Vt. R. Crim. P. 11

As amended through May 9, 2022
Rule 11 - Pleas [Effective June 20, 2022]
(a) Alternatives.
(1)In General. A defendant may plead not guilty, guilty or nolo contendere. If a defendant refuses to plead or a defendant corporation fails to appear, the court shall enter a plea of not guilty.
(2)Conditional Pleas. With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
(3)Reservation of Post-Conviction Challenges-Pursuant to Plea Agreement. With the approval of the court and the consent of the state, a defendant may preserve a post-conviction challenge to a predicate conviction when entering a plea of guilty or nolo contendere pursuant to a plea agreement with the state, by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a post-conviction relief petition, specifically identifying the convictions the defendant intends to challenge, and stating the basis for the challenges.
(4) Reservation of Post-Conviction Challenges-No Plea Agreement. With the approval of the court, a defendant may preserve a post-conviction challenge to a predicate conviction when entering a plea of guilty or nolo contendere in cases where there is no plea agreement, by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a post-conviction relief petition, specifically identifying the convictions to be challenged, and stating the basis for the challenges.
(b) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the effective administration of justice. A plea of nolo contendere shall have the same effect as a plea of guilty, except that it shall be admissible in evidence against the defendant in any criminal or civil proceeding only to the extent provided in paragraph (5) of subdivision (e) of this rule. A conviction based upon a plea of nolo contendere shall be admissible in evidence for all purposes for which a conviction based upon a plea of guilty is admissible.
(c) Advice to Defendant. Except as authorized by Rule 43, the 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 the following:
(1) the nature of the charge to which the plea is offered;
(2) the mandatory minimum penalty, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made;
(4) that if the defendant's plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by so pleading the defendant waives the privilege against self-incrimination, the right to a trial by jury or otherwise, and the right to be confronted with the witnesses against the defendant;
(5) if there is a plea agreement and the court has not accepted it pursuant to subdivision (e)(3) of this rule, that the court is not limited, with the maximum permissible penalty, in the sentence it may impose;
(6) if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded, that the defendant answers may later be used against the defendant in a prosecution for perjury or false statement;
(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; and
(8) that there may be collateral consequences to a conviction.
(d) Receipt of Notice. Before the court accepts a plea of guilty of nolo contendere, the Court shall confirm that the defendant has received the required notice under 13 V.S.A. § 8005(a) and (b)(2) and has had an opportunity to discuss the notice with counsel, if represented.
(e) Plea Agreement Procedure.
(1)In General. The prosecuting attorney and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement 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 other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. The court shall not participate in any such discussions, unless the proceedings are taken down by a court reporter or recording equipment.
(2)Notice of Such Agreement. If a plea agreement has been reached by the parties which contemplates entry of a plea of guilty or nolo contendere in the expectation that a specific sentence will be imposed or that other charges before the court will be dismissed, the court shall require the disclosure of the agreement in open court at the time the plea is offered. In a felony case, the prosecuting attorney shall also disclose the reasons for entry into the plea agreement. Thereupon the court, before entry of the plea, may accept or reject the agreement, or defer its decision as to acceptance or rejection until there has been an opportunity to consider the presentence report. The plea agreement shall not be binding upon the court nor shall it limit the court in the judgment and sentence to be imposed unless the court accepts the plea agreement under subdivision (e)(3) of this rule.
(3)Acceptance of Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or a less onerous disposition.
(4)Rejection of Plea Agreement. If the court rejects the plea agreement or defers decision upon it, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is or may not be bound by the plea agreement, pursuant to Rule 32(d) afford a defendant who has already pleaded the opportunity to then withdraw his plea, and advise the defendant that if he persists in his plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
(5)Inadmissibility of Pleas, Plea Discussions, and Related Statements. Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(A) a plea of guilty which was later withdrawn;
(B) a plea of nolo contendere;
(C) any statement made in the course of any proceedings under this rule regarding either of the foregoing pleas;
(D) any statement made in the course of plea discussions with an attorney for the prosecution which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
(f) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, 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.
(g) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea.
(h)Receipt of Notice. Before the court accepts a plea of guilty or nolo contendere, the Court shall confirm that the defendant has received the required notice under 13 V.S.A. § 8005(a) and (b)(2) and has had an opportunity to discuss the notice with counsel, if represented.

