State v. Cleary

Morse, J.

¶ 1. Defendant Donald Cleary appeals following his guilty plea to charges of attempted sexual assault and lewd and lascivious conduct. He argues that the district court erred by finding him competent to stand trial contingent upon his receiving the aid of a cognitive facilitator. He also argues that the trial court violated V.R.Cr.P. 11 during the plea hearing by failing to personally address him, establish his knowing and intelligent waiver of his rights, and elicit his acknowledgment of a factual basis for the charges. We conclude that the record supports the district court’s competency finding, and that defendant has failed to demonstrate that any Rule 11 deficiencies amounted to plain error. Accordingly, we affirm.

¶ 2. Defendant is a mentally retarded, thirty-six-year-old resident of. Hyde Park with an IQ (intelligence quotient) between sixty-five and seventy. While his IQ has remained constant over time, his functional abilities have improved. Defendant lives independently and is employed as a logger.

f 3. On three occasions prior to 1991, defendant was charged with criminal offenses but found incompetent to stand trial. Since then, however, he has twice been found competent to stand trial. In 1991, he pled guilty to charges of unlawful trespass, simple assault, and attempted sexual assault. In 1999, he pled guilty to a charge of unlawful trespass based on an incident in which he entered a woman’s home. The present charges stem from an alleged sexual assault against his mother.

¶ 4. In connection with those charges, defendantwas evaluated by two experts, Dr. Cotton and Dr. Kinsler. Both experts initially found defendant incompetent to stand trial and agreed that the determination was a “close call.” Dr. Cotton later changed his opinion and found defendant competent based on material that neither he nor Dr. Kinsler had reviewed before making their initial determinations, including depositions by mental health workers who had supervised defendant and a 1998 competency evaluation by another expert. Dr. Cotton’s revised opinion was based on information suggesting that defendant could communicate and cooperate with his mental health supervisors, plan and accomplish goals, and five independently. Dr. Cotton also considered evidence that defendant had willfully manipulated his capacities over time to satisfy his needs.

¶ 5. In a lengthy decision filed on October 16,2000, the district court found defendant competent to stand trial, noting, among other things, that *145(1) he had the mental capacity to communicate with counsel and make choices after weighing the risks and benefits of the various options; (2) he had considerable experience with the criminal justice system; (3) he had a basic understanding of his Fifth and Sixth Amendment rights; and (4) he knew the roles andfunctions of his attorney, the prosecutor and the judge.

¶ 6. The court cautioned, however, that defendant did not fully understand the function and role of the jury because he had never gone to trial. Nevertheless, the court concluded that, with careful explanation and accommodation, defendant could develop a sufficient understanding of the jury’s role at trial, and that with such support he would be competent to stand trial.

¶ 7. Following the competency decision, defendant elected to plead guilty to the charges with the understanding that the State would propose a ten-to-twenty-year sentence. At the November 20,2000 change-of-plea hearing, the trial court suggested that, given defendant’s limitations, the Rule 11 colloquy might be more effective if defense counsel asked the questions, with the court assuring itself that the plea was knowing and intelligent. Defense counsel indicated it was a good idea and proceeded to ask defendant a series of questions. The court also asked questions of its own. Following the colloquy, the court expressed its satisfaction, based on defendant’s demeanor and his periodic conferences with his counsel, that defendant understood the terms and consequences of his plea.

¶ 8. The sentencing hearing was held approximately six months later, on May 14,2001. At the hearing, the court sentenced defendant to a term of ten-to-twenty years for sexual assault, and four-to-five years, to be served concurrently, for the lewd and lascivious conduct. Defendant filed an appeal within thirty days of the sentencing decision.

I.

¶ 9. Defendant first argues on appeal that the district court erred by finding him competent to stand trial contingent upon him receiving the assistance of a cognitive facilitator. The State denies that the district court made its finding of competency contingent upon the assistance of a cognitive facilitator, but contends, in any event, that defendant’s unconditional guilty plea waived his right to any direct appeal of the competency determination.

