CHAPTER 36

PLEAS OF GUILTY

AND NOLO CONTENDERE

§ 36.01 Types of Pleas - Guilty and Nolo Pleas

§ 36.02 - Conditional Pleas

§ 36.03 Plea Bargaining

§ 36.04 - Authorized Concessions

§ 36.05 - Preplea Presentence Reports

§ 36.06 - Acceptance and Rejection of Plea Agreements

§ 36.07 - Broken and "Illusory" Plea Agreements

§ 36.08 - Court Involvement in Plea Bargaining

§ 36.09 - Remedies

§ 36.10 The Boykin/Rule 11(c) Colloquy

§ 36.11 - Advice of Rights

§ 36.12 - Voluntariness of the Plea

§ 36.13 - Factual Basis

§ 36.14 - Review

In Vermont as elsewhere the vast majority of cases are disposed of by pleas of guilty or nolo contendere, rather than by trial.{1} V.R.Cr.P. 11, whose models were the federal rule{2} and the ABA Standards,{3} sets out parameters of the plea bargaining process and spells out the procedures for entry of a plea and for plea withdrawal.

§ 36.01

Types of Pleas - Guilty and Nolo Pleas

A plea of guilty constitutes a factual admission of all the elements of guilt,{4} waives the procedural protections of a trial, and is a sufficient basis for conviction and sentence.{5} A nolo plea has the same consequences, except that it is not a factual admission of guilt, and is not admissible in civil proceedings.{6} With regard to future criminal proceedings, however, it has the same effect as a guilty plea, for example, for impeachment and sentence enhancement.{7}

Because a nolo plea does not admit factual guilt, Rule 11(f), which requires the court to satisfy itself of the factual basis of a guilty plea, does not apply to nolo pleas,{8} except insofar as an understanding of the factual basis of the charge is necessary to the defendant's understanding of the nature of the case and the rights which he is waiving.{9}

Acceptance of a nolo plea is discretionary with the judge, with a view to the parties' positions and "the effective administration of justice."{10} A nolo plea may, for example, be inconsistent with any sentence that will require the defendant to admit or otherwise take responsibility for the crime, for example, a probation condition in a sex offense case requiring cooperative participation in a therapy program.{11}

The judge has the same authority to reject a guilty plea. When a plea is entered pursuant to an agreement it is always up to the judge whether or not to accept it;{12} the same is probably true even when the defendant offers an unqualified guilty plea to the charge, without limiting the judge's sentencing discretion, but a judge would balk at such an offer only in the rarest circumstances.{13}

§ 36.02

- Conditional Pleas

An unconditional plea of guilty or nolo contendere is said to waive all "previous procedural shortcomings, insofar as such defects are subject to waiver."{14} The defendant can appeal from the ensuing conviction, but he is limited to jurisdictional claims (e.g., lack of in personam jurisdiction; a fatally defective charging document) and arguments challenging the plea-taking and sentencing procedures. Defendants with a meritorious appellate claim, and an offer of a favorable plea bargain, had to choose one or the other: the appellate claim could be saved only by insisting on trial, while the plea bargain could be obtained only at the expense of the appellate challenge.{15}

In 1989 Rule 11 was amended to permit conditional pleas, entered with the consent of the judge and the prosecutor, "reserving in writing the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion."{16} If the defendant wins the appeal he may withdraw his plea.{17} He should have the same option if the supreme court refuses to pass on the merits of the reserved question.{18}

§ 36.03

Plea Bargaining

The courts recognize plea bargaining as an essential part of the criminal process,{19} and although there is no constitutional right to plea bargain,{20} the prosecutor may not refuse to bargain on discriminatory grounds.{21}

§ 36.04

- Authorized Concessions

V.R.Cr.P. 11(e)(1) expressly authorizes agreements between the prosecution and defense, that "upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the prosecuting attorney will move for dismissal of the other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both."

Charge concessions, unlike sentence agreements, do not depend on court approval since the prosecutor has full authority to nol prosse or reduce charges. Because sentencing is the judge's prerogative, sentence agreements do require court approval, the mechanics of which are discussed below.{22}

Sentence agreements should go beyond the minimum and maximum terms, and address questions such as credit for time served; the relation of the sentence imposed to any other sentences (whether they will run concurrently or consecutively); and whether the sentence may be served on a "house arrest" or other alternative basis.{23} When the bargained sentence includes a term of probation, the agreement should cover the conditions of probation. When restitution will be one of the conditions, counsel should agree on the amount, rather than leaving that determination to the probation officer and the court.