Vt. R. Crim. P. 11

Amended March 17, 1977, eff. 5/1/1977; 12/8/1981, eff. 3/1/1982; 6/30/1982, eff. 7/1/1982; 11/2/1982, eff. 2/1/1983; 12/28/1982, eff. 4/1/1983; 10/31/1983, eff. 2/1/1984; 11/24/1986, eff. 3/1/1987; 12/8/1988, eff. 3/1/1989; 7/1/2006, eff. 9/1/2006; 3/12/2013, eff. 5/13/2013; 12/21/2015, eff. 1/1/2016; amended April 5, 2021, eff. 6/7/2021; amended April 18, 2022, eff. 6/20/2022.

Reporter's Note-2016 Emergency Amendment

Rule 11 is amended consistent with the Uniform Collateral Consequences of Conviction Act (DCCCA), 2013, No. 181 (Adj. Sess.), § 1, which is in pertinent part codified at 13 V.S.A. §§ 80028005, and effective January 1,2016. The amendments direct the court to engage in specific additional colloquy with a defendant entering a plea of guilty or no contest as to the potential collateral consequences of a conviction, extending to such consequences as loss of educational financial aid, suspension or revocation of professional licenses, and restricted access to public benefits such as housing. Defendants must be advised ofthe specific potential collateral consequences enumerated in the statute, of an established Internet source for access to further information about them, and of the availability of process under which some relief from collateral consequences may be obtained.

The amendment contemplates that, in the court's discretion, defendants may continue to enter pleas of guilty or nolo contendere by written waiver, obviating personal appearance and record Rule 11 colloquy in court, pursuant to Rule 43. (Written waiver would necessarily include acknowledgment and understanding of collateral consequences advisements prescribed by the statute.)

The UCCCA expressly provides that the collateral consequences rights advisements may be given either orally on the record, or in a writing provided to the defendant. 13 V.S.A. § 8005(b). In the entry and acceptance of a plea of guilty or nolo contendere pursuant to Rule 11, the statute directs the court to confirm that the defendant has received the notice required by § 8005(a); that the defendant has had an opportunity to discuss the notice with counsel, if represented; and understands that there may be collateral consequences to a conviction. In addition, for Rule 11 purposes, the court must provide written notice, as part of a written plea agreement or through another form: (A) that collateral consequences may apply because of the conviction; (B) of the Internet address of the collection of laws related to collateral consequences maintained by the Attorney General pursuant to 13 V.S.A. § 8004; (C) that there may be ways to obtain relief from collateral consequences; (D) of contact information for government or nonprofit agencies, groups, or organizations, if any, offering assistance to individuals seeking relief from collateral consequences; and (E) that conviction of a crime in Vermont does not prohibit an individual from voting in Vermont. Id. § 8005(b)(2).

The present amendment contemplates that standard forms setting forth the required collateral consequences advisements in writing will be provided and generally used by the court and parties at Rule 5 initial appearance/arraignment and for purposes of Rule 11 entry and acceptance of pleas of guilty or nolo contendere. Existing plea agreement and Rule 43 "waiver" plea forms may also be subject to revision to add the collateral consequences advisements to existing rights advisement and acknowledgment forms. In all cases, it will remain within the discretion, authority and responsibility of the court to conduct such additional colloquy as the court deems necessary in the circumstances to assure that a defendant's plea of guilty or nolo contendere is knowingly and voluntarily given. Notwithstanding the use of forms, and legislative authorization to do so as to collateral consequences advisements, if a defendant does not waive appearance in court pursuant to Rule 43, and personally appears, the court must engage in full colloquy "substantially complying" with the terms of Rule 11 in conjunction with a defendant's entry of knowing and voluntary plea of either guilty of nolo contendere. See In re Manosh, 2014 VT 95, 197 Vt. 424, 108 A.3d 212.

