No Cigar

No cigar here either

In re Bridger, 2017 VT 79

By Andrew Delaney

Rule 11 in the criminal world deals with plea colloquies. If you don’t know what a colloquy is, it’s a lawyer-job-security word for “conversation.” The conversation is between a defendant and a judge usually, though sometimes the prosecutor chimes in to say what the government would expect to prove if the case went to trial. The important thing to know here is that Rule 11 requires the trial court to satisfy itself that there is a factual basis for any plea.

Mr. Bridger pled (or “pleaded” if you want to write like nobody talks) guilty to sixteen counts of burglary (in case you want to know, SCOV uses “pled” as it should). There were a couple other burglary charges brought in for sentencing from other counties. Petitioner had an oral plea colloquy and signed a written waiver of his rights and restitution orders. He got six to twenty years with concurrent lesser sentences on the transferred charges.

After five years or so in jail, Mr. Bridger filed a post-conviction relief (PCR) petition. As we know, Rule 11 requires a factual basis for a plea. Mr. Bridger moved for summary judgment arguing that he didn’t admit any facts and the plea colloquy was “unlawfully sparse.” The State, of course, opposed and said it was entitled to summary judgment.

The PCR court went for the State, reasoning that when the trial court asked Mr. Bridger whether the affidavits provided a factual basis for each of the elements of the charges, he said yes, and the court found a factual basis, that was enough.

Mr. Bridger appeals. He argues that him saying “Yes” during the plea is ambiguous and not necessarily an admission to anything.

The SCOV majority begins by noting that what we’re looking for to establish Rule 11 compliance is “an understanding by the defendant that the conduct admitted violates the law as explained to him by the court.” Without that, the kick misses the metaphorical goalposts and the plea’s no good.

There’s a whole bunch of legal history here. And while it’s fascinating in its way, we’re going to skip it. Nobody comes here for the nuanced, in-depth analysis we never do here.

What we can say is that in the majority's view, a defendant has to affirmatively acknowledge the factual basis. It needs to be a little more affirmative than what happened here. And while the police affidavit or affidavits can provide the facts, “the defendant must subsequently admit to these facts in the plea colloquy to demonstrate that there is a sufficient factual basis.”

The majority acknowledges that two cases (Morrissette and Cleary) made things confusing by injecting the phrase “substantial compliance” into the Rule 11 slurry. The majority notes that it overruled Morrisette in this case (summarized by yours truly over four years ago).

The majority sticks a fork in “substantial compliance” when it comes to admitting-the-factual-basis (Rule 11(f)) claims. The majority reasons that “[t]here are good reasons for our continued adherence to this interpretation of Rule 11(f).” The inquiry is tied to voluntariness. So the defendant needs to understand that there are essential elements and has to admit to those elements so that the record can establish true voluntariness.

The majority also reasons that the factual-basis inquiry “fits” with the other sections of the rule. It’s the part that helps prevent “false guilty pleas in situations where the defendant does not completely understand the elements of the charge or realize that he or she has a valid defense.” The inquiry is designed to reveal any confusion or misunderstanding and prevent a false guilty plea.

Here, there wasn’t a compliant factual inquiry, and it gets sent back for judgment in favor of Mr. Bridger to withdraw his 2010 guilty plea.

Justice Dooley concurs. He opines: “There is no criminal procedural rule more important than Rule 11. Over ninety-five percent of all criminal cases that reach court judgment are resolved by a plea of guilty, usually as a result of some kind of plea bargain.” He continues: “Unlike the vast majority of procedural errors, a deviation from the requirements of Rule 11 can be the subject of a collateral attack on the adjudication of guilt, often a collateral attack that is commenced long after the defendant has pleaded guilty.”

And so, it’s “critical that the requirements of Rule 11 be crystal clear and predictable so they can be implemented without error. It is equally critical, however, that pleas of guilty be voluntary, with full knowledge and understanding of a defendant's rights and the consequences of the plea and without improper influences and considerations.”

In Justice Dooley’s view, both the majority opinion and the dissent cite cases that fully support their positions. And there’s never been a reconciliation. The law needs to be cleared up and the majority does that a little when it explicitly overrules conflicting precedent (getting rid of “substantial compliance” here).

Vermont goes a little further than its federal counterpart on Rule 11 compliance without really acknowledging doing so. Despite this, Justice Dooley joins the majority’s holding. A defendant should never plead guilty to a crime when the defendant cannot acknowledge that he or she committed the elements of the crime or believes that he or she has a valid affirmative defense.

Justice Eaton—joined by Chief Justice Reiber—dissents.

The dissent notes: “The record shows that nearly a decade ago petitioner confessed, in detail, to committing the charged crimes; he affirmed in court that those confessions, along with other evidence, provided a factual basis for his guilty pleas. He signed a written waiver to this effect. He expressed remorse for his crimes. The court dismissed seventeen additional charges against petitioner based on his guilty pleas.” The dissent reasons that the guilty plea would stand under federal law and points out that the Vermont’s rule is nearly identical to its federal counterpart.

And, again, there’s a lot of equally fascinating case law that we’re just going to gloss over in the dissent. The dissent cites a treatise for the proposition: “Neither Rule 11 nor the case law requires an on-the-record colloquy before the judge makes the factual basis determination. A court may instead rely on its examination of relevant materials in the record.” Here, there was plenty in the record to establish the factual basis. We don’t need the defendant to repeat it in open court for it to stick in the dissent’s view.

The dissent reasons that SCOV’s “Rule 11(f) cases since Dunham have been inconsistent and their inconsistency has led to confusion.” And the supposed basis for requiring a personal colloquy with a defendant to establish a factual basis is federal case law. But that’s not how it works on the federal side. And when we depart from an established rule, there should be a rationale. The dissent sees no proper rationale here.

And while the dissent agrees that “substantial compliance” is inapplicable when it comes to a factual basis, there’s “no set method by which the trial court must satisfy itself that there is a factual basis for the charge.” Here, as noted above, there was a confession, affidavits, and a written waiver in the record. That should be enough.

The dissent also points out the unfairness to the State in this situation. A defendant pleads and a bunch of charges are dismissed. Years later, the defendant decides to challenge the plea colloquy and the State’s bargain with the defendant gets torpedoed while the defendant faces only the charges he pled guilty to.

Because there was enough in the record to establish a factual basis—a duty which ultimately falls to the trial court—the dissent would affirm the trial court’s grant of summary judgment to the State.

There are 17 footnotes in this opinion. And plenty of law. If you’re ever dealing with a Rule 11(f) issue, this would be the case to print and study.