The authorization to bargain about charges and sentences does not expressly prohibit other types of concessions.

Agreements based on the defendant's promise to cooperate with law enforcement (by testimony or otherwise) are common and the Vermont Supreme Court has explicitly approved them.{24} Such agreements have the potential to produce perjurious testimony, however, and a plea bargain that requires the defendant to "craft one particular version that would work to the State's advantage" would probably not be approved.{25}

Some kinds of bargains may call the plea's voluntariness into question.{26} In State v. Buck{27} the Vermont Supreme Court disapproved a deferred sentence agreement{28} that limited the defendant's right of appeal, inasmuch as the right of appeal "is conferred absolutely by statute. . . ."{29} On the other hand, the court held in State v. Hance,{30} that a defendant can bindingly agree, as part of a plea bargain, to waive his right to move for reconsideration of sentence, in part because of the minimal value of the sentence reconsideration option when a sentence has been imposed pursuant to a plea bargain.{31}

Some concessions are particularly suspect, such as an agreement not to prosecute another person (a relative or friend, for example).

Plea bargain obligations should be explicitly and unambiguously stated. After-the-fact disagreement about the exact terms of a plea agreement may lead to the judgment that no agreement was entered.{32} An expected quid pro quo which is not explicitly incorporated in the agreement may not be enforceable. In State v. Platt{33} an HIV-positive defendant pleaded guilty in part on the assumption that he would receive appropriate treatment in prison. When he later complained about a lack of treatment, the Vermont Supreme Court held that his remedy, if he had one, was with the department of corrections and not the court, because treatment had not been made an explicit condition of the plea agreement, and the plea-taking court "did not make itself a surety for the treatment defendant would receive in prison."{34}

§ 36.05

- Preplea Presentence Reports

Preparation of a presentence report usually follows entry of the plea, but in some cases the prosecutor will refuse to finalize a plea agreement until she knows more about the defendant's background and the circumstances of the crime. The cart can come before the horse in such cases: the rules allow for preparation of a preplea PSI, but only with the defendant's consent (and the report may not be disclosed to the court until after the plea unless the defendant consents).{35}

A preplea PSI may also be appropriate when the contemplated agreement requires the defendant to serve an alternative sentence, for which department of corrections approval is a precondition.{36}

§ 36.06

- Acceptance and Rejection of Plea Agreements

Plea agreements which contemplate a particular sentence or the dismissal of filed charges must be disclosed in court at the time the plea is offered.{37} Disclosure is usually accomplished by the filing of a form notice of plea agreement;{38} in felony cases the prosecutor also has to explain the reasons for the agreement.{39}

The judge then has three options: she "may accept or reject the agreement, or defer [her] decision as to acceptance or rejection until there has been an opportunity to consider the presentence report."{40}

a. Acceptance

The judge can accept the plea agreement by agreeing to impose either the recommended sentence or a less onerous one.{41} Legitimate reasons for accepting a plea agreement include: the defendant's genuine contrition, the availability of appropriate correctional measures under the agreement, the fact that the defendant "by making public trial unnecessary, has demonstrated genuine consideration for the victims[,]" and that the defendant has offered to cooperate with the prosecutor or police.{42}

b. Rejection

The court rejects the agreement if it decides to impose a harsher sentence than the one the prosecutor agreed to recommend.{43} When the plea has already been entered, the court must tell the defendant that the sentence may be harsher than what the agreement calls for, and expressly offer the defendant an opportunity to withdraw the plea.{44} A decision to impose a more lenient sentence constitutes "acceptance" of the agreement under the rules, and does not give the prosecutor a parallel right to withdraw.

c. Deferral

Judges can, and often do, provisionally accept the defendant's plea and defer decision on the agreement pending preparation of a PSI.{45} Deferral, like rejection, requires the judge to advise the defendant that he could get a harsher sentence than the one bargained for and offer him the opportunity to withdraw his plea.{46} The opportunity to withdraw must be offered (or renewed) if and when the judge finally decides to reject the agreement.{47}

§ 36.07

- Broken and "Illusory" Plea Agreements

"Prosecutors are strictly held to the terms of [plea] agreements[,]"{48} and are "held to the most meticulous standards of both promise and performance."{49} Defendants are "entitled to place reliance on the terms of plea agreements being carried out[,]"{50} and any material breach of a plea agreement is a violation of due process.{51} Executory plea agreements, those which the parties have bound themselves to but which the court has not yet accepted, do not have the same protection.{52}

Plea agreements are "contractual in nature" and disputes will be resolved by "contract law standards[,]" with an eye to what the parties intended.{53}

