In re Kenneth Barber, Jr., Theodore C. Smith, Jr., Danielle M. Rousseau, John Burke
In re Kenneth Barber, Jr., Theodore C. Smith, Jr., Danielle M. Rousseau, John Burke
Opinion
*368
¶ 1. This case raises the question of whether this Court's decision in
In re Bridger
,
¶ 2. The four petitioners in these consolidated appeals all pled guilty to criminal offenses between 2005 and 2013. After the appeal period had passed, they initiated collateral challenges to their convictions by filing post-conviction relief (PCR) petitions and argued that the plea colloquies in their criminal cases did not comply with Rule 11(f). The PCR courts denied their petitions and all petitioners appealed. While the appeals of those petitions were pending, this Court decided
In re Bridger
,
¶ 3. The threshold question is whether
Bridger
applies retroactively to cases where direct review was over, but a collateral proceeding was pending. At the outset, we recognize that
Bridger
itself was a collateral proceeding insofar as Bridger pled guilty and was sentenced in 2010 but did not challenge the adequacy of the plea until his PCR proceeding in 2015. Nonetheless, this Court reached the substantive issue and applied the holding to Bridger. Shortly thereafter, this Court applied
Bridger
to another pending collateral proceeding. See
In re Gabree
,
*369 ¶ 4. Several other PCR appeals, which contained Rule 11(f) challenges, were placed on waiting status pending resolution of the Bridger appeal. After Bridger was decided, the parties filed supplemental briefing and the State argued that Bridger announced a new rule that should not be applied retroactively to these cases on collateral review.
¶ 5. This Court has not directly addressed the question of how retroactivity should be resolved for cases on PCR review. The U.S. Supreme Court has held that the prospective or retroactive effect of a decision is a "threshold question" that should be decided at the time of the decision.
Teague v. Lane
,
¶ 6. We agree that rather than waiting for a subsequent case in which to determine the scope of a rule's effect, retroactivity should be determined as a threshold matter, even if not specifically raised by the parties, and now adopt that procedure. Unfortunately, having not adopted this framework prior to Bridger , this Court did not reach the question at that time and now risks uneven application of the law, which the threshold determination is meant to preclude. Nonetheless, having now adopted this process, we turn to the question of Bridger's retroactive application.
I. Retroactive Application
¶ 7. The "general rule [is] that judicial decisions are applied retroactively."
Am. Trucking Ass'ns v. Conway
,
¶ 8. The issue of retroactivity was not raised in the trial court because the appeals in these PCR matters were pending at the time that
Bridger
was decided. Nonetheless, because retroactivity is a question of law to which our review "is nondeferential and plenary," we address it for the first time on appeal.
White
,
A. New Rule
¶ 9. Retroactivity depends foremost on whether a new rule of law was announced.
Shattuck
,
¶ 10. In assessing whether
Bridger
announced a new rule, the first step is identifying the rule of
Bridger
.
Bridger
contained three main holdings regarding the sufficiency of a plea colloquy under Rule 11(f) : (1) defendant must personally make an admission of the facts underlying the charge,
Bridger
,
¶ 11. We conclude that
Bridger
did not establish a new rule with respect to its first holding. Existing precedent interpreting Rule 11(f) required a recitation of the facts underlying the charges and some admission or acknowledgement by defendant
*371
of those facts. See
Bridger
,
¶ 12. There was, however, considerable nonuniformity about how defendant's affirmance of those facts could be obtained. Existing case law at the time of
Bridger's
plea colloquy supported the trial court's decision that a defendant's oral or written stipulation to the facts could support compliance with Rule 11(f). See
State v. Cleary
,
¶ 13. Similarly,
Bridger
's holding that substantial compliance does not apply to evaluating claims under Rule 11(f) was a new rule because it was not dictated by existing precedent and required overruling prior case law.
4
The majority itself recognized that this Court's prior cases were not uniform on the question of whether substantial compliance applied in Rule 11(f) cases and explicitly overruled prior
*372
case law that allowed such application.
