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Vermont Guilty Plea Requires Defendant to Personally Acknowledge Factual Basis for Each Element of the Offenses Charged

by Mark Wilson

The Vermont Supreme Court reversed a defendant’s conviction because she never personally admitted to a factual basis for her plea in violation of Vermont Rule of Criminal Procedure 11(f).

In 2013, Alexis Gabree was charged with two counts of grossly negligent operation of a vehicle, death resulting, in violation of V.S.A. § 1091(b). She ultimately entered into a plea agreement, which required her to plead guilty to both counts in exchange for a prison term of six to 15 years.

During a February 27, 2014 change-of-plea hearing, the court asked Gabree if she understood the charges against her and the maximum sentence she faced. She responded that she did. The court then asked the prosecutor and defense counsel whether there is a factual basis for the charges. Both attorneys agreed that a factual basis exists for the plea. Gabree then pleaded guilty to both counts, and the court accepted her plea.

On April 2, 2014, the court sentenced Gabree to a prison term of six to 15 years in accordance with the terms of the plea agreement. She subsequently filed a petition for post-conviction relief (“PCR”), alleging that she never actually admitted to the factual elements of the crimes for which she was convicted in violation of Rule 11(f).

In general, Rule 11 enumerates a series of substantive and procedural requirements to ensure that a defendant’s guilty plea is knowing and voluntary. It requires the judge to ensure that the defendant understands and admits to a factual basis for each element of the charged offenses.

The PCR court granted the State summary judgment and dismissed the PCR petition, concluding that Gabree’s plea colloquy “substantially complied” with Rule 11(f) and therefore was sufficient.

The Vermont Supreme Court reversed. To satisfy Rule 11(f), the defendant herself must personally acknowledge that a factual basis exists for each element of the offenses charged. That requirement is not met where, as in this case, the defendant’s lawyer made the acknowledgement when asked by the court. Similarly, the Supreme Court instructed that the defendant’s personal acknowledgement that she understood the relevant law as explained by the change-of-plea court does not satisfy Rule 11(f). Understanding of the law is not the legal equivalent of personally acknowledging the factual basis for each element of the offenses charged, stated the Court.

The Supreme Court explained: “To comply with this rule, after reciting the facts, the court merely had to ask petitioner—not defense counsel—whether she admitted to the facts offered to support the charges or some other equivalent question evincing petitioner’s admission that a factual basis existed.” The court failed to do so, and thus Rule 11(f) was not satisfied.

Accordingly, the Vermont Supreme Court reversed and remanded for entry of a judgment allowing Gabree to withdraw her plea. See: In re Gabree, 2017 VT 84 (2017).  

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