STATE OF VERMONT SUPERIOR COURT ‘CRIMINAL DIVISION Franklin Unit Docket No. 481-5-15 Fror State of Vermont ron 32 ‘Norman MeAllister, ue Defendant ‘ sor Court bess Ut DECISION AND ORDER: DEFENDANT'S MOTION TO WITHDRAW PLEA On January 23, 2017, Defendant Norman McAllister, filed a Motion to Withdraw Plea following entry of plea on January 9, 2017. Defendant's Motion to Withdraw Plea came on for hearing on February 3, and 24, 2017. The defendant is represented by Attorney Robert Katims. ‘The State is represented by Attomeys John Lavoie and Diane Wheeler. Based upon the evidence presented and memoranda fled by counsel, the Court makes the following findings and ordor. 1: Findings of Fact On or about May 8, 2015, the Sate charged Defendant with three counts of Prohibited ‘Acts (Counts 1-3), and three counts of Sexual Assault (Counts 4-6), involving three alleged ‘victims. The present matter involves Counts 2~4, which include two counts of Prohibits Act, ‘and one count of Sexual Assault, allegedly committed against “victim 2". On May 6, 2016, the ‘Court severed Counts 5-6 from the other charges, and ordered that Counts $-6 proceed to tril ‘On June 16, 2016, after the trial commenced, the State dismissed Counts 5 and 6.' In the present matter, Counts 2-4 were scheduled for a pretrial hearing on January 9, 2017, and jury selection on January 10,2017. The tril was scheduled to commence on January 11,2017. Immedistely following completion of the jury selection, the parties notified the Court * Couns 5 an involved allegations tht Defendant commited sexual sult agaist vit #3" In Coun the ‘tat lleged tha Defendant slit “Victim #1” fo “prositatn, lewd, or sigaton, in violation of ths alte" Protbed Act). The complaining witness ("Vim 11) in fat mater now deceased, Page 1 of 10‘of «proposed plea agreement. The plea was taken by the Court on that same date. Defendant centered a no contest plea to an amended count of Lewd and Lascivious Conduct, and two counts ‘of Prohibited Acts. The Court accepted the pleas and ordered that a presentence report and psychosexual evaluation be conducted. The agreement allowed forthe parties to argue forthe imposition of any legal sentence. ‘On January 23, 2017, new counsel for Defendant entered his appearance, and concurrently fled Defendant's Motion to Withdraw Plea. The State objects to the motion. ‘The Court has heard testimony from Defendant and Defendant's former counsel, ‘Attorneys Brooks MeArthur and David Williams, Defendant asserts that he retained his original counsel with the understanding that he would not accept a plea to any ofthe charges against him. Counsel likewise agre that initially Defendant indicated he didnot intend to enter a plea and ‘would continue to assert his innocence, Counsel did also acknowledge that they were ethically equited to convey any settlement offers made by the State to thei client. In the present mater, as in most criminal proceedings, plea offers were made by the State, including a preliminary offer (Discover affer) which wns conveyed by counsel tp Defendant, hut rejected. Counsel recalls that a subsequent offer was made by the State in February of 2016, which was also rejected by Defendant, No substantial plea negotiations took place until the day of jury selection, Defendant did not give counsel authority to solicit offers prior to that day. Defendant met with counsel the day prior tothe jury selection, At that meeting were Attomeys McArthur and Williams, Defendant, and fora period of ime, Defendant's son Daring the meeting, an audio recording ofa telephone conversation between Defendant and the complaining witness was played, Counsel expressed to Defendant that they were concerned about the impact of the recording, and made clear to Defendant that they considered the State’s case to be strong. After hearing the recording, Defendant's son apparently told his father that he should accept any offer made by the State, Defendant's son then changed his postion regarding the recording, dismissing it as having litle consequence. The meeting ended with no prospect that an agreement would be reached. ‘The following day, January 10, 2017, during the morning of the jury drawing process, counsel met with Defendant to discuss @ possible ples. Defendant agreed that counsel could Page 2 of 10‘convey othe State that he would accept a plea agreement whereby he would enter a plea to one ‘count of Lewd and Lascivious Conduct, and two counts of Prohibited Acts? However, a cision was made by counsel to extend an offer to a plea of two counts of Prohibited Acts (misdemeanors), That offer was conveyed tothe State, but was rejected. The State then made a ‘counteroffer which involved a charge of Human Trafficking, which was rejected by defense counsel with apparently little discussion. ‘The jury selection was concluded at approximately 3:45 p.m, The partis then informed the Court tha they were continuing to engage in plea negotiations, and requested thet the Court remain available to accept a possible plea lat in the day. At approximately 4:45 pm., proceedings resumed with a change of plea hearing. The Court took the plea, and the change-of- plea hearing concluding at approximately 5:12 p.m, During the evening hours following the jury selection and plea hearing, Attorney ‘MeArthur was contacted by Defendant. Defendant indicated thet he had concerns about the plea and inquired about the possibility