Bridger
,
¶ 14. Petitioners argue that, even if
Bridger
clarified the status of the law, it was not a new law for purposes of retroactivity. Petitioners' arguments are not persuasive. Petitioners first rely on
Ex parte Evans
,
¶ 15. Petitioners also support their argument by citing
State v. Brown
,
¶ 16. As set forth above, given that two of the holdings in Bridger were inconsistent with some existing precedent and that one of those holdings required overruling prior cases, we conclude that Bridger established a new rule on these two points for purposes of retroactivity.
B. Exceptions
¶ 17. Having concluded that
Bridger
established a new rule, we turn to the question of whether one of the two exceptions applies. The exceptions allow retroactive application if the rule (1) "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,"
Teague
,
¶ 18. The first exception plainly does not apply in this situation. The new rules announced in
Bridger
do not decriminalize a class of conduct or prohibit imposition of a category of punishment on a certain class of defendants. See
Saffle
,
¶ 19. The second exception for watershed rules is also inapplicable. The U.S.
*373
Supreme Court has stated that "[t]his exception is extremely narrow."
Whorton
,
¶ 20. Moreover, the
Bridger
requirement that the defendant personally acknowledge the factual basis is itself broader than the requirement of the equivalent federal rule, see
Bridger
,
C. Pleas by Waiver and No-Contest Pleas
¶ 21. The fact that Bridger's standards were based on an interpretation of the rule language and not constitutionally required leads to two additional important clarifications about how its holding impacts both pleas by waiver and no-contest pleas. The short answer is that because Bridger was about the procedures required by Rule 11(f) and not mandated by constitutional protections, it did not limit the scope of procedures in other rules.
¶ 22. Commonly referred to as pleas by waiver, Vermont Rule of Criminal Procedure 43(c)(2) states that a defendant need not be present in a misdemeanor prosecution to enter a plea when the defendant has waived appearance in writing and other requirements are met. In
Bridger
the dissent questioned whether pleas by waiver were consistent with the majority's interpretation of Rule 11(f), which required that only a direct colloquy with the defendant would satisfy the rule.
Bridger
,
¶ 23. Rule 11(b) allows a defendant to plead no-contest or "nolo contendere," but "only with the consent of the court." Rule 11(f) is not applicable in cases where a defendant pleads nolo contendere because it states that the factual basis requirement is required prior to accepting "a plea of guilty." See Reporter's Notes, V.R.Cr.P. 11 (stating that its "requirement of a factual inquiry does not apply to pleas of nolo contendere");
State v. Peck
,
II. Application to Facts
¶ 24. Having concluded that the new rules announced in
Bridger
do not apply to these cases, in which collateral challenges were pending at the time
Bridger
was decided, we consider whether, under the law as it existed at the time, the petitioners in these consolidated appeals were entitled to PCR relief. In all four cases, the PCR court granted summary judgment to the State, concluding that there was substantial compliance with Rule 11(f).
6
On
*375
appeal, we review each summary judgment decision de novo and will grant summary judgment if there are no disputed material facts and the movant is entitled to judgment as a matter of law. V.R.C.P. 56(a) ;
In re Brown
,
A. In re Kenneth Barber, Jr.
¶ 25. Petitioner Barber pleaded guilty to second-degree murder in September 2005. At the change-of-plea hearing, petitioner's counsel informed the court that defendant stipulated that there was a factual basis as outlined in the supplemental affidavit. The court addressed petitioner setting forth the terms of the plea agreement, and the rights defendant was waiving by pleading guilty. Petitioner acknowledged that he understood and was waiving his rights.
¶ 26. The following interchange took place between the court and petitioner:
THE COURT: The information as amended charges that on June 10th of 2003, you did then and there, um, that's at Benson, unlawfully kill another human being and that is [the victim] by striking him on the head with a hammer and strangling him with a belt with wanton disregard of the likelihood that your behavior would naturally cause death or bodily or great bodily harm and do you understand that the maximum penalty for that offense is a term of imprisonment for life and for a minimum of 20 years, um, subject to aggravating factors for which the minimum term can be up to life without parole or mitigating factors for which the minimum term can be not less than 10 years and that's pursuant to law. Do you understand that?
[PETITIONER BARBER]: Yes.