¶ 10. We first consider the State’s latter contention. It is generally true, as the State notes, that a voluntary guilty plea waives all nonjurisdictional defects in the proceedings leading up to the plea. State v. Armstrong, 148 Vt. 344, 346, 533 A.2d 1183, 1184 (1987). There are, however, exceptions to this general proposition. See, e.g., United States v. *146Muench, 694 F.2d 28, 34 (2d Cir. 1982) (allowing direct appeal challenging effective assistance of counsel, notwithstanding usual waiver rule). Several courts have specifically held that a “defendant’s plea of guilty or no contest does not preclude the defendant from raising on direct appeal the issue of competency to plead or stand trial.” State v. Wead, 609 N.W.2d 64, 68 (Neb. Ct. App. 2000); see also People v. Parney, 253 N.W.2d 698, 700 (Mich. Ct. App. 1977) (“defendant’s later guilty plea did not waive the alleged error arising from the prior competency determination’’); People v. Armlin, 332 N.E.2d 870, 874 (N.Y. 1975) (holding that guilty plea did not waive defendant’s right to challenge his competency to stand trial on direct appeal). In a different context, the United States Supreme Court observed that “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive’ his right to have a court determine his capacity to stand trial.” Pate v. Robinson, 383 U.S. 375, 384 (1966) (holding in habeas proceeding that defendant did not waive issue of competence to stand trial by failing to demand competency determination at trial court level). We agree, and thus will treat appeals of competency determinations as an exception to the waiver rule.

¶ 11. We now return to the merits of defendant’s competency argument. The test of competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); accord State v. Bean, 171 Vt. 290, 294, 762 A.2d 1259, 1262 (2000). The standard of competency required to plead guilty is the same as the standard required to stand trial. Godinez v. Moran, 509 U.S. 389, 398 (1993); State v. Lockwood, 160 Vt. 547, 554, 632 A.2d 655, 660 (1993).

¶ 12. The crux of defendant’s argument is that, instead of determining whether defendant was competent at that time to stand trial, the court made a prediction that with accommodation he would be competent to stand trial. Defendant claims that this finding of a “predictive” competence violates the Dusky standard of “present” competence. We disagree. As we have recently noted, “[a] competency determination can require special help or services to enable the defendant to meet the constitutional competency standard.” In re J.M., 172 Vt. 61, 69, 769 A.2d 656, 663 (2001). In J.M., we held that a developmental^ disabled, juvenile could be found competent if given proper support, including the aid of a cognitive facilitator; however, we vacated his guilty plea due to the trial court’s failure to engage in the required V.R.Cr.P. 11 *147colloquy, and the competency determination based on the inadequacy of the court’s findings. Id. at 63, 71, 769 A.2d at 659, 662-64. There is nothing to prevent a court from qualifying its competency finding and suggesting accommodations that will enable the defendant to better capitalize on his capacity to understand and participate effectively in the proceedings. The court is simply finding the present ability, with the proper tools, to stand trial.

¶ 13. We also note that, to some degree, defendant’s argument misses the mark because the court required that he receive accommodation only in the event that his case went to trial. The court recognized that defendant had the capacity to stand trial, but would need accommodation in doing so. For example, the court opined that in order to testify, defendant would need questions phrased in a way that he could understand, the presence of support people, and frequent breaks. The court did not find that defendant was incompetent to enter a plea, or that he required any assistance in order to do so. Because defendant did not proceed to trial, but instead entered a plea, questions regarding the propriety of the order requiring assistance in the event of a trial are only indirectly related to his guilty plea.

¶ 14. The district court found defendant competent to enter a plea, as well as competent to stand trial if given assistance. In making this determination, the court took into account defendant’s, previous experience pleading guilty, his knowledge of the legal system, and the expert opinion of Dr. Cotton. In reviewing the trial court’s competency determination, we will not overturn findings of the trial court if they are supported by credible evidence and are not clearly erroneous. State v. Thompson, 162 Vt. 532, 535, 650 A.2d 139, 141 (1994). Defendant twice had been found competent and had entered guilty pleas. The court found that he could consult rationally with his attorney, receive advice, and reject it if not in his interest, and that he had the ability to decide upon and realize long-term goals, such as the establishment of his private residence and his logging business. Notwithstanding Justice Johnson’s view to the contrary, the court’s finding is supported by the record, including the statements of mental health supervisors that defendant was able to secure two loans from a bank, purchase a camper, and live independently. Further, the court heard the expert opinion of Dr. Cotton stating that defendant could define the charges against him, understand the seriousness of those charges, describe a possible defense to the charges, define the roles of the defense and prosecuting attorneys, and comprehend a plea bargain. There was sufficient evidence in the record to support the trial judge’s finding that defendant was competent to enter a plea.