An agreement "not to bring further charges known to the state at this time"{54} includes charges known to any state agency, not just the state's attorney signing the agreement.{55} On the other hand, the same agreement does not bar continued prosecution of charges that have already been filed.{56}

An agreement that committed the prosecutor to "[r]emain silent concerning specific sentence" but allowed him to "comment on the facts" was not violated when he called the victim to testify at the sentencing hearing, and commented on the severity of the crime. The prosecutor had not promised to "remain silent" on the subject of the sentence, and the reserved right "to comment" went "beyond a dispassionate recitation of facts. . . ."{57} But the prosecutor went too far when he argued that the defendant was certain to "strike again" in the future, "in five years, or ten years, or fifteen years, depending on what the court gives him for a sentence. . . ."{58}

An agreement to make no sentencing recommendation may or may not prevent the prosecutor from arguing at a sentence reconsideration hearing that the sentence imposed should remain in place.{59}

A prosecutor can sometimes breach an agreement by proxy, for example, when he makes an agreement to recommend no incarceration, calls the victim to testify in favor of incarceration, and endorses or otherwise associates himself with the victim's proposal;{60} or when the probation officer who prepared the presentence report advocates a sentence in excess of the agreed recommendation.{61}

Breaches by the Defendant

Defendants can breach their end of a plea agreement, permitting the court to reopen the original plea and sentence. A postplea challenge may be construed as such a "breach" if allowing it would "allow a defendant `to escape the obligations of a plea bargain agreement after accepting the benefits thereof.'"{62} A challenge to bargained-for probation conditions,{63} or a request for discretionary reduction of a bargained sentence,{64} risks this consequence.

§ 36.08

- Court Involvement in Plea Bargaining

Vermont, according to its supreme court, "is almost unique in allowing judges to participate in plea bargaining, taking a position different from both the federal rule and the ABA Standards because it has recognized that defendants derive benefits from judges' input."{65}

Judges can participate in plea discussions, but may not do so off the record; the discussions must be taken down by a court reporter or recorded.{66} The potential for coercion is obvious.{67} In a closely related context the Vermont Supreme Court warned judges against "sentence bargaining" with defendants: "The risk in such situations is that the court will try to maximize the likelihood that defendant will accept the resolution by making the alternative particularly undesirable."{68} When a judge enters into plea negotiations, he or she should therefore "not hold out a specific alternative sentence to be imposed if the defendant fails to accept the plea bargain."{69} Even so, the court saw nothing wrong with a case where the judge told the defendant that if he refused to accept a sentence of two to twelve years, he "might well fit into those categories of people I give 12 to 20 to serve." The judge "was merely explaining the possible alternatives"; there were no "threatening overtones" and the judge did not urge or coerce a particular course of conduct.{70}

A judge who participates in failed plea negotiations is not automatically disqualified from presiding at trial, and there is also no per se ban on his handing out a harsher sentence than the plea agreement which he previously endorsed.{71} Such sentences do not raise any presumption of vindictiveness,{72} although a judge may not give "improper weight" to the defendant's failure to take an offered bargain, for example, by commenting on the high costs of trials or on "the defendant's unquestionable guilt and the consequent lack of necessity for a trial. . . ."{73}

§ 36.09

- Remedies

Violated plea agreements can be reviewed by the same routes as other Rule 11 violations: by direct appeal, petition for postconviction relief, or motion to withdraw the plea.{74} A motion to correct the sentence under V.R.Cr.P. 35(b) is not an appropriate vehicle to complain of a broken plea agreement.{75} Suits against the prosecutor for money damages are also not an option.{76}

When a plea bargain has been broken the plea-taking court (or a court on review) can offer either of two remedies: specific enforcement of the agreement, or withdrawal of the plea.{77} The choice of remedy depends on the specific facts of each case, but the Vermont Supreme Court has stated a preference for specific performance when that is possible: "[S]pecific performance of the agreement has often been the chosen remedy in light of the particular circumstances of each case[,]" but when an agreement can no longer be performed the defendant must be allowed to withdraw the plea, "to remove all taint of false inducement."{78} "A major factor in choosing the appropriate remedy is the prejudice caused the defendant by the breach. If the defendant is provided with satisfaction of the bargain he accepted, no unfairness will result."{79} In a case where the prosecutor breached an agreement not to recommend a specific sentence, the court ruled that specific performance - resentencing, before a different judge, with the prosecutor adhering to his agreement - was the appropriate remedy.{80}

§ 36.10

The Boykin/Rule 11(c) Colloquy

The defendant "may plead not guilty, guilty or nolo contendere."{81} He does not have to say the words himself - his lawyer can do it for him{82} - but the act must be his personally.