¶ 27. The court invited the state's attorney to state the factual basis for the elements and the prosecutor provided a lengthy and detailed explanation of the crime. Petitioner's counsel consulted with him and made one clarification to the factual summary. The court then reviewed the facts and petitioner answered affirmatively when the court inquired whether petitioner agreed it was his signature on a waiver-of-rights form petitioner had signed.
¶ 28. Petitioner filed a PCR petition, claiming that the colloquy was insufficient because the court did not specifically ask defendant whether he admitted the facts. He argues that his written waiver and his attorney's verbal waiver of a factual basis were not sufficient to comply with Rule 11(f).
¶ 29. The PCR court granted summary judgment to the State. The court explained that a defendant's assent to the factual basis for a plea could be demonstrated in a variety of ways, including by stipulation or assent to the prosecutor's recitation of facts. The PCR court concluded petitioner had sufficiently assented to the presence of a factual basis in this case and therefore there was substantial compliance with Rule 11(f) because there was "no concern present that defendant was making a false guilty plea; did not understand the factual basis or the elements of the charge; or did not recognize a defense to the charge."
¶ 30. On appeal, petitioner argues that Rule 11(f) was not followed because at the change-of-plea hearing he did not personally admit to the truth of the facts underlying the plea. As set forth above, in evaluating petitioner's claims, we do not consider *376 the two changes in the law announced in Bridger .
¶ 31. We do not reach the question of whether there was substantial compliance in this case as found by the PCR court because we conclude that under pre-
Bridger
law the stipulations of defendant's attorney satisfied Rule 11(f) and provided a factual basis for the charge. See
Cleary
,
B. In re Theodore C. Smith, Jr.
¶ 32. Petitioner Smith pled guilty to aggravated assault in September 2010. The affidavit supporting the charge recounted that petitioner had stabbed the victim on his neck and torso. He filed a PCR petition in 2015, alleging that during the plea colloquy the court did not sufficiently establish a factual basis. The State moved for summary judgment. During the plea colloquy, the court explained the elements of aggravated assault with a weapon and the maximum penalty for the charge and petitioner indicated that he understood. The court then had the following exchange with petitioner:
THE COURT: ... do you admit that on January 23rd of 2010 at Rutland, you knowingly caused bodily injury to another, that being [the victim], with a deadly weapon?
[Petitioner Smith]: Yes.
¶ 33. The PCR court granted summary judgment to the State. The PCR court concluded that the colloquy with petitioner was sufficient to establish a factual basis because petitioner, when asked by the court, admitted the facts of the charge. The PCR court explained that even though the court's recitation was brief, the facts were not complicated and did not require more.
¶ 34. We agree with the PCR court that the colloquy complied with Rule 11(f). In fact, we would reach this conclusion even if the post- Bridger standard applied. The trial court recited the essential facts of the charge and defendant personally admitted that those facts were true. Although the court's explanation was not an overly detailed recitation of all of the facts in the information, the charge was not complex and the facts set forth established all of the elements of the crime. Under these circumstances, we conclude that the colloquy complied with Rule 11(f).
C. In re Danielle M. Rousseau
¶ 35. Petitioner Rousseau pled guilty in 2005 to possession of heroin. In 2016, petitioner filed a PCR petition. She alleged that the plea colloquy did not make a sufficient inquiry into the factual basis for the plea. The State moved for summary judgment. The undisputed facts demonstrated the following. At the plea colloquy, the trial court read the information, explaining that petitioner was charged with possessing more than two grams of heroin. The court also informed petitioner of the maximum penalty and petitioner indicated that she understood. The trial court and petitioner then had the following exchange:
THE COURT: If this case did go to trial, based on the information in the police officer's affidavit, do you admit that a court or a jury could find you guilty of the elements of the offense beyond a reasonable doubt?
[Petitioner Rousseau]: Yup.
THE COURT: And to the offense, what is your plea?
[Petitioner Rousseau]: Guilty.
*377 The PCR court concluded that there was substantial compliance with Rule 11(f) and petitioner appealed.