*148II.

¶ 15. Defendant next challenges the sufficiency of the Rule 11 proceeding. Rule 11 is designed to “assure compliance with the requirements set forth in Boykin v. Alabama, 395 U.S. 238, 242-43 (1969): that a defendant’s plea of guilty must be knowing and intelligent.” State v. Yates, 169 Vt. 20, 25, 726 A.2d 483, 486 (1999). Because a defendant waives important constitutional rights when pleading guilty, the court must review with the defendant the circumstances surrounding the plea to satisfy itself that the plea is voluntarily made with an understanding of its consequences. Boykin, 395 U.S. at 242; In re Hall, 143 Vt. 590, 594, 469 A.2d 756, 758 (1983). Rule 11(c) requires the court to address the defendant, explaining to him and determining that he understands: the nature of the charge to which the plea is offered; the minimum and maximum penalty; that he has the right to plead not guilty; and that he is waiving his rights against self-incrimination and to a jury trial. V.R.Cr.P. 11(c); Hall, 143 Vt. at 594, 469 A.2d at 758. Rule 11(d) requires the court to address the defendant to determine that the plea is voluntary, and Rule 11(f) requires an inquiry into the factual basis or accuracy of the plea. See V.R.Cr.P. 11(d), (f); Yates, 169 Vt. at 25, 726 A.2d at 487. When Rule 11 violations are alleged, we require only substantial compliance with the requirements of the rule. See State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1092-93 (1999) (mem.) (we require only substantial compliance when there is collateral attack on validity of plea based on Rule 11 violation); In re Thompson, 166 Vt. 471, 475, 697 A.2d 1111, 1113 (1997) (PCR petitioners cannot prevail by merely claiming technical or formal violations of Rule 11).

¶ 16. At the outset, we reject the State’s argument that defendant’s plea waived his right to a direct appeal challenging the Rule 11 proceeding. In support of its claim that defendant must bring his Rule 11 claims in post-conviction-relief (PCR) proceedings, the State cites State v. Thompson, 162 Vt. 532, 650 A.2d 139 (1994). The State’s reliance on Thompson is misplaced. In Thompson, we stated that “an issue under Rule 11 ... alleging violations in taking a plea, absent plain error, demands a factual record and opportunity for the trial court to grant relief before this Court may properly review it.” Id. at 534, 650 A.2d at 140 (emphasis added). Thus, Thompson stands for the proposition that a failure to object to the Rule 11 proceedings at the trial court level will result in a plain error standard of review on direct appeal. While the failure to obj ect may result in the factual issues being better developed in a post-conviction setting, it does not bar review of the issue on direct *149appeal. This is consistent with the recent holding of the United States Supreme Court that a defendant who fails to object to an error during a plea colloquy may obtain reversal only upon a showing of plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).

¶ 17. In his dissent, Justice Dooley suggests that we reject the nearly unanimous Vonn decision and abandon the plain-error standard set forth in Thompson. We find nothing in Justice Dooley’s arguments that convinces us to overrule our recent precedent on this point. See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1055 (1997) (mem.) (‘While not slavish adherents to stare decisis, ... we generally require more than mere disagreement to overturn a decision, particularly one of such recent vintage.”).