§ 36.11

- Advice of Rights

A guilty plea encompasses broad waivers of rights, and the judge must make sure that the waivers are knowing, voluntary, and intelligent. In Boykin v. Alabama{83} the United States Supreme Court wrote,

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment. Second is the right to trial by jury. Third, is the right to confront one's accusers."{84}

Rule 11(c), implementing and expanding on Boykin, provides that "[t]he court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, informing him of and determining that he understands" certain important facts. Although the language of the rule is mandatory, the Vermont Supreme Court has not insisted on literal compliance. The judge need not "read verbatim the enumerated rights" and "[i]t is enough that the court engages in an open dialogue with the defendant involving a discussion of the Rule 11(c) elements 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 [sic] to a guilty plea."{85} The sufficiency of any plea colloquy "depend[s], among other things, on the competence of the defendant and the complexity of the legal issues involved."{86}

Although the defendant's knowledge and understanding would seem to require a purely subjective state of mind, the Vermont Supreme Court has said that a defendant who makes a subjective mistake in pleading guilty has no right to withdraw the plea "absent some objective evidence reasonably justifying the mistake."{87} These holdings are not easily reconciled with the language of Rule 11(c) and the constitutional requirements for valid waivers of rights.

The judge in a Rule 11(c) colloquy must explain:

(1) "[T]he nature of the charge to which the plea is offered. . . ."{88} The defendant needs to understand both the facts and the law, because a guilty plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts."{89} Explaining the "nature of the charge" normally requires an explanation of all the essential elements of the offense.{90} An incomplete explanation of the elements may be sufficient, however, if the omission is only technical in the factual context (e.g., as alleged in the affidavit of probable cause), the defendant could not have based a "plausible defense" on a challenge to the omitted element,{91} and it is "evident" that the defendant knew what she was charged with.{92} Otherwise - especially when the unexplained element could be the basis of a defense - failure to explain the full dimensions of a charge can be fatal to a plea.{93}

(2) "[T]he mandatory minimum penalty, if any, and the maximum possible penalty provided by law" including the possibility of a restitution order, although not necessarily the amount of restitution.{94} It may be enough if the judge asks the defendant whether she knows the minimum and maximum punishments and the defendant replies that she does.{95} The judge need not inform the defendant about how or under what circumstances she may become eligible for parole.{96}

(3) "[T]hat the defendant has a right to plead not guilty or to persist in that plea if it has already been made. . . ."{97}

(4) That the plea waives the right to a trial, and various procedural protections, in particular "the privilege against self-incrimination, the right to a trial by jury or otherwise, and the right to be confronted with the witnesses against him[,]" that is, the Boykin v. Alabama rights.{98}

(5) If there is a plea agreement which the judge has not accepted, that the judge can impose a sentence in excess of the agreement.{99}

(6) If the judge is going to question the defendant under oath about the facts, that the defendant can be prosecuted for perjurious answers.{100}

§ 36.12

- Voluntariness of the Plea

Rule 11(d) requires the judge to question the defendant personally and determine that the plea is "voluntary and not the result of threats or of promises apart from a plea agreement." An explanation that the defendant does not have to plea guilty and has a right to trial can be enough.{101} A defendant's assertion that her plea is voluntary will not preclude a later showing that it was not, but constitutes "cogent evidence against later claims to the contrary."{102}

The voluntariness of a plea is closely bound up with the defendant's knowledge of her rights. A defendant who pleads guilty without being informed of all her options has not acted voluntarily, because the plea was "a choice between some, but not all, of the alternatives."{103}

Although the requirement of voluntariness, like the requirements of knowledge and understanding, presupposes a subjective state of mind, dictum in one opinion implies otherwise.{104}

§ 36.13

- Factual Basis

For pleas of guilty, though not for nolo pleas,{105} "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."{106} The record "must affirmatively show sufficient facts to satisfy each element of an offense."{107} This factual basis requirement of Rule 11(f) is normally discharged by the prosecutor's recitation of the facts he or she intends to prove, or by the defendant's admission to the facts alleged in the affidavit of probable cause.{108}

For reasons which are not clear, the Vermont Supreme Court requires stricter compliance with Rule 11(f) than with the advice requirements of Rule 11(c). Unlike the "technical" Rule 11(c) violations raised in cases like In re Hall{109} and In re Bentley,{110} the court held in In re Dunham that a Rule 11(f) violation "goes directly to the voluntariness of the plea[,]" and that the defendant has no burden to show prejudice.{111}

