By Andrew Delaney
A plea colloquy has to include a factual basis for the plea. This is important. We’ve talked about it before.
Just what is a plea colloquy? Well, if you break it down, plea means what it means and colloquy is a fancypants word for conversation. There are formal requirements to the “plea conversation.” Maybe that’s why it’s called a colloquy—because colloquy sounds really formal. Or maybe it’s one of those lawyer-job-security things. Who knows? Heretofore and hereon, let us commence with our recitation of the proceedings in the instant matter henceforth and forthwith posthaste.
Mr. Manning filed a post-conviction-relief (PCR) petition after his sentencing on a DUI4, enhanced by his DUI3. He argued that the trial court that took his DUI3 plea didn’t make sure that his plea was voluntary and supported by a factual basis. The trial court ruled in favor of the State and said the plea was good.
The SCOV disagrees. The SCOV concludes that the DUI3 plea was inadequate but because there’s no provision to vacate the DUI3, the proper remedy is resentencing on the DUI4. So the SCOV kicks it back to the trial court for a resentencing hearing.
Mr. Manning was convicted on DUI3 in April 2001. In February 2014, he was charged with DUI4, and he filed a PCR petition seeking to vacate his DUI3 conviction on the factual-basis-and-voluntariness points.
In a little procedural shuffle, the State moved to dismiss for lack of jurisdiction, and the trial court held the PCR petition in abeyance until after Mr. Manning was found guilty of the DUI4. Then the parties were like, “Okay, let’s do this” as to the PCR.
A record was cobbled together for the April 2001 change-of-plea hearing. There’s a pretty entertaining transcript where the trial court and Mr. Manning discuss the backroads in Monkton, Mr. Manning’s one-car accident, Mr. Manning’s desire to go back and retrieve a rifle, Mr. Manning’s “hot language,” and his beer and cigarette preferences. It’s not quite as graphic as this [NSFW] conversation between a judge and a defendant, but it’s still entertaining.
The plea court then ran through how a trial works, the presumption of innocence, that Mr. Manning could call witnesses, the right to trial and appeal, and how Mr. Manning was giving up a very valuable right by pleading guilty.
The SCOV then highlights another section of the transcript where the court and Mr. Manning discuss taking responsibility for an alcohol problem and that the judge couldn’t predict what would happen. The court accepted Mr. Manning’s guilty plea asking “And it's a guilty plea,” to which Mr. Manning responded “Yes, sir.” The judge asked Mr. Manning whether he had any questions and Mr. Manning said there were none he could think of. Nobody read the charges, reviewed the elements, asked Mr. Manning to admit any facts, or asked him about the voluntariness of his plea.
And there lies the rub. The PCR court said there was a sufficient factual basis because Mr. Manning had talked about the road where the DUI3 allegedly happened and he’d admitted to an drinking problem, was not himself after the accident, and used “hot language.” All this, taken together, to the PCR court, spelled D-U-I.
On the voluntariness point, the PCR court reasoned that Mr. Manning (1) had a lawyer; (2) his plea was followed by a lengthy discussion of the consequences of the plea agreement; (3) the judge asked was whether he was clear in his understanding; (4) he replied, “Yes, sir,” when asked if he was pleading guilty; and (5) he said no when he was asked if he had any questions. Given all this, the PCR court reasoned that the plea met the plea requirements (set out in Vermont Rule of Criminal Procedure 11 just in case you were dying for a citation).
Then the PCR court “in an apparent alternate holding” found that the PCR was untimely ‘cause it was a 13-year-old conviction, a DUI3 is a relatively straightforward offense; and Mr. Manning had the same lawyer for the change of plea and the PCR. It threw in a citation to an unpublished delay-in-withdrawing-a-plea case for good measure.
No facts are in dispute here and the SCOV does whatever strikes its fancy on the legal rulings.
The SCOV first points out that a court taking a plea, before accepting the plea, is supposed to determine whether there’s a factual basis for it. The SCOV points to this case (note our title: This is Really Important) for the proposition that going over the facts ain’t enough—you’ve got to get an admission to those facts from the defendant. Can you see where this is going?
Yeah. So the plea court didn’t quite do that here—not even close. In fact, neither the State nor the court “even stated on the record the elements of the crime to which petitioner pled guilty and the factual allegations on which the State's charges were based.” The SCOV can’t make the inferences the PCR court did. During the colloquy, it’s not established that Mr. Manning was driving on the road in question. Nor was it established that Mr. Manning was under the influence of alcohol.
The SCOV concludes that the plea colloquy did not establish a factual basis for the plea. Mr. Manning wants the SCOV to vacate his DUI3 conviction but the SCOV can’t do that. What it can do—and does—is send the whole case back vacating the sentence for the DUI4, for “resentencing on that conviction with no enhancement on account of the prior DUI-3 conviction.”
The SCOV notes that the remedy here is not to make the conviction go away, but to relieve the petitioner from any enhancement caused by the previous defective conviction. And so, the SCOV vacates the 2014 sentencing and sends it back for resentencing.
Justice Dooley concurs and dissents. It’s short and sweet. While he notes that the enhancement consequences are the most important effects here, the Court has ruled the conviction invalid. Accordingly, it does not make sense to keep the conviction in place.