Introduction

In State v. Prue, the Vermont Supreme Court reversed a conviction for disturbing the peace by phone under 13 V.S.A. § 1027(a) because the trial court accepted a guilty plea without establishing a proper factual basis as required by Vermont Rule of Criminal Procedure 11(f). The case arises from a series of text messages sent by the defendant to a Department for Children and Families (DCF) worker following notification of paternity test results. Although the charging instrument alleged alternative statutory theories, the colloquy never firmly settled which theory anchored the plea, and the defendant never personally admitted facts satisfying a single chosen theory.

The decision reiterates two critical points: first, where a statute sets out multiple, disjunctive ways to commit an offense, a valid guilty plea requires the defendant’s personal admission to facts that satisfy the specific theory on which the State and court proceed; second, Rule 11(f) challenges on direct appeal are assessed under the Bridger line of cases, which require no separate showing of prejudice because deficiencies go to the voluntariness of the plea. The Court reversed and remanded without reaching the defendant’s constitutional arguments (due process and First Amendment).

Note on citation: This is an Entry Order by a three‑justice panel; such decisions are not precedential in Vermont. Nonetheless, the opinion is instructive in its careful application of established plea‑colloquy principles.

Summary of the Opinion

The defendant pleaded guilty to violating § 1027(a). The information alleged alternative theories: (1) threatening to inflict injury or physical harm, and (2) disturbing or attempting to disturb the victim’s peace, quiet, or right to privacy by repeated electronic communications, each with the requisite specific intent (to terrify, intimidate, threaten, harass, or annoy).

At arraignment, the trial court’s probable cause assessment turned on a single message stating, among other things, “you’re lucky I don’t hunt you down.” At the later change‑of‑plea hearing, the State elected to proceed under the “repeated communications” theory, but defense counsel stated the defendant would plead guilty only if the basis was that one particular message as a “threat,” while disputing the rest of the message string as protected speech. The court then elicited the defendant’s agreement to facts supporting the repeated‑communications theory, while only ambiguously probing the alleged threat; the defendant did not clearly admit sending a “threat.”

On appeal, both parties initially framed the Rule 11(f) issue as plain error. The Court clarified that although Rule 11(f) challenges on direct appeal are often described as “plain error,” Vermont applies the Bridger standard equally on direct appeal and in collateral proceedings: the record must demonstrate that the defendant understood the facts as they relate to the law for all elements of the charge. Because the record did not establish that the defendant personally admitted a factual basis tied to one specific theory—and indeed suggested confusion or contradiction—the Court held Rule 11(f) was not satisfied, reversed the conviction, and remanded. The Court did not reach the defendant’s additional constitutional arguments.

Analysis

Precedents Cited and How They Shaped the Decision

• In re Bridger, 2017 VT 79, 205 Vt. 380: Establishes that the plea record must show the defendant understood the facts as related to the law for all elements and that there is an adequate factual basis sufficient to demonstrate voluntariness. Prue applies Bridger’s substantive standard on direct appeal.
• State v. Bowen, 2018 VT 87, 208 Vt. 164: Holds Bridger’s standard also governs unpreserved Rule 11(f) challenges on direct appeal; no prejudice showing is required because the deficiency implicates voluntariness. Prue relies on Bowen to avoid the usual plain‑error prejudice inquiry.
• State v. Lizotte, 2018 VT 92, 208 Vt. 240: Clarifies that although often described as plain error, direct‑appeal Rule 11(f) challenges apply the same standard as collateral challenges; no separate prejudice requirement. Prue quotes and follows Lizotte.
• In re Dunham, 144 Vt. 444 (1984) (quoting McCarthy v. United States, 394 U.S. 459 (1969)): A plea cannot be voluntary unless the defendant understands the law in relation to the facts. Prue invokes this fundamental principle to underscore why the absence of a clear, theory‑specific factual basis is dispositive.
• In re Gabree, 2017 VT 84, 205 Vt. 478: Requires that “the defendant must, in some manner, personally admit to the factual basis for the charges.” In Prue, the defendant never personally admitted to the “threat” theory and only reluctantly agreed to repeated‑communications facts after counsel limited the plea basis—rendering the record inadequate.
• In re Barber, 2018 VT 78, 208 Vt. 77: A plea colloquy can be sufficient without an “overly detailed recitation” if the elements are clearly established; but the record must show facts establishing all elements. In Prue, ambiguity about which theory applied, and the lack of personal admission tied to any one theory, distinguishes Barber.
• In re Miller, 2009 VT 36, 185 Vt. 550: Rule 11(f) protects against false pleas where defendants misunderstand the elements. Prue reflects precisely this concern when the record shows confusion between disjunctive theories.
• State v. Koons, 2011 VT 22, 189 Vt. 285: Typical plain‑error framework for unpreserved issues; discussed to explain why the Bridger/Lizotte approach displaces the usual prejudice analysis for Rule 11(f).
• State v. Rillo, 2020 VT 82, 213 Vt. 193: Illustrates the remedy—reversal and remand—when Rule 11(f) is not satisfied. Prue follows this remedial path.
• State v. Noll, 2018 VT 106, 208 Vt. 474 and Virginia v. Black, 538 U.S. 343 (2003): Define the “true threats” doctrine under the First Amendment. The trial court flagged that true‑threat analysis makes the “threat” theory more complex; although Prue does not reach First Amendment issues, the doctrine frames the parties’ strategic choices and the court’s caution.