§ 36.14

- Review

A challenge to a Rule 11 violation can be raised by direct appeal, if all the relevant facts are facts of record. If additional facts have to be established, a defendant who is in custody pursuant to the sentence can bring a petition for postconviction relief in superior court.{112}

Federal courts reviewing violations of the parallel federal rule{113} require stricter compliance when the challenge has been brought by direct appeal, than when the defendant brings a collateral attack.{114} In the latter case, the defendant has a difficult burden of convincing the judge of fundamental error, for example, that he would not have entered the plea but for the violation.{115}

Vermont's practice makes no such procedural distinctions, at least not explicitly. In cases involving claimed Rule 11(c) violations, the Vermont court requires a clear showing of prejudice,{116} insisting that "technical" or "formal" violations will not warrant relief.{117} To win relief on a claimed Rule 11(c) violation the defendant must allege and prove not only that the judge failed to advise him of certain facts, but that he was not otherwise aware of them and would not have pleaded guilty if he had been.{118} In Rule 11(f) cases, by contrast, the court reviews strictly, insisting on rigorous compliance, and imposing no burden on the defendant to show prejudice.{119} The scope of review therefore seems to depend on the substantive claim (Rule 11(c) vs. Rule 11(f)) rather than on the method of review.

A defendant who is not in custody cannot bring a postconviction relief petition, but he has the remedy of a motion to withdraw his plea, under V.R.Cr.P. 32(d).{120} When this remedy is available it may be a necessary first step.{121} A Rule 32(d) motion made after sentence, however, may be granted only to correct "manifest injustice."{122}

1. In fiscal year 1991 only about 3 percent of felony charges handled by public defenders were disposed of by trial rather than plea (27 out of 899) and 1 percent of misdemeanors (49 out of 4862). Comparable figures for assigned counsel were 8 percent of felonies (44 tried out of 578) and 5 percent of misdemeanors (33 out of 696). Source: Office of the Defender General, Fifteenth Annual Report (April 1992).

2. F.R.Cr.P. 11.

3. See 3 ABA Standards for Criminal Justice ch. 14.

4. Boykin v. Alabama, 395 U.S. 238, 243 (1969); In re Kasper, 145 Vt. 117, 119 (1984); State v. Bergerson, 144 Vt. 200, 203 (1984). The defendant can, however, plead guilty while protesting his innocence. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (guilty plea accepted despite protestations of innocence where court found "overwhelming evidence" of guilt); State v. Parker, 149 Vt. 393, 407 (1988) (judge properly rejected guilty plea by defendant who claimed innocence, but court notes that protestations of innocence do not per se prevent acceptance of guilty plea).

5. Boykin v. Alabama, 395 U.S. 238, 242 (1969).

6. V.R.Cr.P. 11(b),(e)(5); State v. Peck, 149 Vt. 617, 622 (1988).

7. V.R.Cr.P. 11(b), and Reporter's Notes.

8. State v. Peck, 149 Vt. 617, 622 (1988); In re Young, No. 85-364 (Vt. April 18, 1986) (unpublished).

9. See § 36.11, infra.

10. V.R.Cr.P. 11(b).

11. In State v. Peck, 149 Vt. 617, 621 (1988), the defendant, who pleaded nolo, had nevertheless made factual admissions to the preparer of the presentence report, and the Vermont Supreme Court noted that "there appears to be no possibility here of a Catch-22 situation in which defendant must admit to a criminal act which he denies, and in fact may not have committed, or otherwise be punished if he persists in refusing."

12. Santobello v. New York, 404 U.S. 257, 262 (1971); State v. Davis, 155 Vt. 417, 419-20 (1990); State v. Hunt, 145 Vt. 34, 42, cert. denied, 469 U.S. 844 (1984); In re Reuschel, 131 Vt. 554, 561-62 (1973).

13. See State v. Forbes, 147 Vt. 612, 616 (1987) (defendant tendered guilty plea to reckless endangerment; offer of plea did not raise double jeopardy bar to manslaughter prosecution because judge did not accept it).

14. State v. Armstrong, 148 Vt. 344, 345-46 (1987); State v. Myott, 140 Vt. 267, 268 (1981); In re Dobson, 125 Vt. 165, 166 (1965).

15. Preserving the appellate claim does not require a full-scale jury trial. The parties can waive trial by jury, and can even submit the case to the court on stipulated facts.

16. V.R.Cr.P. 11(a)(2).

17. V.R.Cr.P. 11(a)(2).

18. See State v. Thomas, 140 Vt. 403, 405 (1981) (refusing to entertain appeal on conditional plea, court remanded with leave to defendant to plead anew); State v. Myott, 140 Vt. 267, 269 (1981) (same).

