In re Andrew Dashno, Jr. ( 2016 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2015-266
JULY TERM, 2016
In re Andrew Dashno, Jr. } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
} Civil Division
}
}
} DOCKET NOS. 397-4-14/1052-10-13
Trial Judge: Helen M. Toor
In the above-entitled cause, the Clerk will enter:
Petitioner appeals the trial court’s order dismissing his petition for post-conviction relief
(PCR). On appeal, he argues that the plea colloquy in his underlying criminal case was insufficient
because the criminal court failed to establish a factual basis for the plea. We affirm.
In January 2013, petitioner pleaded guilty to aggravated assault with a deadly weapon in
violation of 13 V.S.A. § 1024(a)(2). At the colloquy he admitted to shooting the victim with a gun
and causing bodily injury, but denied that it was his intent to cause bodily injury. In October 2013,
petitioner filed a PCR petition. Petitioner later filed a second PCR, which was consolidated with
the first case. Among other things, petitioner argued that the plea colloquy failed to comply with
the requirements of Vermont Rule of Criminal Procedure 11(f) because during the colloquy he
explicitly denied acting with the intent of causing bodily injury. The trial court granted summary
judgment to the State, concluding that although petitioner denied acting with the intent of causing
bodily injury, the mens rea for the crime was knowing and this intent could be inferred from
petitioner’s admissions that he shot the victim and caused the victim bodily injury.
On appeal, petitioner argues that the plea colloquy failed to establish a factual basis for the
plea. Rule 11(f) states that “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.” The factual basis
requirement of Rule 11(f) “reinforces the goal of ensuring knowing and voluntary pleas” and to
satisfy this requirement, there must be a “specific inquiry by the judge into the factual basis for the
plea.” In re Stocks, 2014 VT 27, ¶¶ 13, 15, 196 Vt. 160. There is no particular formula that is
required, but it is sufficient if the defendant admits to the facts during the colloquy or confirms the
accuracy of the facts as recited by the prosecutor. Id. ¶ 15.
At the change-of-plea hearing, the prosecutor set forth the basic facts underlying the
charge. He explained that petitioner approached the victim, who was walking his dog, and was
agitating for a fight while holding a bat. The victim produced a gun, which fell to the ground.
Petitioner picked up the gun and shot the victim from about ten to fifteen yards away. The court
then outlined for the petitioner that to prove the aggravated assault,
the State would have to prove that [petitioner] intentionally caused
bodily injury to [the victim] with a deadly weapon. . . . They would
have to prove that [petitioner] knowingly caused bodily injury. In
other words, the gun didn’t go off accidently. It was [petitioner’s]
intention to cause bodily injury to [the victim] by shooting him.
That was [his] conscious objective or goal.
Petitioner confirmed that he understood the aggravated assault count. The court also had the
following exchange with defendant:
THE COURT: All right, then you admit that on November 10th of
2012 that first of all that you caused some bodily injury to [the
victim] by shooting at him with a—a gun?
[PETITIONER]: Yes.
THE COURT: And was it your intent to cause bodily injury to him
by shooting at him?
[PETITIONER]: No.
THE COURT: It wasn’t? What was your intent?
[PETITIONER]: To get out of the situation and defend myself.
THE COURT: Okay. Do you acknowledge that if the State
presented the evidence outlined by [the prosecutor] that a jury could
find that it was your intent to do that?
[PETITIONER]: Yes.
THE COURT: Okay and you admit that the—the gun is a deadly
weapon?
[PETITIONER]: Yes.
We conclude that petitioner’s admissions during the colloquy were sufficient to establish
a factual basis for the plea, including the required mental state. The information charged petitioner
with aggravated assault for “knowingly” causing bodily injury to another. 13 V.S.A. § 1024(a)(2).
A “knowing” mental state means that a person “ ‘is aware that it is practically certain that his
conduct will cause such a result.’ ” State v. Jackowski, 2006 VT 119, ¶ 5, 181 Vt. 73 (quoting
Model Penal Code § 2.02(2)(a)). Here, the facts, as admitted by petitioner—that he shot a gun at
the victim and caused the victim harm—were sufficient to establish that he was aware that his
conduct was practically certain to cause the victim injury. See State v. Fucci, 2015 VT 39, ¶ 13,
198 Vt. 482 (“It is elementary that a defendant’s intent may be inferred from the nature of his
acts.”). Although petitioner stated that his “intent” in shooting the gun was not to injure, but to
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defend himself, the charge did not require a showing that petitioner acted purposely. There is a
difference “between a person who knows another may be [] injured because of his conduct and a
person who acts with the specific purpose of [] injuring another.” State v. Trombley, 174 Vt. 459,
462 (2002). Here, the facts as established at the change-of-plea hearing were sufficient to support
the mental state of the charge in that they demonstrated petitioner shot the victim with the
awareness that it was practically certain his actions would cause the victim injury.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
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