State v. Rillo

2020 VT 82

State of Vermont v. Jacob M. Rillo

No. 2019-047

Supreme Court of Vermont

March Term, 2020

September 11, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Washington Unit, Criminal Division

Howard E. Van Benthuysen, J.

Thomas J. Donovan, Jr., Attorney General, and Paul A. Barkus, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. REIBER, C.J. Defendant appeals his conviction for selling or dispensing a regulated drug with death resulting, arguing that his guilty plea lacked a factual basis. We agree and reverse defendant's conviction and sentence for that count, and we remand to the trial court for resentencing on the remaining counts.

¶ 2. The record shows the following undisputed facts. In February 2017, the State charged defendant with one count of selling or dispensing heroin and fentanyl, death resulting, 18 V.S.A. § 4250; one count of sale of heroin, id. § 4233(b)(2); and one count of sale of fentanyl, id. § 4234(b)(1) (2016).^* The State alleged that in August 2016 defendant provided heroin and fentanyl to a person, resulting in that person's death. The State also charged defendant with three additional counts of sale of heroin, id. § 4233(b)(2), based on sales in September and October 2016.

¶ 3. Defendant and the State executed a plea agreement in which defendant would plead guilty to selling or dispensing heroin and fentanyl, death resulting, and to the three sales of heroin in September and October. The State agreed to dismiss the other charges. The agreement provided that the State would argue for a sentence of five to ten years to serve on each count, reserving defendant's right to argue for a lesser minimum sentence of two years on each count.

¶ 4. Following a plea hearing in May 2018, the trial court accepted defendant's guilty pleas on all four counts. The court held a sentencing hearing in August 2018. The court sentenced defendant to five to ten years for the charge of selling or dispensing heroin and fentanyl, death resulting, and to four to ten years for each of the sale-of-heroin charges, all to be served concurrently. Defendant appealed.

¶ 5. On appeal, defendant claims his conviction for selling or dispensing heroin and fentanyl, death resulting, should be reversed because his guilty plea lacked a factual basis. He also argues that if this Court reverses that conviction, we should remand for resentencing on the remaining counts. We address each argument in turn and state additional facts as needed.

I. Factual Basis

¶ 6. We first address defendant's argument that his guilty plea lacked a factual basis. At the plea hearing, the trial court questioned defendant pursuant to Vermont Rule of Criminal Procedure 11(f) regarding the factual basis of the charges. Defendant ultimately admitted that he sold one bag of heroin laced with fentanyl to the decedent's girlfriend in August 2016. However, he denied knowing at the time of the sale that the heroin was mixed with fentanyl. He admitted that the decedent was present when defendant gave the substance to the girlfriend, and defendant knew at the time that "there was a danger that [the girlfriend] and [the decedent] would use it." Defendant admitted that the decedent did use it and it caused his death. Based on these statements, the trial court found that defendant's guilty plea on the charge of selling or dispensing heroin and fentanyl, death resulting, had a factual basis and accepted it.

¶ 7. On appeal, defendant argues that there was an insufficient factual basis for this guilty plea because he did not admit to knowing he was dispensing fentanyl and he did not dispense the drug to the person who died, and therefore the plea did not satisfy the requirements of Vermont Rule of Criminal Procedure 11(f). The State contends that the plea colloquy was sufficient because (1) defendant admitted to knowingly selling or dispensing a regulated drug, and the State was not "required to establish . . . that Defendant knew and understood the chemical composition of the compounds" in the drug at the time he dispensed them; and (2) defendant admitted to selling or dispensing the regulated drug to both decedent and decedent's girlfriend. As explained below, we agree with defendant that there was no factual basis for his guilty plea because he did not admit to knowingly selling or dispensing fentanyl. We do not reach defendant's argument that he did not dispense the drug to the person who died.