19. Blackledge v. Allison, 431 U.S. 63, 71 (1977); State v. Hance, 157 Vt. 222, 225 (1991); State v. Belanus, 144 Vt. 166, 168 (1984) (quoting Santobello v. New York, 404 U.S. 257, 261 (1971)).

20. Weatherford v. Bursey, 429 U.S. 545, 561 (1977).

21. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Cf. State v. Hohman, 138 Vt. 502, 507 (1980) (prosecutor's election promise to retry and reconvict defendant prejudiced the defendant at the plea bargaining stage).

22. § 36.06.

23. See § 37.19, infra.

24. State v. Davis, 155 Vt. 417, 419 (1990).

25. Cf. State v. Briggs, 152 Vt. 531, 537 (1989) (immunity agreement should not be conditioned on the witness testifying in a particular manner).

26. V.R.Cr.P. 11(e)(1), Reporter's Notes.

27. 139 Vt. 310 (1981).

28. See § 38.03, infra.

29. State v. Buck, 139 Vt. 310, 314-15 (1981). Compare State v. Thompson, No. 91-180 (Vt. May 15, 1992) (sentencing judge adjusted his sentence upward in response to the defendant's threat to appeal).

30. 157 Vt. 222 (1991).

31. State v. Hance, 157 Vt. 222, 226-27 (1991).

32. Creaser v. State, 139 Vt. 315 (1981) (each party filed own version of "agreement"; court holds that defendant was induced to plead "by the illusion of a plea agreement that did not, in fact, exist").

33. No. 91-357 (Vt. May 8, 1992).

34. State v. Platt, No. 91-357, slip op. 5 (Vt. May 8, 1992).

35. V.R.Cr.P. 32(c)(1).

36. See § 37.19.

37. V.R.Cr.P. 11(e)(2).

38. App. 17.

39. V.R.Cr.P. 11(e)(2).

40. V.R.Cr.P. 11(e)(2).

41. V.R.Cr.P. 11(e)(3).

42. State v. Davis, 155 Vt. 417, 419 (1990) (quoting the ABA Standards for Criminal Justice § 14-1.8 (1980)).

43. State v. Belanus, 144 Vt. 166 (1984). This is so even if the defendant was told when he entered the plea that the judge would not be bound to impose the recommended sentence. Id. at 169. See also State v. Bergerson, 144 Vt. 200, 203 (1984).

44. V.R.Cr.P. 11(e)(4); State v. Bergerson, 144 Vt. 200, 203-04 (1984); State v. Belanus, 144 Vt. 166, 170 (1984).

45. V.R.Cr.P. 11(e)(2).

46. V.R.Cr.P. 11(e)(4); State v. Bergerson, 144 Vt. 200, 202-03 (1984).

47. State v. Wallace, 148 Vt. 631 (1987) (mem.); In re Berrio, 145 Vt. 6, 7-8 (1984).

48. Creaser v. State, 139 Vt. 315, 317 (1981).

49. In re Meunier, 145 Vt. 414, 420 (1985) (quoting Kluttz v. Warden, 669 P.2d 244, 245 (Nev. 1983)). An agreement "should be so unambiguous, and the prosecutor's adherence to it so meticulous, as to preclude any challenge by the defendant." Meunier at 423.

50. In re Meunier, 145 Vt. 414, 420 (1985) (citing Creaser v. State, 139 Vt. 315, 317 (1981), and Santobello v. New York, 404 U.S. 257, 262 (1971)).

51. Santobello v. New York, 404 U.S. 257 (1971).

52. Mabry v. Johnson, 467 U.S. 504, 507 (1984) (executory plea agreement "is without constitutional significance").

53. State v. Byrne, 149 Vt. 224, 225-26 (1988) (quoting State v. Earle, 145 Vt. 650, 652 (1985)).

54. See the form Notice of Plea Agreement, App. 17.

55. State v. Earle, 145 Vt. 650 (1985).

56. State v. Byrne, 149 Vt. 224, 225-26 (1988).

57. In re Meunier, 145 Vt. 414, 420-21 (1985).

58. In re Meunier, 145 Vt. 414, 21 (1985). The defendant had "bargained for the prosecutor's silence on the subject of a specific sentence, not merely for the prosecutor's abstention from recommending a specific sentence." Id.

