Just the Facts, Ma’am

To, too, two. 

In re Gabree, 2017 VT 84

By Elizabeth Kruska

Basic facts: Alexis Gabree was charged with two counts of grossly negligent operation with death resulting when she drove her car seventeen miles per hour over the speed limit, nine feet left of the centerline, and with eleven different drugs in her bloodstream. When she did this, sadly, she hit another car and two people in that car died.

She was charged, and ultimately pled guilty to two counts of grossly negligent operation with death resulting. She negotiated a resolution where she would be sentenced to 6-15 years to serve and also agreed she could not drive a vehicle without express permission of the court.

When someone pleads guilty to a charge the court is required to engage in a verbal colloquy in order to make sure the court is satisfied the person understands what they’re doing. In Vermont we often refer to this as a “Rule 11” because the proceeding tracks Vermont Rule of Criminal Procedure 11. And because I can’t say how many times I love the Sixth Amendment, I’ll just add that much of this colloquy is basically a recitation of the rights guaranteed to a criminal defendant by the Sixth Amendment. 

A big part of this is that the court has to be satisfied that a defendant is giving up his or her constitutional rights knowingly and voluntarily. And the court also has to be satisfied that a defendant agrees there are sufficient facts that fit the crime. If the facts don’t fit . . . well, you know the rest.

The way this happens is that someone—whether it’s the judge, or the prosecutor, or even the defendant him or herself—recites some facts from the case into the record, and the defendant is supposed to affirm whether he or she agrees that those are the true facts to support the crime. The whole point of doing this is to make sure everyone in the room is having the same conversation and that the defendant is voluntarily giving up her constitutional rights by entering a guilty plea.

What happened here was that there was a recitation of some facts. Because of the way the colloquy unfolded, the defendant said she understood those facts, but at no point did she ever actually admit or agree to those facts. She was sentenced to the agreed-upon sentence.

She subsequently filed a motion for post-conviction relief (PCR) based on the insufficient Rule 11 colloquy. The State filed a motion for summary judgment, saying there was no genuine issue of material fact, and that the State was entitled to a judgment as a matter of law. This was granted and the defendant appealed.

SCOV reverses and remands, and says that the defendant would be allowed to withdraw her plea. Why? Because SCOV agrees with her that the plea colloquy was insufficient in that she never actually admitted the facts.

Justice Eaton, joined by the Chief Justice, concurs, although the concurrence reads a little bit like a kid being made to eat broccoli. The current state of the law says that the defendant must personally agree to the facts on the record. But the concurrence points out that during the colloquy the facts were really thoroughly explained and twice the defendant’s lawyer said they understood and agreed by the defendant.

At the time this particular change of plea happened, under Vermont’s case law, a defense lawyer was allowed to stipulate to facts on behalf of the defendant during this sort of hearing. If there was substantial compliance with the rule, a plea was fine. A new case, decided after this particular change of plea happened, triggered a change in the law.

Justice Eaton basically says that under the current status of the law that this is the right result but that makes it clear that he doesn’t especially love the status of the law.