State v. Cleary2/7/2003
telligent. In denying defendant's motion to withdraw his plea, the trial court was well aware of the record in this case and, specifically, defendant's mental limitations. We see no purpose in remanding this matter for further proceedings.
Affirmed.
Dissenting
DOOLEY, J., concurring and dissenting.
34. I acknowledge that the majority's decision to require plain error to correct Rule 11 deficiencies in direct appeals follows State v. Thompson, 162 Vt. 532, 650 A.2d 139 (1994), a decision I joined. I conclude, however, that the plain error holding in Thompson is wrong and should be overruled, particularly in light of overwhelming evidence that our decisions have led to regular non-compliance with Rule 11. I, therefore, dissent on this point.
35. Our law normally requires a contemporaneous objection to court rulings later claimed to constitute such error as to require the reversal of the judgment so that the trial court has the opportunity to correct the error. See State v. Griffin, 152 Vt. 41, 45, 563 A.2d 642, 645 (1989); State v. Curtis, 145 Vt. 552, 553, 494 A.2d 143, 144 (1985); In re Mecier, 143 Vt. 23, 28-29, 460 A.2d 472, 475-76 (1983). In the absence of a contemporaneous objection, we will take action only if an error is "plain:" that is, it will result in a miscarriage of justice or is so glaring, grave and serious that it "strikes at the very heart of the defendant's constitutional rights." State v. Tahair, 172 Vt. 101, 110, 772 A.2d 1079, 1086 (2001). Our decision in Thompson simply applied our pre-existing preservation requirement to Rule 11 errors.
36. There was no examination in Thompson of whether it made any sense to require preservation of a Rule 11 error. Although in a slightly different context, we did address these questions, in part, in State v. West, 164 Vt. 192, 200-01, 667 A.2d 540, 545-46 (1995), where we found that the trial court failed to comply with V.R.Cr.P. 23(a) in accepting a waiver of the right to trial by jury. As in this case, there was no preservation in the trial court. See State v. Loveland, 165 Vt. 418, 420, 684 A.2d 272, 274 (1996) (under West, no preservation required to raise violations of V.R.Cr.P. 23(a) on appeal). We noted that the rule contemplates "that only a personal colloquy will enable the court to ensure that defendant understands the critical information on which the waiver must be based." West, 164 Vt. at 200, 667 A.2d at 545. We also noted that " e rejected the use of preprinted information on a preprinted form because of the great risk such information would neither be read nor absorbed." Id. We examined whether we should require the kind of presence of prejudice standard that would result from limited plain-error review. We held that a showing of prejudice was unnecessary because of the nature of the right involved and because a prejudice requirement "would be wholly inconsistent with a prophylactic rule created to ensure that a waiver is informed, voluntary and intelligent." Id. at 201, 667 A.2d at 546. We added that the "point of [Rule 23(a)], . . . and other such advice or colloquy requirements, is to create specific requirements to avoid a case-by-case inquiry of the state of mind of the defendant." Id.
37. I think it was obvious that the holdings of West and Thompson were inconsistent. Certainly, if preservation is not required to raise defects in the advice given before waiving a jury trial and going to trial before a judge, preservation should not be required to raise defects in the advice given before waiver of any trial in favor of a plea of guilty. Indeed, Justice Morse, the author of the majority opinion here, made the point in his dissent in West, 164 V
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