¶ 36. We conclude that the plea colloquy was insufficient in this case. As explained above,
Bridger's
holding that the defendant must personally admit to the facts supporting the charge is not new law. See
Yates
,
D. In re John Burke
¶ 37. In 2013, petitioner pled guilty to aggravated domestic assault. In 2016, he filed a PCR petition alleging that the trial court failed to make a sufficient inquiry into the factual basis for the charge and did not comply with Rule 11(f). Both petitioner and the State filed motions for summary judgment. The undisputed facts demonstrated that at the change-of-plea hearing the court engaged petitioner in the following colloquy:
THE COURT: Do you admit that on March 21st, 2013 at Rutland you recklessly caused bodily injury to a family member, [victim], by let's see-
[State's attorney]: He hit her with his fist, Your Honor.
THE COURT: -of grabbing-let's see, it says grabbing her by the throat, slamming her against a wall.
[State's attorney]: It could be, prior to that she says he came after me, started to hit me with his fists, then at another point grabbed her by the throat and slammed her against the wall.
THE COURT: Okay. And you had a prior conviction for aggravated domestic assault on, two-on April 29th, 1998 and December 10th, 2003. Do you admit those facts?
[Petitioner Burke]: Yes, ma'am.
The PCR court granted summary judgment to the State, concluding that the plea colloquy substantially complied with Rule 11(f).
¶ 38. On appeal, petitioner argues that the colloquy was insufficient because given the interruptions by the state's attorney, it is not clear from the record whether petitioner was admitting only to having a prior conviction or to the full recitation of the facts. Rule 11(f) requires an inquiry into whether defendant understands "the facts as they relate to the law for all elements of the charge or charges to which the defendant has pleaded."
Yates
,
The decisions in In re Barber, In re Smith, and In re Burke are all affirmed.
*378 The decision in In re Rousseau is reversed and remanded .
¶ 39. This Court has long interpreted Vermont Rule of Criminal Procedure 11(f) to require defendant during the plea colloquy to personally admit to the facts for all elements of the underlying charge. See
State v. Yates
,
¶ 40. I am much less enthusiastic about the majority's conclusion that
Bridger
contained two additional holdings-that a written or oral waiver is insufficient, and that substantial compliance is not the proper standard-and that these are new law. I am reluctant to describe these as holdings because
Bridger
did little more than reaffirm what had been previously held. As to waiver, it has been our law since at least
In re Manosh
,
¶ 41. Nonetheless, given that some of our case law contained contradictory or confusing statements of the law and that
Bridger
clarified and even overruled those cases, I reluctantly agree that these holdings are "new" for purposes of retroactivity. See
Bridger
,
On appeal, the State urges this Court to overrule
Bridger
and hold that Rule 11(f) requires the trial court to satisfy itself about the factual basis for the plea and does not require a personal admission by the defendant. We decline the invitation. Although this Court does not adhere to stare decisis at all costs, "neither do we lightly overturn recent precedent, especially where the precedent could be changed easily by legislation at any time."
O'Connor v. City of Rutland
,
Although the dissent in
Bridger
and concurrence in
Gabree
raised retroactivity, neither majority opinion discussed the issue. See
Gabree
,
On appeal, petitioners urge this Court to adopt a rule on retroactivity broader than that used by the U.S. Supreme Court. We acknowledge that we are not bound by federal retroactivity principles in determining what remedies are available in state PCR proceedings. See
Danforth v. Minnesota
,
We acknowledge that our cases have not clearly defined the substantial compliance standard. See
Bridger
,
Because it is not raised in this case, we need not and do not address the question of whether a defendant could enter a guilty plea while refusing to admit the underlying facts consistent with the U.S. Supreme Court's holding in
North Carolina v. Alford
,
In all four cases, the petitioners signed a waiver-of-rights form, agreeing that they were aware of the evidence supporting the charge and admitting the essential part of the offense. We do not rely on the signed waivers in analyzing the cases and therefore do not repeat this fact in the recitation of each case. Evaluating compliance with Rule 11(f) stems from examining the colloquy between the court and the defendant at the change-of-plea hearing. See
Yates
,
As explained above, petitioner's written waiver admitting that there was a factual basis was not sufficient to satisfy Rule 11(f) without some colloquy between the court and petitioner affirming that waiver at the change-of-plea hearing.
Reference
- Full Case Name
- In RE Kenneth BARBER, Jr. in Re Theodore C. Smith, Jr. in Re Danielle M. Rousseau in Re John Burke
- Cited By
- 9 cases
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- Published