59. In re Meunier, 145 Vt. 414, 421-22 (1985).

60. State v. Clark, 152 Vt. 395 (1989) (prosecutor questioning victim "did not insinuate that his own position on sentencing had changed" but "there may be occasions when a prosecutor ostensibly advocates one position while fostering another sub rosa"). See also State v. Wallace, 148 Vt. 631 (1987) (mem.) (not deciding question).

61. State v. Black, 151 Vt. 253, 254 (1989). The court saw no need to reach the issue, but noted that "[i]t is not uncommon for prosecutors and presentence investigating officers to differ on sentence recommendations." Arguably, a sentence agreement entered into by the "state" binds all state personnel, including probation officers. Cf. State v. Earle, 145 Vt. 650 (1985).

62. In re Fadden, 148 Vt. 116, 118 (1987) (quoting State v. Haynie, 607 P.2d 1128, 1132 (Mont. 1980)).

63. State v. Whitchurch, 155 Vt. 134, 139 (1990) (dictum).

64. State v. Hance, 157 Vt. 222, 225 (1991).

65. State v. Davis, 155 Vt. 417, 420 (1990).

66. V.R.Cr.P. 11(e)(1). The Reporter's Notes discuss some of the pros and cons of court participation. The lack of a record of plea negotiations is immaterial if the substance of the negotiations is later placed on the record and the purpose of the requirement is "functionally satisfied." State v. Davis, 155 Vt. 417, 421-22 (1990).

67. See In re Fisher, 156 Vt. 448, 455 (1991) ("Whether the judge's participation in plea-agreement discussions impermissibly impinged on the voluntariness of the plea is to be determined from all the circumstances surrounding the plea").

68. State v. Thompson, No. 91-180, slip op. 7 (Vt. May 15, 1992).

69. State v. Thompson, No. 91-180, slip op. 7 n.2 (Vt. May 15, 1992).

70. In re Fisher, 156 Vt. 448, 453-58 (1991).

71. State v. Davis, 155 Vt. 417, 420 (1990).

72. Alabama v. Smith, 490 U.S. 794, 801 (1989); In re Fisher, 156 Vt. 448, 454 (1991). In State v. Davis, 155 Vt. 417, 420 (1990), the court wrote, "We cannot make a meaningful comparison between a plea-bargained sentence, based on complex practical and policy considerations, and the sentence the same judge would find acceptable after a fully litigated trial, including a presentence investigation and sentencing hearing. The two scenarios are too dissimilar." Additionally, eliminating the prospect of a higher sentence after trial would remove the defendant's incentive to bargain. Id.

73. State v. Davis, 155 Vt. 417, 421 (1990). See In re Mandeville, 144 Vt. 608 (1984) (judge violated ethical canon requiring impartiality and chilled right to jury trial by saying that defendants who plead guilty show repentance and those who go to trial do not).

74. See § 36.14, infra.

75. State v. Platt, No. 91-357, slip op. 3-4, 6 (Vt. May 8, 1992).

76. Muzzy v. State, 155 Vt. 279 (1990) (prosecutors have absolute immunity in the plea-bargaining process).

77. Santobello v. New York, 404 U.S. 257, 263 (1971); State v. Platt, No. 91-357, slip op. 5 (Vt. May 8, 1992); In re LaRose, 141 Vt. 1, 4 (1982).

78. In re Meunier, 145 Vt. 414, 422 (1985).

79. In re Meunier, 145 Vt. 414, 422 (1985) (citation omitted).

80. In re Meunier, 145 Vt. 414, 423 (1985).

81. V.R.Cr.P. 11(a)(1).

82. In re Bentley, 144 Vt. 404, 408 (1984).

83. 395 U.S. 238 (1969).

84. Boykin v. Alabama, 395 U.S. 238, 243 (1969) (citations omitted). See also State v. Bergerson, 144 Vt. 200, 203 (1984); State v. Hamlin, 143 Vt. 477, 481 (1983). The defendant must also be competent to plead. See Godinez v. Moran, 61 L.W. 4749 (1993); § 8.01, supra.

85. In re Hall, 143 Vt. 590, 595 (1983). See also In re Moulton, No. 91-328, slip op. 4 (Vt. June 26, 1992); In re Kivela, 145 Vt. 454, 457 (1985).

86. In re Hall, 143 Vt. 590, 595 (1983).

87. In re Kivela, 145 Vt. 454, 456 (1985) (quoting In re Stevens, 144 Vt. 250, 255 (1984)). See also In re Cronin, 133 Vt. 234, 236-37 (1975). The court's only justification for this departure from basic waiver principles was the practical one, that "otherwise every plea would be subject to successful attack." In re Stevens, 144 Vt. 250, 255-56 (1984).

