr. Brown’s argument isn’t that the court failed to get his permission to impose the new conditions, but rather that the court failed to say something like, “If you want to scrap the whole thing, you have a right to do that.” That’s a quote right out of the opinion. You might suspect it’s one of my make-‘em-ups, but it’s not.

The SCOV isn’t convinced by Mr. Brown’s argument. In the SCOV’s view, Mr. Brown’s position is too ritualistic. Substantial compliance, not strict compliance, is what’s required. Though this is new territory for the SCOV, it’s not about to flip this plea when there really was substantial compliance with the rule—that’s what’s required for fair and just process.

The SCOV notes that Mr. Brown and the State take very different views of the same facts. Mr. Brown sees it as a rejection of his plea deal with the court cheating him out of his you-can-get-out-of-the-deal-if-you-don’t-like-it-now notification; the State sees the sentencing proceeding as a bit of negotiation and amending while retaining the original split-to-serve sentence. The SCOV—while noting that the court could’ve been more specific in letting Mr. Brown know his rights—views it more in line with the State’s view. The SCOV concludes that the trial court’s substantial compliance with Rule 11 is enough in this case.

One of the things going on here—though not explicitly stated—is that the sentence is essentially the same sentence that Mr. Brown agreed to. And though there are some additional conditions, there’s no “surprise” jail time or off-the-reservation changes to the sentence. In the cases where the SCOV has found violations of Rule 11, there have been things like additional or actual jail time imposed and no remedy. So this case, the SCOV opines, is an effective amendment of the plea, with substantial Rule 11 compliance.

Mr. Brown’s last-gasp argument is that his fractious relationship with his attorney meant that he didn’t get a proper explanation of the PSI recommendations. The SCOV doesn’t go for it. The SCOV reasons that the court inquired of counsel during the colloquy and there were sufficient indications that Mr. Brown understood and didn’t object to any of the new conditions. Thus, the SCOV can’t see that the relationship between Mr. Brown and his attorney caused misunderstandings in this regard.

And that does it. The SCOV reasons that the PCR court got it right on summary judgment and affirms.

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