¶ 18. Justice Dooley begins by comparing Thompson to State v. West, 164 Vt. 192, 200-02, 667 A.2d 540, 545-46 (1995), a later case in which we reversed a conviction based on the trial court’s failure to comply with V.R.Cr.P. 23(a) before accepting the defendant’s decision to waive his right to a jury trial. Here, Justice Dooley equates Rule 11 with Rule 23(a) and declares that the West and Thompson holdings are inconsistent. Yet, in West, this Court did not directly address the issue of whether a plain-error standard is appropriate in Rule 23(a) cases. Justice Dooley, writing for the Court in West, rejected the State’s substantial-compliance argument by distinguishing the requirements of Rule 11 and Rule 23(a). See id. at 201-02, 667 A.2d at 545-46 (although Rule 11 requires district court to advise defendants of specific rights and consequences concerning guilty pleas, it does not require court to read enumerated rights verbatim). Justice Dooley also noted in West that although a substantial-compliance standard for Rule 23(a) had been recognized by other jurisdictions and might be appropriate in Vermont, in that particular case there was near total noncompliance with the rule. Id. at 202, 667 A.2d at 546. In short, West did not consider the question raised here and its holding was not inconsistent with Thompson.

¶ 19. Justice Dooley also questions the rationality of a standard that requires defendants who are presumed to be ignorant of their rights to object to the court’s failure to adequately advise them of those rights. In response to the obvious counterpoint to this argument, Justice Dooley further states that defense counsel cannot be expected to protect his client’s rights because Rule 11 makes it the duty of the court, not defense counsel, who is generally more interested in protecting the plea agreement than his client’s rights. We decline to make such assumptions. As the Supreme Court noted in response to a similar argument by the lone dissenter in Vonn:

*150A defendant’s right to counsel on entering a guilty plea is expressly recognized in Rule 11(c)(2), and counsel is obliged to understand the Rule 11 requirements. It is fair to burden the defendant with his lawyer’s obligation to do what is reasonably necessary to render the guilty plea effectual and to refrain from trifling with the court. It therefore makes sense to require counsel to call a Rule 11 failing to the court’s attention. It is perfectly true that an uncounseled defendant may not, in fact, know enough to spot a Rule 11 error, but when a defendant chooses self-representation after a warning from the court of the perils this entails,... Rule 11 silence is one of the perils he assumes. Any other approach is at odds with Congress’s object in adopting Rule 11... to combat defendants’ “often frivolous” attacks on the validity of their guilty pleas, by aiding the district judge in determining whether the defendant’s plea was knowing and voluntary and creating a record at the time of the plea supporting that decision.

Vonn, 535 U.S. at 73-74 n.10. We agree with this assessment of the situation. Defendants have a right to counsel, and that counsel, in turn, has an obligation to protect his client’s rights by obj ecting if the court fails to engage the defendant in a colloquy required by rule and aimed at assuring that the defendant understand his rights.

¶ 20. Otherwise, as the Vonn Court points out, there would be an incentive for defense counsel to ignore a judge’s Rule 11 lapses, thereby providing the defendant with a hidden safety valve, or an “insurance policy,” to relieve the defendant of his otherwise voluntary plea should he have a change of heart concerning his plea following sentencing. See id. at 73 (defendant could relax and wait to see if sentence was satisfactory). Of course, even with the plain-error standard, a defendant may argue on direct appeal, as here, that the Rule 11 deficiencies resulted in a miscarriage of justice or were so glaring and prejudicial as to warrant reversal. See State v. Tahair, 172 Vt. 101, 110, 772 A.2d 1079, 1086 (2001). Further, if a defendant has second thoughts about a plea before sentencing, he may seek to withdraw his plea under Rule 32(d). We disagree with Justice Dooley’s suggestion that the standard of review in such circumstances — whether the defendant has provided “objective evidence to demonstrate that his subjective misunderstanding was reasonable,” State v. Fisk, 165 Vt. 260, 263, 682 A.2d 937, 939 (1996) — is equivalent to the standard that the defendant would have to satisfy in a post-eonviction-relief proceeding, which places upon the petitioner the additional burden of demonstrating prejudice. See In re Moulton, 158 Vt. *151580, 584, 613 A.2d 705, 708 (1992) (petitioner must show that he relied upon material and prejudicial misunderstanding when entering plea).

¶ 21. In the end, Justice Dooley states that his “real reason” for dissenting is the “overwhelming evidence” that our limitations on review of alleged Rule 11 deficiencies have eviscerated Rule 11 compliance by our trial courts. Post, Dooley, J., dissenting, at ¶ 49. To make this point, Justice Dooley notes that plea proceedings occur “thousands and thousands of times each year” under a systemin which ninety-five percent of defendants plead guilty or no contest, and then cites only fourteen cases over thirty years to demonstrate that we have allowed virtually every possible violation of Rule 11, short of total noncompliance. Post, at ¶¶ 51, 49. He also points out three cases in which we have reversed convictions based on Rule 11 violations. Further, according to Justice Dooley, an undetermined number of recent DWI enhancement cases heard by three-judge panels demonstrate that it is almost always possible for a defendant to argue that a predicate DWI conviction should not be used for enhancement because of claimed Rule 11 violations.