¶ 8. "[T]he standard for reviewing Rule 11(f) challenges is the same in a direct appeal as in a [post-conviction relief] proceeding." State v. Bowen, 2018 VT 87, ¶ 10, 208 Vt. 164, 195 A.3d 361. "In [post-conviction relief] proceedings, usually a petitioner must show, by a preponderance of the evidence, that fundamental errors rendered [the] conviction defective." Id. ¶ 7 (quotation omitted). But no showing of resulting prejudice is required to prevail on a Rule 11(f) challenge "because a defendant's understanding of the elements of an offense as they relate to the facts goes directly to the voluntariness of [the] plea." Id. (quotation omitted).

¶ 9. Vermont Rule of Criminal Procedure 11(f) requires the trial court to determine if there is an adequate factual basis for a defendant's plea before entering judgment. See V.R.Cr.P. 11(f) ("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."). This inquiry is necessary to ensure the plea is voluntary. In re Gabree, 2017 VT 84, ¶ 9, 205 Vt. 478, 176 A.3d 1113 ("By making this [Rule 11(f)] inquiry, the court ensures that a defendant's plea is truly voluntary and that a reviewing court has the ability to review the record."); In re Bridger, 2017 VT 79, ¶ 11, 205 Vt. 380, 176 A.3d 489 ("The requirement of Rule 11(f) involves an understanding by the defendant that the conduct admitted violates the law explained to him by the court. Absent this, no matter how perfectly the other parts of Rule 11 have been observed, we cannot find a voluntary plea." (quotation and alteration omitted)).

¶ 10. "[A]n adequate factual basis sufficient to demonstrate voluntariness must consist of some recitation on the record of the facts underlying the charge and some admission by the defendant to those facts." Bridger, 2017 VT 79, ¶ 21 (quotation marks omitted). "There is no particular formula to satisfy this standard. . . . But a defendant must, in some manner, personally admit to the factual basis for the charges." Gabree, 2017 VT 84, ¶ 10; see also State v. Yates, 169 Vt. 20, 24, 726 A.2d 483, 486 (1999) ("[T]he factual basis for the plea may consist only of facts that defendant has admitted during the proceedings at which the plea is entered."). "By ensuring, at the least, that the defendant personally admits to facts relating to the elements of the offense, the court exposes the defendant's understanding of the factual basis for each element on the record . . . ." Bridger, 2017 VT 79, ¶ 22. This "facilitates the court's understanding of the facts and provides subsequent courts with the opportunity to review the record to establish that the defendant's plea was truly voluntary." Id.

¶ 11. Here the State charged in the information that defendant "knowingly and unlawfully sold or dispensed HEROIN, a regulated drug, and FENTANYL, a regulated drug, which then proximately resulted in the death of a person," in violation of 18 V.S.A. § 4250. See id. § 4250(a) ("If the death of a person results from the selling or dispensing of a regulated drug to the person in violation of this chapter, the person convicted of the violation shall be imprisoned not less than two years nor more than 20 years."); see also id. § 4233(b) (prohibiting knowingly and unlawfully selling or dispensing heroin); id. § 4234(b) (2016) (prohibiting knowingly and unlawfully selling or dispensing depressant, stimulant, and narcotic drugs other than heroin or cocaine). Given the State's use of the word "and" in the information, part of the act providing the factual basis for the charge was that defendant knowingly sold or dispensed fentanyl. See V.R.Cr.P. 7(b) ("[T]he information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged."); see also State v. Kolibas, 2012 VT 37, ¶ 14, 191 Vt. 474, 48 A.3d 610 ("The purpose of a charging document is to set forth charges with such particularity as will reasonably indicate the exact offense the accused is charged with, and will enable him to make intelligent preparation for his defense." (quotation omitted)). Thus, the plea lacked a factual basis here unless defendant admitted to knowing that the drug he provided contained fentanyl. He did not. Because defendant did not admit that he knew at the time of the offense that the drug contained fentanyl, there was no factual basis for the plea and the trial court erred in accepting the plea. See V.R.Cr.P. 11(f).

¶ 12. The State contends that defendant did admit to knowingly providing fentanyl because defendant admitted that at the time of the hearing he knew the drug had contained fentanyl. This reasoning is incorrect. The "knowing" element of the alleged crime required proof that defendant knew the drug contained fentanyl at the time he committed the crime. See State v. Hanson, 141 Vt. 228, 232, 446 A.2d 372,...