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2016 VT 24
No. 2015-125
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Rutland Unit,
Criminal Division
Sergio Mendez September Term, 2015
Thomas A. Zonay, J.
Rosemary M. Kennedy, Rutland County State’s Attorney, and Alfonso Villegas, Law Clerk,
Rutland, for Plaintiff-Appellee.
Dawn Matthews, and Mica Williams, Law Clerk, Prisoners’ Rights Office, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. REIBER, C.J. Defendant appeals the trial court’s denial of his motion to
withdraw his guilty pleas in two domestic assault cases. Defendant argues that the court erred by
not using the term “deportation” or “clearly equivalent language” to advise him that deportation
was a possible consequence of pleading guilty. We affirm.
¶ 2. Defendant is a citizen of the Dominican Republic who lived and worked legally in
Massachusetts as a permanent resident of the United States. In June 2013, he pleaded guilty to
one charge of felony domestic assault stemming from a May 2013 incident in which he
attempted to strangle his girlfriend at her home in Rutland, Vermont. Defendant signed a written
plea agreement prior to the change-of-plea hearing that read, in part: “I understand that if I am
not a citizen of the United States of America, admitting to facts sufficient to warrant a finding of
guilt or pleading guilty or nolo contendere (no contest) to a crime may have the consequences of
deportation or denial of United States citizenship.”
¶ 3. Additionally, during the change-of-plea colloquy pursuant to Vermont Rule of
Criminal Procedure 11(c), the court orally advised defendant:
Do you understand that if you’re not a United States citizen, this
conviction could affect your ability to remain in the country, obtain
your U.S. citizenship or reenter the country?
Defendant responded “I understand that.” Upon accepting his change of plea, the court
sentenced defendant to a term of imprisonment of eighteen to thirty-six months, all suspended,
with a probationary term not to exceed two years.
¶ 4. Shortly after defendant was released on probation, the federal government issued
a detainer to place him into deportation proceedings upon completion of his sentence. Then, in
late October 2013, Rutland police responded to two calls in which defendant’s girlfriend alleged
that defendant battered or otherwise assaulted her. During the first call, defendant’s girlfriend
reported that he had pushed and squeezed her, causing pain in her ribs that required emergency
room treatment, before defendant returned to Massachusetts. In the second call two days later,
defendant’s girlfriend reported that defendant was pounding on her front door and demanding
entry into her residence. A police officer responded to the call, found defendant at the residence,
and arrested him there.
¶ 5. As a result of the latter two incidents, in August 2014 defendant pleaded guilty
both to a charge of violation of probation and to a second, misdemeanor charge of domestic
assault. Again, defendant signed a written plea agreement prior to the change-of-plea hearing.
The language of this agreement concerning the possible collateral consequences of a conviction
on his immigration status was identical to that of the prior written agreement. Then, using
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slightly different language as compared to the prior change-of-plea colloquy, the court orally
advised defendant:
Now do you understand that if you’re not a United States citizen,
that a new conviction and the probation violation may affect your
ability to remain in the country, obtain U.S. citizenship or reenter
the country?
Defendant responded “I understand that.” The court sentenced defendant to a term of
imprisonment of fifteen months to fifteen months and a day. Defendant began serving his
sentence immediately.
¶ 6. In January 2015, defendant filed a motion to withdraw both of his guilty pleas on
the basis that the court had not properly advised him that deportation was a risk of pleading
guilty. The court denied this motion, finding that there was no substantive difference between
what the court advised defendant and specifically telling him that he could be “deported.”
¶ 7. Defendant now appeals, arguing that the court should have granted his motion to
withdraw his guilty pleas because the court failed to use either the term “deportation” or what he
describes as “clearly equivalent language”—which we understand to mean either some variation
of the word “deport” or a one-word synonym of “deportation”—during the change-of-plea
colloquies. Specifically, defendant argues that the phrase “affect your ability to remain in the
country” does not comply with Rule 11 and 13 V.S.A. § 6565 because it is open to multiple
interpretations. Conceding that “there are no ‘magic words,’ ” defendant maintains that
“deportation” carries precise weight and meaning for immigrants and would have “triggered a
gut check” for defendant. The State responds that the court’s language did comply with Rule 11
and 13 V.S.A. § 6565 because it more properly conveyed the meaning of “deportation” to
defendant.