¶ 22. The evidence cited by Justice Dooley does not demonstrate rampant noncompliance with Rule 11 by the trial courts. But even if it did, we fail to see how Justice Dooley’s proposed rejection of the plain-error rule would remedy the situation. Justice Dooley repeatedly states that he does not advocate a standard of review that would result in reversals based on “technical” violations. Indeed, it is unclear what standard of review Justice Dooley would adopt, and how it would differ, as a practical matter, from the standards previously adopted by this Court in direct and collateral appeals concerning alleged Rule 11 violations. As noted above, the Supreme Court has recognized the multitude of frivolous appeals challenging prior pleas based on alleged Rule 11 violations. Justice Dooley’s proposal that we abandon the plain-error standard in such cases will only ensure that we will get many more of those appeals, with no better idea of what standard to employ in resolving them.

¶ 23. Without question, Justice Dooley makes some valid points in his dissent. But however well reasoned, his opinion is no more than an arguable alternative to the approach taken by this Court in a relatively recent, unanimous decision — an approach given near unanimous approval only months ago by the United States Supreme Court. In short, there is no legitimate basis at this time in this case for overruling State v. Thompson, 162 Vt. 532, 650 A.2d 139 (1994).

¶ 24. We now return to defendant’s arguments regarding the Rule 11 colloquy in this case. Defendant cites a myriad of reasons why the proceeding violated Rule 11 and failed to establish the knowing and *152intelligent waiver of his rights. He cites the absence of professional support required by the district court for him to be found competent to enter a plea, his lack of knowledge regarding the nature of a jury trial, and his rote “yes/no” answers during the proceeding. He further contends that the court failed to establish a sufficient factual basis for his plea and failed to personally address him as required by the rule.

¶ 25. Defendant’s first contention is that the court erred in accepting his plea without providing him with a cognitive facilitator or other professional support. He argues that without such support he was not competent and could not knowingly and voluntarily enter a plea. This argument is without merit. As noted above, the trial court found defendant competent to enter a plea upon credible evidence in the record, and did not condition its finding on the presence of any required support persons to assist him.

¶ 26. Defendant next argues that the record did not indicate that he understood the nature and function of a jury, and thus could not knowingly waive his right to a jury trial. Rule 11(c) requires the court to explain and determine that the defendant understands that by pleading guilty he is waiving his right to a jury trial. Defendant was told that he had the right to a trial, to testify, to have his attorney question witnesses, and that he was waiving these rights by entering a plea. He acknowledged that he understood these rights and that he was waiving them. He further stated that, from what his attorney had told him, he understood the terms of the plea agreement. Having found defendant competent to enter a plea, the court then followed, and substantially complied with, the Rule 11(c) requirements. The court made the determination that defendant understood he was waiving his right to a jury trial, and it was satisfied that such waiver was made knowingly. The court’s determination is supported by the record. As noted, the trial court’s findings regarding accommodations for defendant were made with regard to defendant’s capacity to participate in a jury trial, not with respect to his capacity to waive his right to a jury trial.

¶ 27. Defendant further argues that his rote answers of “yes” in response to questioning did not indicate that his plea constituted the knowing and voluntary waiver of his rights. He contends that many developmentally disabled people tend to answer “yes” to a “yes/no” question because they believe that that answer is expected or would meet with approval. Because of this possibility, he argues that his answers gave no assurance that his plea constituted a knowing waiver of his rights. In satisfying itself that defendant understood the consequences of his plea, *153the trial court did not rely solely on his “yes” responses. It also considered his demeanor, manner, and the periodic conferences he had with his attorney. During the proceeding, defendant asked questions, explained to the court what constituted the maximum and minimum penalties possible under his plea, and stated that he understood that his lawyer could argue for a lesser sentence. This suggests that he was not merely parroting answers, but understood his rights and the consequences of his plea. The record reflects that defendant understood the nature of his plea, and answered the questions meaningfully.