13 V.S.A. §§ 8007-8014 establish a process whereby a defendant may seek relief or remittal from certain collateral sanctions, disqualifications, or penalties which follow by operation of law from a criminal conviction. However, § 8003 specifies that the DCCCA (Title 13, chapter 231), does not provide a basis for invalidating a plea, conviction, or sentence; a cause of action for money damages; a claim for relief from, or defense to the application of, a collateral consequence based upon a failure to comply with the chapter; or seeking relief from a collateral consequence imposed by another jurisdiction, unless the law of such jurisdiction provides for such relief.

Thus, any claim of error with respect to the sufficiency of collateral consequences advisements in the entry and acceptance of a plea of guilty or nolo contendere would be subject to grounds and standards generally applicable to invalidation of pleas. See, e.g., In re Brown, 2015 VT 107, ~~ 11-12, _Vt.-, _ A.3d_; In re Hemingway, 2014 VT 42, ~ 8, 196 Vt. 384,97 A.3d 896; Manosh, 2014 VT 95; State v. Marku, 2004 VT 31, 176 Vt. 607, 850 A.2d 993 (mem.); In re Calderon, 2003 VT 94, 176 Vt. 532, 838 A.2d 109 (mem.); State v. Riefenstahl, 172 Vt. 597, 779 A.2d 675 (2001) (mem.). Cf. State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1093 (1999) (mem.), overruled by Manosh, 2014 VT 95. But see In re Parks, 2008 VT 65, 184 Vt. 110, 956 A.2d 545 ("wholesale failure" of Rule 11 compliance on part of court).

Reporter's Notes-2021 Amendment

Rule 11(a)(3) is added, consistent with the Court's direction in In re Benoit, 2020 VT 58, __ Vt. __, 237 A.3d 1243. In Benoit, the Court held that with the state's agreement and the court's approval, defendants may preserve a post-conviction relief (PCR) challenge to a predicate conviction even while pleading guilty to an enhanced charge by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a PCR petition, specifically identifying the convictions they intend to challenge and stating the basis for the challenges. If a defendant pleads guilty or nolo contendere while preserving the PCR claim, with the consent of the state and the approval of the court, the plea will be analogous to a conditional plea under V.R.Cr.P. 11(a)(2) (With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. [A] defendant [who] prevails on appeal . . . shall be allowed to withdraw [the] plea.").

In reconciliation of two lines of case law addressing preservation of such challenges-established on the one hand in State v. Boskind, 174 Vt. 184, 807 A.2d 358 (2002), and on the other in In re Torres, 2004 VT 66, 177 Vt. 507, 861 A.2d 1055 (mem.), and leading to the decision in In re Gay, 2019 VT 67, __ Vt. __, 220 A.3d 769-the Court stated the following in Benoit, 2020 VT 58, ¶ 18:

In contrast to the guilty pleas in Torres and Gay, such pleas will not foreclose a PCR petition challenging the specified predicate convictions. See Gay, 2019 VT 67, ¶ 10 n.5, 220 A.3d 769 (noting waiver rule does not apply to conditional guilty pleas); State v. Key, 312 P.3d 355, 361 (Kan. 2013) (holding that defendant who pleads guilty may preserve challenge to sentencing enhancement "by an objection on the record at sentencing"). A defendant convicted and sentenced pursuant to such a guilty plea may then challenge the validity of a prior offense in a PCR proceeding seeking to vacate the enhanced sentence.

