STATE OF VERMONT SUPERIOR COURT CRIMINAL DIVISION FRANKLIN CRIMINAL DIVISION DOCKET NO: 481-5-15FRCR STATE OF VERMONT V. Norman McAllister, Defendant STATE'S RESPONSE TO MOTION TO WITHDRAW PLEA NOW COMES the State of Vermont, by and through its attorney, John Lavoie Esq., and asks that defendant’s motion to withdraw his plea be denied. The defendant has failed to provide a fair and just reason to withdraw is plea, This matter came on for jury selection on January 10,2017, Trial was scheduled to begin the following the day. On the Friday preceding the Tuesday of jury selection, defense counsel for the defendant solicited an offer of settlement, The State responded by offering dismissal of the prohibited act charges with an open plea to the charge of sexual assault, On January 10, defense counteroffered a plea to the two prohibited act, charges with dismissal of the sexual assault charge, The State, after extensive consultation with the putative victim, counteroffered a plea to two prohibited acts and a plea with an amended charge of lewd and lascivious conduct with an open sentencing following a pre-sentence investigation. This offer was accepted. By the time the offer ‘was accepted, the parties had spent the entire day in jury selection, ‘The court engaged in a lengthy plea colloquy with the defendant, the court accepted the defendant's no contest pleas, Pursuant to Rule 11, the defendant acknowledged the voluntariness of his pleas and conceded that if the jury were to believe 1the State’s evidence, he could be found guilty of the charges against him. During the plea colloquy, the court specifically inquired whether the defendant was aware that, despite his no contest pleas, he would, as a precondition to any sex offender treatment, be required to admit that he had engaged in the conduct described as part of the factual basis for his pleas. Defense counsel and defendant acknowledged this reality. The defendant, through new counsel, now asserts his innocence and alleges that he was pressured by his former attorneys to change his plea. The defendant does not have a “right” to withdraw his plea. State v. Scelza, 134 Vt. 385 (1976). Rather, he has the burden to demonstrate a “just and fair” reason that In Re Mossey, 129 Vt. 133 (1971); V.R.CrP. 32(d). would support withdrawal, Id. This matter should therefore be set for an evidentiary hearing at which the defendant will be required present evidence supporting his assertioris. Whether the defendant should be allowed to withdraw his pleas will left to the discretion of this court, Scelza, 134 Vt. at 385; State v. Merchant, 173 Vt. 249, 256 (2001). Even if the court were to credit the defendant’s assertions, any reason put forward by the defendant must outweigh any substantial prejudice to the State. The State would suffer substantial prejudice if the defendant is allowed to withdraw his plea, First the parties went through an entire day of jury selection. No other juries could be selected on that day. The entire jury panel, a larger one than normal because of the nature of this case and pretrial publicity, can no longer be used. The putative victim, who was previously prépared to go to trial, will suffer the additional emotional upset of preparing for trial again, The additional publicity gamered by the defendant’s change of plea will make future jury selection even more difficult, Even a change of venue may not cure thisprejudice because of the extent of the publicity. It appears the defendant seeks only to delay trial, Wherefore, the State requests that this matter be set for an evidentiary hearing on defendant’s motion. DATED: January 23, 2017 cc: Robert Katims JAN 26 2017