In Re Dunham

Citations: 479 A.2d 144; 144 Vt. 444; 1984 Vt. LEXIS 598Docket: 83-418

Court: Supreme Court of Vermont; June 1, 1984; Vermont; State Supreme Court

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Gerald Dunham appeals the denial of post-conviction relief by the Orange Superior Court regarding his guilty plea to second degree murder, which he entered as part of a plea bargain related to the first degree murder charge of Byron Nutbrown. The court found that Dunham did not demonstrate a constitutional defect or miscarriage of justice during the plea process. The relevant facts reveal that Dunham was charged along with Ernest Harvey for Nutbrown's murder, and he changed his plea on February 22, 1975, in exchange for testifying against Harvey. During the plea hearing, the prosecutor detailed the circumstances leading to Nutbrown's death, indicating that Harvey had put his arm around Nutbrown's neck, leading to a struggle. Dunham, standing nearby, later confirmed that he checked for Nutbrown's pulse and found none. The prosecutor argued that Dunham's testimony did not establish the necessary element of willfulness required for second degree murder, suggesting further inquiry was needed to determine Dunham’s knowledge of the events leading to the death.

The plea change hearing did not address the petitioner’s state of mind regarding the element of willfulness, a critical aspect defined under 13 V.S.A. concerning second degree murder. The term "wilful" implies intent, which is essential for murder charges, distinguishing it from first degree murder based on premeditation. The hearing complied with most requirements of V.R.Cr.P. 11, except Rule 11(f), which mandates an inquiry to ensure a factual basis for a guilty plea. The petitioner claims non-compliance with Rule 11(f) constitutes a fundamental error, leading to a miscarriage of justice, while the State argues it was a technical violation without demonstrated prejudice. The concept of a "technical violation" is grounded in the U.S. Supreme Court's decision in United States v. Timmreck, which established that such violations do not warrant relief unless prejudice is shown. This principle has been reaffirmed in Vermont cases, including In re Hall and In re Bentley, which dealt with omissions in procedural requirements. The current case highlights a lack of factual basis for the willful element of the murder charge, raising concerns about the voluntariness of the plea, as underscored by McCarthy v. United States and Boykin v. Alabama, which emphasize the necessity of the defendant's understanding of the law related to the facts at the time of the plea.

In Carreon v. United States, the court permitted the defendant to withdraw his plea due to the lower court's failure to establish a factual basis for a potential entrapment defense, as required by Rule 11. The defendant's attorney claimed they discussed all possible defenses, but the court determined that reliance on this statement was insufficient. A prior judge had declined to accept the defendant's guilty plea due to concerns over entrapment, highlighting the need for the court to be vigilant in ensuring compliance with Rule 11. Additionally, the prosecution pointed out a lack of factual basis for establishing the defendant's intent to commit second-degree murder, which constituted a significant warning for the court. The case referenced Rizzo v. United States, where the absence of a factual basis for a plea was deemed inadequate, especially when multiple defendants were involved. The court emphasized that a defendant's silence cannot be interpreted as an implied admission of intent or willfulness. The record must clearly demonstrate sufficient facts for each element of the offense to uphold a voluntary plea. The court found no factual basis for the willfulness element in the current case, resulting in a reversal of the lower court's order and vacating the defendant's guilty plea, allowing him to withdraw it. Furthermore, collateral challenges based on Rule 11(f) do not require proof of prejudice from the defendant.