by David M. Reutter

In a case of first impression, the Vermont Supreme Court held “that in determining whether the criminal court would have accepted a plea agreement,” the Post-Conviction Relief (“PCR”) “court can consider only evidence that was available to the criminal court at the time it would have considered the plea.”

Rein Kolts was charged in May 2014 with aggravated sexual assault of a child in violation of 13 V.S.A. § 3253a(a)(8), based on multiple sexual assaults of [his] then 13-year-old niece. “That charge carried a mandatory minimum sentence of twenty-five-years-to-life.” § 3253a(b). “Prior to his arraignment, petitioner twice confessed to committing the crime: first, to two plainclothes officers after thirty minutes of questioning, and second, to a family friend who worked at the court,” the Vermont Supreme Court noted.

Before arraignment and at the jury draw, Kolts was offered a plea agreement that provided “he would plead guilty to a lesser charge of aggravated sexual assault, 13 V.S.A. § 3253(a)(8), in exchange for a sentence of ten-years-to-life, split to serve five years.” Kolts was not informed by his attorneys of the mandatory minimum sentence before he rejected those plea offers. A jury found Kolts guilty as charged. The Court observed that the “criminal court expressed its view that home detention would be sufficient to protect the public,” but “it ultimately sentenced petitioner to the mandatory minimum of twenty-five-years-to-life.” The Vermont Supreme Court affirmed the conviction and sentence on appeal.

Subsequently, Kolts filed a PCR petition in January 2019, alleging multiple claims of ineffective assistance of counsel. The PCR court dismissed all claims except the one “that alleged that attorney [Mark] Furlan failed to provide effective assistance in the plea-bargaining process by neglecting to inform him about the mandatory minimum sentence and by not advising him to accept the plea offer.”

“At the PCR trial, [Kolts] continued to insist on his innocence, stating that he was ‘emphatically’ not guilty,” the Vermont Supreme Court said. “On cross-examination, [Kolts] stated that he would be willing to falsely admit his guilt if necessary for his release.”

The PCR court found Kolts “would have accepted the plea offer but for attorney Furlan’s ineffective assistance, the sentence in the plea offer was less severe than the sentence petitioner received at trial, and there was no evidence that the State would have withdrawn the offer prior to trial.” The PCR court, however, concluded that Kolts “could not demonstrate prejudice because he could not show that the criminal court would have accepted his guilty plea to aggravated sexual assault.” It reasoned that even if relief were granted, the criminal court “would be unable to accept the reoffered plea deal because it was ‘obviously aware of [Kolts’] persistent claim of innocence and of his intention to lie under oath.’”

Kolts timely appealed, making two arguments. First, he argued “that the PCR court erred by relying on his postconviction statements in determining that the criminal court would not have accepted his guilty plea.” He raised the narrow question of “whether the PCR court erred in relying on his post-conviction assertions of innocence in reaching this conclusion.” The Court found the issue was preserved and ripe for review. It concluded that “case law from other jurisdictions suggests that PCR courts should not consider postconviction evidence in this aspect of the prejudice inquiry.”

In Medina v. United States, 797 Fed. App’x 431 (11th Cir. 2019) (per curiam), the Eleventh Circuit noted that the District Court’s consideration of the petitioner’s defenses at trial and on appeal was inappropriate because “if counsel’s deficient performance had not occurred here, [the petitioner] would have pled guilty and his claims of innocence at trial and on direct appeal would not have occurred.” Similarly, in Boria v. Keane, 99 F.3d 492 (2d Cir. 1996), the Second Circuit ruled that subsequent claims of innocence do not pose an automatic bar to a finding of ineffective assistance of counsel. The Court stated that neither Kolts nor the State identified any cases from other jurisdictions directly on point regarding the current case. Nevertheless, the Court determined that “case law from other jurisdictions suggests that PCR courts should not consider postconviction evidence in this aspect of the prejudice inquiry.”

In agreeing with Medina and Boria, the Vermont Supreme Court announced that “the prejudice inquiry is only retrospective in nature, with the PCR court seeking to evaluate whether there is a reasonable probability that the outcome would have been different if counsel had provided effective assistance. Given that [Kolts] had not yet made any attestations of his innocence under oath at the time of trial, a guilty plea would only have been perjury if [Kolts] was in fact innocent. Because the State is not arguing that petitioner was innocent, there is no issue of perjury with respect to the prejudice inquiry.”

In reviewing Kolts’s second issue, the Court determined that the “PCR court erred by concluding without a hearing that it could not accept his guilty plea even if postconviction relief were available.” It ordered that the case be heard in front of a different judge “to prevent “inadvertent prejudice or any appearance of unfairness to either side.”

Thus, the Court reversed the PCR court with instructions for the PCR court “to determine whether there is a reasonable probability that the criminal trial court would have accepted the plea offer, limiting its inquiry to evidence that would have been available to the criminal court at the time of trial. If it finds that such a probability exists, it may then order the prosecution to reoffer the plea deal, and assuming petitioner accepts the offer, the criminal court may then exercise discretion in determining whether to accept or reject the plea.”

Accordingly, the Court reversed the decision of the PCR court and remanded the case. See: In re Kolts,2024 Vt. LEXIS 1 (2024).  

Writer’s note: The State’s argument that the court cannot accept a perjured plea is ironic when one considers the prevalence of fictional pleas. In addition, prosecutors routinely force innocent defendants into Alford pleas in an attempt to avoid state liability in wrongful conviction cases while dangling the release and non-prosecution carrot.

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