Legal Reasoning

The Court’s reasoning proceeds in two steps: the applicable review standard and the adequacy of the factual basis.

First, the Court reaffirms that Rule 11(f) challenges on direct appeal are assessed under the Bridger standard, not the conventional plain‑error prejudice framework. Because the factual‑basis requirement goes directly to the voluntariness of a guilty plea, a separate showing of prejudice is not required.

Second, applying Bridger, the Court scrutinizes the plea record. Section 1027(a) can be violated by alternative means. The charging information used elective, disjunctive language. At the change‑of‑plea hearing, the State elected the repeated‑communications theory; defense counsel affirmatively limited the plea to a single “threatening” message, disputing that the remainder of the messages could constitute a crime (asserting they could be protected speech). The colloquy that followed contained:

• Defendant’s admission that the communications were intended to harass or annoy, and that sending 30–35 messages without response “was designed to disturb” the DCF worker’s peace and privacy—facts that align with the repeated‑communications theory; but
• An ambiguous exchange on the threat theory in which, when asked whether there was “at a minimum” one threat, the defendant responded, “I have to see it,” never personally admitting the threat.

This mismatch matters. Under Bridger and Gabree, the record must show the defendant personally admitted facts that, as related to the law, satisfy all elements of the offense as charged and elected. Because counsel expressly limited the plea to the “threat” message while the court elicited admissions consistent with the “repeated communications” theory—one defense counsel said was disputed—there was no mutual understanding of the factual and legal basis of the plea. And defendant did not personally admit to a threat. The resulting ambiguity fails Rule 11(f).

The Court therefore reverses and remands without addressing whether the earlier probable‑cause ruling constrained the permissible plea theory or whether the First Amendment barred application of § 1027(a) on these facts.

Impact and Practical Significance

Although nonprecedential, Prue is a strong reminder of best practices and legal constraints surrounding guilty pleas under disjunctive statutes.

• Theory‑specific admissions are essential. When a statute defines multiple alternative means of committing an offense, the court must pin down the State’s chosen theory and ensure the defendant personally admits facts that satisfy each element of that specific theory. Generalized references to affidavits, counsel proffers, or “somewhere in there” facts are insufficient without the defendant’s personal acknowledgement.
• Bridger controls Rule 11(f) on direct appeal. Practitioners should not assume the State can defend a defective colloquy by arguing lack of prejudice. If the record does not demonstrate a valid factual basis tied to a clear theory, the plea will be set aside.
• First Amendment overlays require precision. Where an element implicates the true‑threats doctrine, courts and counsel must be vigilant. If the State elects the “threat” prong, the defendant’s admissions (or the proffered facts) must fit the constitutional definition of a true threat. If the State elects the “repeated communications” prong, the colloquy must still establish the specific intent (to terrify, intimidate, threaten, harass, or annoy) and that the communications disturbed or attempted to disturb the recipient’s peace, quiet, or right of privacy.
• Open pleas heighten the need for clarity. In open pleas, absent plea agreements that spell out the theory and factual basis, the court’s on‑the‑record inquiry is the sole safeguard. Ambiguities, conditional answers (“I have to see it”), or counsel‑judicial cross‑talk that muddies the elected theory are red flags.
• Remedy is reversal and remand. If Rule 11(f) is not satisfied, the conviction is reversed and the matter remanded. The State may proceed, negotiate anew, or dismiss; double jeopardy does not bar retrial after reversal for a defective plea colloquy.