¶ 8. Rule 11 promotes fairness in pleas by requiring the court to ensure that the “plea
is knowingly and voluntarily made” before accepting it. See State v. Riefenstahl, 172 Vt. 597,
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599, 779 A.2d 675, 678 (2001) (mem.). It implements 13 V.S.A. § 6565, which was amended in
2005 to warn defendants of possible collateral consequences of a conviction on their immigration
status. Rule 11 now reads, in part:
(c) [T]he court shall not accept a plea of guilty or nolo contendere
without first, by addressing the defendant personally in open court,
informing the defendant of and determining that the defendant
understands:
...
(7) that if the defendant is not a citizen of the United States,
admitting to facts sufficient to warrant a finding of guilt or
pleading guilty or nolo contendere to a crime may have the
consequences of deportation, denial of United States citizenship, or
denial of admission to the United States in the future.
V.R.Cr.P. 11(c). Rule 11 does not require the court to recite this language verbatim. See State v.
Mutwale, 2013 VT 61, ¶ 8,
194 Vt. 258,
79 A.3d 850 (noting that Legislature rejected earlier
draft of 13 V.S.A. § 6565 that would have compelled court to use exact language in
advisements).
¶ 9. Instead, the court has discretion not only to formulate an advisement that explains
the possibilities of deportation, denial of citizenship, or denial of admission to the country, but
also to determine that the defendant understands this advisement. See In re Hall, 143 Vt. 590,
595,
469 A.2d 756, 758 (1983) (“The precise form of the Rule 11 colloquy engaged in by the
court may vary from case to case . . . depending, among other things, on the competence of the
defendant and the complexity of the legal issues involved.” (citations omitted)); see also
Mutwale,
2013 VT 61, ¶ 9 (“It was within the trial judge’s discretion to formulate phrasing that
explained to defendant the possibilities of deportation or denial of U.S. citizenship.”). In
exercising this discretion, the court must substantially comply with the requirements of Rule 11;
the court is not required to recite its language verbatim. See id., ¶ 8 (“The trial judge was not
required to recite the language of Rule 11(c)(7) verbatim; substantial compliance with the
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requirements of Rule 11 is sufficient to withstand a challenge to the sufficiency of a plea
hearing.”).
¶ 10. This principle follows from one of the core requirements of Rule 11: through
open dialogue with the defendant, the court must not only discuss the elements of Rule 11(c) but
also ensure that the defendant understands those elements. See Hall, 143 Vt. at 595,
469 A.2d at
758 (“It is enough that the court engages in an open dialogue . . . to the end that the court is
satisfied, and the record substantiates, that the defendant knows and understands the full array of
legal consequences that attach to a guilty plea.”). Therefore, the court may consider several
factors in formulating an advisement, including both the particular circumstances leading up to
the plea colloquy and the dialogue that occurred during the plea colloquy.
¶ 11. Here, the court did just that on both occasions. First, the court determined that
defendant understood the written plea agreements, which explicitly stated that “pleading
guilty . . . may have the consequence[] of deportation.” The court asked defendant (1) whether
he had read and understood the written plea agreements, (2) whether he had discussed them with
his attorney, and (3) whether he was satisfied with his attorney’s advice. Defendant responded
affirmatively to all three questions. Second, the court orally advised defendant of the risk of
deportation by rephrasing the language found in the written plea agreements. The court then
asked defendant whether he understood, and defendant responded affirmatively.
¶ 12. We restrict our analysis of the court’s advisements to the particular circumstances
of defendant’s plea colloquies. We conclude that it was within the court’s discretion to
formulate an advisement using the phrase “affect your ability to remain in the country.” This
advisement is sufficient in and of itself to explain the possibility of deportation because Rule 11
requires only substantial compliance with its terms, not a verbatim repetition of its language. We
are not convinced that the phrase “affect your ability to remain in the country” is vague; in the
context of defendant’s plea colloquy, “deportation” and “affect your ability to remain in the
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country” would be synonymous. Indeed, we recognize that the court’s phrasing would actually
heighten defendant’s understanding of the possibility of deportation by presenting that possibility
in its most basic sense. Although some courts may find it most appropriate to use the term
“deportation” in their colloquies, the choice to use some other term or phrasing that substantially
complies with Rule 11 is entirely within their discretion. Furthermore, although not necessary to
reach this holding, the references in the written plea agreements to “deportation” buttress it.