88. V.R.Cr.P. 11(c)(1).

89. McCarthy v. United States, 394 U.S. 459, 466 (1969); In re Dunham, 144 Vt. 444, 449 (1984).

90. Henderson v. Morgan, 426 U.S. 637, 647 (1976); In re Kasper, 145 Vt. 117, 119-20 (1984). Reading the information may be enough, but a cursory summary of the charge will not be. Kasper, 145 Vt. at 120.

91. State v. Gabert, 152 Vt. 83, 85-86, 87 (1989). See also In re Hall, 143 Vt. 590, 596 (1983).

92. State v. Gabert, 152 Vt. 83, 89 (1989).

93. State v. Gabert, 152 Vt. 83, 89-90 (1989) (distinguishing McCarthy v. United States, 394 U.S. 459 (1969), and Henderson v. Morgan, 426 U.S. 637 (1976)).

94. V.R.Cr.P. 11(c)(2). The exact amount of restitution may not have been determined and need not be explained. Id., Reporter's Notes - 1987 Amendment. See In re Fadden, 148 Vt. 116, 121-22 and n.3 (1987) (not reaching the question but characterizing restitution as not a "penalty").

95. In re Hall, 143 Vt. 590, 595 (1983).

96. Hill v. Lockhart, 474 U.S. 52, 56 (1985); In re Moulton, No. 91-328, slip op. 4 (Vt. June 26, 1992).

97. V.R.Cr.P. 11(c)(3).

98. V.R.Cr.P. 11(c)(4); Boykin v. Alabama, 395 U.S. 238 (1969).

99. V.R.Cr.P. 11(c)(5). See § 36.06, supra.

100. V.R.Cr.P. 11(c)(6).

101. In re Hall, 143 Vt. 590, 596 (1983).

102. In re Hall, 143 Vt. 590, 596-97 (1983); In re Raymond, 137 Vt. 171, 181 (1979).

103. In re Fuller, 135 Vt. 575, 581 (1977). See also McCarthy v. United States, 394 U.S. 459, 466 (1969) (guilty plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts").

104. Whether a judge's advocacy in favor of a plea agreement rises to the level of a "threat" is not entirely a matter of how the defendant perceived it, because "[a]lthough subjective impressions are relevant, a defendant's apprehension of vindictiveness must be reasonable." In re Fisher, 156 Vt. 448, 457 n.2 (1991).

105. State v. Peck, 149 Vt. 617, 622 (1988).

106. V.R.Cr.P. 11(f).

107. In re Kivela, 145 Vt. 454, 458-59 (1985); In re Dunham, 144 Vt. 444, 451 (1984).

108. In re Kivela, 145 Vt. 454, 459 (1985). Compare In re Kasper, 145 Vt. 117, 119 (1984) (judge merely summarized the charges, no recitation of the underlying allegations).

109. 143 Vt. 590 (1983).

110. 144 Vt. 404 (1984).

111. In re Dunham, 144 Vt. 444, 449, 451 (1984). See also In re Kasper, 145 Vt. 117, 120 (1984).

112. 13 V.S.A. §§ 7131 et seq. See §§ 41.01-41.04.

113. Fed.R.Cr.P. 11.

114. Compare McCarthy v. United States, 394 U.S. 459 (1969) (direct appeal) with United States v. Timmreck, 441 U.S. 780 (1979) (collateral challenge).

115. United States v. Timmreck, 441 U.S. 780, 784 (1979)).

116. In re Bentley, 144 Vt. 404, 409 (1984); In re Hall, 143 Vt. 590, 595 (1983) (quoting In re Raymond, 137 Vt. 171, 182 (1979)).

117. In re Kivela, 145 Vt. 454, 457-58 (1985); In re Bentley, 144 Vt. 404, 410 (1984); In re Hall, 143 Vt. 590, 596 (1983) (citing United States v. Timmreck, 441 U.S. 780 (1979)).

118. In re Bentley, 144 Vt. 404, 410 (1984); In re Hall, 143 Vt. 590, 596 (1983).

119. In re Kasper, 145 Vt. 117, 120 (1984); In re Dunham, 144 Vt. 444, 449, 451 (1984).

120. See § 42.08, infra.

121. See State v. Doleszny, 139 Vt. 80 (1980) (rejecting direct-appeal challenge to guilty plea on Rule 11 grounds when defendant failed to move for plea withdrawal under V.R.Cr.P. 32(d)). Doleszny has never been cited, and the court has entertained a number of such direct-appeal challenges.

122. State v. Tanner, 148 Vt. 384 (1987).