State v. Mitchell Bowen
State v. Mitchell Bowen
Opinion
¶ 1. Defendant appeals his conviction for sexual assault following his guilty plea, arguing that during the plea colloquy the trial court failed to comply with Vermont Rule of Criminal Procedure 11(f) and did not establish a factual basis for the charge. We hold that the standard for reviewing Rule 11(f) challenges in direct-appeal cases is the same as that used for challenges brought in post-conviction relief (PCR) proceedings. Under that standard, we conclude that the colloquy in this case did not comply with the requirements of Rule 11(f), and reverse and remand.
¶ 2. In October 2013, defendant was charged with one count of sexual assault on a minor pursuant to 13 V.S.A. § 3253(c). The affidavit submitted in support of the information recited that defendant had engaged in unwanted sex with a thirteen-year-old minor on the playground of a school. Defendant entered a plea agreement with the State whereby he *362 agreed to plead guilty and the State agreed to a capped sentence of two-to-fifteen years. Defendant signed a plea agreement and waiver-of-rights form, agreeing that he had read the affidavit of probable cause and that he agreed there was a factual basis for his plea. At the change-of-plea hearing, the colloquy between the court and defendant included the following exchanges:
THE COURT: The charge is that during August of 2013, you engaged in a sexual act with a child under the age of sixteen and at the time you were not married and the act was consensual-except where you were married to each other and the act is consensual.
The maximum punishment is twenty years, a fine of not more than 10,000 dollars, or both. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
....
THE COURT: Do you agree the affidavit of Officer Notte provides facts to establish the elements of the sexual assault charge to which you're entering a plea?
THE DEFENDANT: Yes.
THE COURT: And do you agree that you're pleading guilty because you are, in fact, guilty of this charge?
THE DEFENDANT: Yes.
¶ 3. The court entered defendant's guilty plea, concluding that it was made knowingly and voluntarily. Following a contested hearing, the court sentenced defendant to two-to-eight years. Defendant appealed, challenging the sufficiency of the plea.
¶ 4. Defendant's appeal was placed on waiting status pending resolution of
In re Bridger
,
¶ 5. The parties in this appeal were granted permission to file supplemental briefing following the decision in Bridger . Defendant argues that the plea colloquy did not conform to Rule 11(f), which requires that prior to accepting a guilty plea the court must make "inquiry as shall satisfy it that there is a factual basis for the plea." V.R.Cr.P. 11(f). Defendant argues that, like in Bridger , the colloquy failed to establish a factual basis for the plea because there was no recitation on the record of the facts underlying the charge and no admission by defendant of those facts. The State agrees that under Bridger the colloquy in this case was insufficient, but instead argues that there was no plain error because the law was undecided at the time of defendant's plea and the trial court complied with the law as it existed at that time. *
*363
¶ 6. We begin by recognizing that the holding of
Bridger
applies to this case in which a direct appeal was pending at the time it issued. See
State v. Shattuck
,
¶ 7. To understand this, it is important to recognize that this Court has allowed challenges to the sufficiency of a Rule 11 colloquy to be raised either on direct appeal or in a PCR proceeding. Over time, we described the standard of review in each type of challenge differently. In PCR proceedings, usually a petitioner "must show, by a preponderance of the evidence, that fundamental errors rendered his conviction defective."
In re Combs
,
¶ 8. The standard for challenges brought through direct review was more stringent. In
State v. Cleary
, this Court held that when a defendant fails to object to Rule 11 proceedings in the trial court and challenges the sufficiency of the colloquy on direct appeal, the standard of review on appeal is plain error.
State v. Cleary
,
¶ 9.
Bridger
cited indiscriminately to both direct-review and PCR appeals. It rejected "substantial compliance" as a means for evaluating the sufficiency of the plea under Rule 11(f) for both types of cases, explicitly overruling
Cleary
, a direct-review case.
Bridger
,
¶ 10. Given that substantial compliance is not applicable in either direct-review or PCR appeals for Rule 11(f) challenges, there remains little to separate the two standards. Moreover, we see little reason to apply a different standard of review to challenges brought on direct review instead of through a PCR proceeding. Having *364 a more stringent standard in direct-review cases would provide an illogical incentive to not raise Rule 11(f) issues on direct appeal. Therefore, we hold that the standard for reviewing Rule 11(f) challenges is the same in a direct appeal as in a PCR proceeding.
¶ 11. Having so concluded, we hold that the plea colloquy in this case did not satisfy Rule 11(f). The facts in this case are strikingly similar to those in Bridger . The court read defendant the elements of the crime he was charged with and defendant agreed that the affidavits established a factual basis, but there was no recitation of the facts underlying the charge or admission by defendant of those facts. As we explained in Bridger , this is insufficient to comply with Rule 11(f) and to demonstrate that defendant understood the facts underlying the crime and admitted that they were true.
¶ 12. The State acknowledges that under Bridger the colloquy in this case did not comply with Rule 11(f), but nonetheless argues that there was no plain error because the law at the time of the colloquy allowed the procedures used by the trial court. We are not persuaded by this argument, which is essentially that we should not apply Bridger retroactively to the colloquy in this case. Because this is a direct appeal, Bridger applies to this case and under its standards, the colloquy was insufficient.
Reversed and remanded for further proceedings consistent with this decision .
On appeal, the State also urges this Court to overrule
Bridger
. Insofar as the State has not presented any reason not before the Court at the time
Bridger
was decided, we adhere to stare decisis and decline the invitation. See
O'Connor v. City of Rutland
,
Reference
- Full Case Name
- STATE of Vermont v. Mitchell BOWEN
- Cited By
- 5 cases
- Status
- Published