¶ 13. Additionally showing that the court satisfied Rule 11—and, by extension, 13
V.S.A. § 6565—defendant unequivocally stated during the plea colloquies that he understood the
court’s advisements. See In re Raymond, 137 Vt. 171, 181,
400 A.2d 1004, 1009 (1979)
(“Assertions in open court . . . are cogent evidence against later claims to the contrary.”). This
case is therefore unlike those in which the court failed to discuss the elements of Rule 11(c) and
to ensure that the defendant understood those elements. See In re Manosh,
2014 VT 95, ¶ 3,
197
Vt. 424,
108 A.3d 212 (holding that Rule 11 was not satisfied when court merely asked
defendant whether he understood “what’s been said and what’s in [the waiver of rights
document]” and whether he had “any question about anything”); In re Parks,
2008 VT 65, ¶ 3,
184 Vt. 110,
956 A.2d 545 (holding that Rule 11 was not satisfied when court gave speech
concerning criminal justice process rather than discuss possible legal consequences of guilty
plea).
Affirmed.
FOR THE COURT:
Chief Justice
¶ 14. DOOLEY, J., concurring. I concur in the decision of the Court because I agree
that the words the trial judge used and the words in the statute are synonymous. I also agree with
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the Court that “the court’s phrasing would actually heighten defendant’s understanding of the
possibility of deportation by presenting that possibility in its most basic sense.” Ante, ¶ 12.
¶ 15. I cannot, however, agree entirely with the Court’s rationale. The majority cites
and relies on In re Hall, 143 Vt. 590, 595,
469 A.2d 756, 758 (1983), for the proposition that
“[t]he precise form of the Rule 11 colloquy engaged in by the court may vary from case to
case . . . depending, among other things, on the competence of the defendant and the complexity
of the legal issues involved,” and on State v. Mutwale,
2013 VT 61, ¶ 8,
194 Vt. 258,
79 A.3d
850, for the proposition that only substantial compliance with Rule 11, including Rule 11(c)(7),
is required. Whatever has been our law with respect to substantial compliance with Rule 11, I do
not believe that substantial compliance with the requirements contained in 13 V.S.A. § 6565(c),
and imported into Rule 11(c)(7), is sufficient.
¶ 16. I explained my views in part in a concurring opinion to the 2013 addition of
V.R.Cr.P. 11.1, adopted to import a statutory addition to the advice that must be provided to a
defendant on acceptance of a guilty plea, in that instance with respect to the possible collateral
consequences of a guilty plea. The relevant part of my concurring statement was:
While I concur, I do so with some hesitancy because, as the
Reporter’s Notes suggest, this rule is likely to import the
jurisprudence of Criminal Rule 11 into this new rule. Because
direct review of alleged Rule 11(c), (d) and (f) violations is
possible only if defendant or defendant’s counsel preserves an
objection to Rule 11 noncompliance, an event that will never
happen, see my dissent in State v. Cleary, 2003 VT 9,
175 Vt. 142,
824 A.2d 509, our regulation of compliance with these parts of
Rule 11 is more theoretical than real. Further, I think it is difficult,
if not impossible to find consistency in our many decisions
involving Rule 11 under the limited and vague review standard we
purport to apply.
V.R.Cr.P 11.1 (Editor’s note).
¶ 17. The standard of review I was referring to was substantial compliance, the standard
used in Mutwale. A good example of the use of “substantial compliance” is State v. Riefenstahl,
172 Vt. 597,
779 A.2d 675 (2001) (mem.), a case cited and relied upon by the majority where the
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court found substantial Rule 11 compliance from a written waiver with virtually no oral
colloquy, even though the Rule requires the trial judge to “address[] the defendant personally in
open court, informing him of and determining that he understands” seven categories of
information. See V.R.Cr.P. 11(c).
¶ 18. In addition to the views stated in my concurrence to the adoption of V.R.Cr.P.
11.1, there is another reason why I do not believe that substantial compliance is the proper
standard for a violation of 13 V.S.A. § 6565(c)(1). In enacting that statute, the Legislature also
enacted a precise remedy for noncompliance. It states that if “the court fails to advise the
defendant in accordance with this subsection” and the plea has negative immigration
consequences, the court “shall vacate the judgment and permit the defendant to withdraw the
plea or admission and enter a plea of not guilty.” Id. § 6565(c)(2). This language is,
unfortunately, not in the rule. There is nothing in it that says that substantial compliance with the
requirements of § 6565(c)(2) is enough. I do not believe that a standard of substantial
compliance, as explained in our case law, complies with § 6565(c)(2). Nor do I agree that the “it
depends” standard from In re Hall complies.
¶ 19. In my opinion, by relying, in part, on a substantial compliance standard in
upholding the advice given in this case, the majority has erred.
¶ 20. I am authorized to state that Justice Robinson joins this concurrence.
Associate Justice
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