In Benoit, the Court requested that the Advisory Committee on the Vermont Rules of Criminal Procedure "propose a rule to standardize the process for documenting the type of PCR-conditional plea" recognized in its decision. Benoit, 2020 VT 58, ¶ 20 n.6. The present amendment prescribes the procedure by which a defendant may preserve such challenges for post-conviction review. Note that the amendment does not address all preservation scenarios which may be presented in the context of a defendant's plea resulting in conviction. These include a defendant's plea of guilty or nolo contendere without a plea agreement (and thus, the prescribed consent of the state), and those circumstances where a post-conviction challenge does not deal with the validity of a predicate conviction, but rather, issues such as ineffective assistance of counsel. Of course, in the absence of agreement by the state and consent of the court as prescribed by the rule, a defendant retains all rights of trial by jury on the enhanced charge, and appeal from any verdict of guilty therein, standing on the plea of not guilty. Nor does the amendment prescribe the level of specificity of the court's colloquy with a defendant as to the consequences of a plea given under added new paragraph (a)(3), including waiver of the statutory right to a PCR challenge of any predicate offenses that are not specified in the parties' plea agreement. It should be noted that no such specific colloquy has been required under the existing paragraph (a)(2) governing conditional pleas, which has been in effect since 1989. Thus, the content of the court's colloquy with a defendant seeking to enter a plea of guilty or no contest in the manner prescribed by added paragraph (a)(3) is committed to the discretion of the court, consistent with all the other provisions and requirements of Rule 11.

Reporter's Notes-2022 Amendment

Rule 11(a)(4) provides an additional procedure whereby a defendant may preserve a post-conviction challenge to a predicate conviction while pleading guilty or no contest to an enhanced offense, where the State has not consented to preservation of the challenge under the terms of Rule 11(a)(3). Rule 11(a)(3) was promulgated to implement the Supreme Court's direction in In re Benoit, 2020 VT 58, 212 Vt. 507, 237 A.3d 1243. In Benoit, the Court held that with the State's agreement and the Court's approval, defendants may preserve a post-conviction relief (PCR) challenge to a predicate conviction even while pleading guilty to an enhanced charge by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a PCR petition, specifically identifying the convictions they intend to challenge, and stating the basis for the challenges. If a defendant pleads guilty or nolo contendere while preserving the PCR claim, with the consent of the State and the approval of the court, the plea is analogous to a conditional plea under V.R.Cr.P. 11(a)(2) ("With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. [A] defendant [who] prevails on appeal . . . shall be allowed to withdraw [the] plea.").

This amendment seeks to address a specific issue not expressly reached in Benoit-cases in which a defendant is willing to plead guilty with or without benefit of a plea agreement as to recommended sentence, but the State is unwilling to consent to preservation of a PCR challenge as to a predicate conviction, even under a procedure that would be analogous to the conditional plea authorized by Rule 11(a)(2).

The amendment provides that, with the approval of the court, a defendant may preserve a PCR challenge to a predicate conviction when entering a plea of guilty or nolo contendere even in cases where there is no plea agreement, or consent to the preservation otherwise given by the State in the absence of a plea agreement, by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a PCR petition, specifically identifying the convictions to be challenged, and stating the basis for the challenges.

As is the case with a plea given under Rule 11(a)(3), the present amendment requires the court's approval of a defendant's attempt to preserve a post-conviction challenge to a predicate conviction while pleading guilty or no contest to the related enhanced charge. As with the Rule 11(a)(3) plea, the present amendment does not prescribe criteria governing the court's approval or rejection of a defendant's effort to preserve a post-conviction challenge by stating the basis for challenge of an identified predicate conviction without State agreement. However, in contrast to Rule 11(a)(4), the procedure authorized under Rule 11(a)(3) is expressly recognized in Benoit as akin to a conditional plea under Rule 11(a)(2), with the certainties of case outcome thus provided (i.e., either the defendant must be allowed to withdraw if the defendant prevails on the issue identified and appealed with approval of the court and consent of the State, or the conviction and sentence that were the subject of the plea stand).

The content of the colloquy with a defendant seeking to enter a plea per Rule 11(a)(4), and findings to be made by the court, are not prescribed in the rule, beyond those otherwise required in the entry of any plea of guilty or nolo contendere per V.R.Cr.P. 11(c)-(f). However, in the course of the colloquy as to a plea given under Rule 11(a)(4), if the court concludes that a defendant's plea is not knowingly and voluntarily given, or that the subject charge is without adequate factual basis, the court must not accept the plea.

Of course, in lieu of a plea under circumstances prescribed by either paragraph (a)(3) or (4), a defendant retains all rights of trial by jury on the enhanced charge, and appeal from any verdict of guilty therein, standing on the plea of not guilty.