Complex Concepts Simplified

• Rule 11(f) (Factual Basis Requirement): Before accepting a guilty plea, the judge must ensure there are facts on the record that, if true, meet all legal elements of the crime. Critically, the defendant must personally acknowledge those facts.
• Disjunctive Statutes (Alternative Theories): Some crimes can be committed in multiple ways. The State must pick one theory for the plea, and the defendant must admit facts that satisfy that specific path.
• Open Plea: A plea without a negotiated agreement on charges or sentencing. This places a premium on a careful, complete colloquy because the record will be the only source showing what the defendant admitted.
• Probable Cause vs. Factual Basis: Probable cause is a low threshold for charging, often met through affidavits and hearsay. A factual basis for a plea is a higher, different safeguard: the court must be satisfied that the defendant’s own admissions align with every element of the offense.
• True Threats Doctrine: The First Amendment allows punishment of “true threats”—serious expressions of intent to commit unlawful violence against a particular individual or group. Not all offensive or harsh speech qualifies. If a case relies on a “threat” theory, admissions must satisfy this constitutional standard.
• Bridger Standard on Direct Appeal: For Rule 11(f) defects, Vermont requires no separate showing of prejudice because the flaw undermines the voluntary and intelligent nature of the plea. The question is whether the record demonstrates a valid factual basis and understanding of the elements as related to the facts.

Practice Pointers

For Trial Judges:

• Identify and state on the record the specific theory of the offense when the statute is disjunctive.
• Ask the defendant to personally describe, in their own words where possible, what they did that makes them guilty under that theory.
• Resolve any ambiguity immediately. If counsel asserts disputed facts or limits the plea to certain conduct, tailor the colloquy accordingly and avoid eliciting admissions on a different theory.
• Do not rely solely on affidavits; incorporate them by reference only if the defendant expressly adopts the pertinent facts and those facts map precisely onto the elected theory.

For Prosecutors:

• Elect a single theory for the plea and articulate how each element is satisfied by specific facts.
• Where a “threat” is the basis, ensure the statement qualifies as a “true threat” and that the defendant personally admits to making it.
• Avoid generic proffers (“the messages were threatening/intimidating”); identify the actual statements and their legal significance.

For Defense Counsel:

• If limiting the plea to a particular theory (e.g., a single “threat”), state that clearly; confirm that the court’s questions match that theory.
• Guard against the defendant agreeing to facts under protest or uncertainty (e.g., “I have to see it”). Request a recess to review disputed material if needed.
• Preserve constitutional objections to alternative theories the State attempts to use, especially where the First Amendment may be implicated.

Unresolved Issues Not Reached

• Whether a trial court’s earlier probable‑cause analysis (focused on one particular message) can or should constrain the permissible plea theory was not decided.
• The scope of First Amendment protections as applied to the repeated‑communications prong of § 1027(a) (as opposed to the “threat” prong) remains for another day.

Conclusion

State v. Prue reinforces bedrock principles of plea practice under Vermont Rule of Criminal Procedure 11(f). A guilty plea is valid only if the record shows that the defendant personally admits facts satisfying the legal elements of the offense under a clearly identified theory. When a statute is disjunctive, courts must specify the elected path and obtain admissions that map to that path. On direct appeal, Vermont’s Bridger framework governs these challenges without a separate prejudice requirement, because defects go to the voluntariness and intelligence of the plea.

Although issued as a nonprecedential Entry Order, Prue is an instructive blueprint for judges and practitioners: align the theory, the elements, and the defendant’s own admissions—or risk reversal and remand. The opinion’s careful application of Bridger, Gabree, Dunham, Lizotte, and Bowen underscores that Rule 11(f) is not a formality but a constitutional safeguard ensuring that a plea is knowing, voluntary, and factually grounded.