¶ 28. Defendant next argues that there was an insufficient factual basis to support his plea. Rule 11(f) requires that before accepting a plea of guilty “the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” V.R.Cr.P. 11(f). Defendant contends that the factual basis for the charge came entirely from the record and the court’s discussion with the lawyers. He claims that this failed to establish a sufficient factual basis and violated Rule 11(f).

¶ 29. We have held that the plea proceeding of a defendant who stipulated to the factual basis for the charge substantially complies with Rule 11. Morrissette, 170 Vt. at 571, 743 A.2d at 1092-93. Here, as in Morrissette, defendant stipulated to the facts. At the plea hearing, defendant indicated that he understood the charges after the court read the informations to him. He also acknowledged that the affidavit of the investigating officer had been read to him recently, and that he understood it. Later in the plea proceeding, when the court asked defendant whether he agreed that the affidavit accurately stated what happened, defendant’s attorney explained that defendant would agree only that there was an attempted sexual assault, not a completed one as suggested in the affidavit.

¶ 30. Given these facts, defendant’s reliance on State v. Yates, 169 Vt. 20, 726 A.2d 483 (1999), is misplaced, as is Justice Dooley’s suggestion that Morrissette effectively overruled Yates. The defendant in Yates was charged with aggravated domestic assault against his wife and simple assault against his wife’s friend, both charges stemming from a single incident. In reversing the trial court’s refusal to grant the defendant’s motion to withdraw his guilty plea, we noted that the trial court made no mention of the aggravated domestic assault charge during the Rule 11 colloquy and, hence, held that there was a “total” failure on the part of the trial court to conduct a confirming colloquy in which the defendant admitted to the facts underlying the charge. Id. at 24, 726 A.2d at 486. *154Here, in contrast, the factual basis was in effect stipulated to and admitted by defendant. Thus, there was substantial compliance with Rule 11.

¶ 31. Defendant’s final argument is that Rule 11 was violated because the required colloquy was conducted in large part by his attorney, instead of the judge. Rule 11 requires the court to advise the defendant and determine that his plea is made knowingly and intelligently by “addressing the defendant personally.” V.R.Cr.P. 11(c), (d). Defendant’s attorney conducted the bulk of the colloquy at the request of the trial court. The court noted that defendant had limitations and tried to accommodate them by allowing his attorney to conduct most of the colloquy. The attorney stated that this was a good idea and noted that he had recently spent two hours with defendant, indicating an ability to communicate effectively.

¶ 32. “[W]e have always required a practical and functional application of V.R.Cr.P. 11 — not as a technical formula, but rather as a guideline to insure fairness to a defendant in the taking of a plea.” State v. Ploof, 162 Vt. 560, 563, 649 A.2d 774, 776-77 (1994). The exact form of the Rule 11 colloquy may vary from case to case, depending on matters such as the competence of the defendant and the complexity of the legal issues. In re Hall, 143 Vt. at 595, 469 A.2d at 758. Here, the trial court thought that the best way to ensure that defendant understood the consequences of his plea was by allowing his attorney to conduct the colloquy. In such inquiries, “‘matters of reality, and not mere ritual, should be controlling.’ ” United States v. Maher, 108 F.3d 1513, 1521 (2d Cir. 1997) (quoting McCarthy v. United States, 394 U.S. 459, 467 n.20 (1969)). Rule 11 was not intended to strait-jacket judges so as to prevent them from taking into account defendants’ individual circumstances and limitations when trying to assure that their constitutional rights are protected. If it reaches the point where it does so, it will be at cross-purposes with its original intent and will have outlived its usefulness. We discern no plain error.

¶ 33. Nor do we think a remand is necessary, as defendant suggests in a letter citing Vonn, to give defendant an opportunity to argue before the district court that the entire record demonstrates that his plea in this case was not knowing and intelligent. In denying defendant’s motion to withdraw his plea, the trial court was well aware of the record in this case and, specifically, defendant’s mental limitations. We see no purpose in remanding this matter for further proceedings.

Affirmed.