of withdrawing his plea. Counsel informed Defendant that such a request would need to be filed by new counsel. Defendant's Motion to Witharaw Plea ‘was thereafter filed by new counsel Defendant states that his original counsel exerted undue pressure to convince him to change is plea. He claims that both of his attomeys were demeaning to him, that they “brow ‘beat him into agreeing to a ples, and that he was under extreme duress when he signed the ples agroement. Defendant asserts that he felt compelled by hs attomeys to enter the plea, He also suggests that counsel filed to adequately advise him ofthe consequences ofthe plea regarding admissions which would be required to complete any sexual offender programing, Attorneys MeAsthur and Williams reject Defendant's assertion that they pressured Defendant or made any demeaning comments to him in an effort to convince Defendant t0 change his plea. ‘The Court finds the testimony ofboth counsel on ths issue tobe credible Defense counsel appropriately advised Defendant regarding the risks involved in proceeding to ‘tial including candid discussions regarding the strength ofthe State's case. No doubt Defendant * Defendant dos not knowledge that he made such aconesion, however the Cou finds couse!’ recollection of evens to be more acct on issue Page 3 of 10{elt some amount of pressure and anxiety given the gravity of te situation andthe timing ofthe discussions, However, counsel didnot create or use the opportunity to unfairly intimidate Defendant, Further, the Court finds that counsel provided adequate legal representation by advising Defendant ofthe consequences ofthe plea, including possible sentencing options, sex offender registry requirements, and any admissions to offense conduct that would need to be sade during the presentence investigation process and thereafter with regard fo sexual offender programing ‘Yet, notwithstanding the high level of legal representation afforded Defendant, the Court finds that Defendant did not adequately understand the consequences ofthe plea. Defendant inially ejected the plea offer made after the conclusion ofthe jury selection. The record reflects ‘hat counsel devoted a substantial amount of time discussing with Defendant the potential impact cof a conviction upon a pending civil litigation involving Defendant and the complaining witness. Defendant was intent on preserving his family farm and was concemed that a conviction could adversely affect his ability to maintain his ownership ofthe farm. Counsel explained to Defendant that «no contest plea could not be used as an admission in the civil litigation. After that discussion, Defendant agreed to accept the plea. ‘The Court does find that while the parties were fairly attempting to resolve a difficult case, plea negotiations were taking place at the end of along day of jury selection, and with some sense of urgency given thatthe trial was to commence the following day, Te final negotiations were concluded within an hour. While itis not unusual for ples negotiations to ‘cour inthis manner, from Defendant's perspective, the plea process was rushed, Page 4 of 10Uk: Conclusions of Law ‘Vermont Rule of Criminal Procedure 32(4) provides that {a} motion to withdraw a plea of guilty or of nolo contendere may be made only by 1 defendant who is notin custody under sentence. The motion must be made prior to or within 30 days after the date of entry of judgment. V.R.CeP. 32(4). Defendant made his motion within thirty days of the entry of his plea, and was notin custody under sentence a the time he made such motion. Defendant is also awaiting sentence on hs plea. A presentence motion to withdraw a guilty plea may be granted where the defendant “shows any fei and just reason and that reason substantially outweighs any prejudice which ‘would result tothe state fiom the withdrawal ofthe plea” State v. Merchant, 173 Vt. 249, 256 (2001) (quoting V.R.CrP. 32(4). Rule 32() is taken from the federal rule, and “in gener, the federal courts have granted motions to withdraw before sentence with great liberality.” Reporter's Notes, V.R.CrP. 32; see State v: Dove, 163 Vt. 429, 431 (1995) (presentence motion to withdrave guilty plea isto be “liberally granted where the reason i fir and just and the prosecution hes not relied on the pleat its substantial prejudice” (quotation omitted). “Rule 32(@) gives the trial court the discretion to balance the State's interest in expediting the criminal proceedings with the detriment tothe defendant in foregoing his right oa trial on the merits.” Merchant, 173 Vt. at 256 (citing State v. Hamlin, 143 Vt. 477,480 (1983). “The withdrawal of a gully plea is nota matter of right but is within the sound discretion of the court.” State v, Seelza, 134 Vt. 385, 385 (1976). The burden is upon Defendant ro produce evidence sufficient to establish the facts which he alleges entitle him to relief 1d. “The testis an objective one; if defendant's justification for withdrawal is unreasonable under the circumstances, the motion should be denied.” State w. Fisk, 165 Vi. 260, 262 (1996). A: Fairand Just Cause [Appellate courts have laid out factors toe considered by tril court for determining whether a Defendant has asserted a “fair and just” cause for withdrawing his plea, including: Page 5 of 10(1) whether the defendant has asserted his or her legal innocence in the mation to Withdraw the guilty plea; (@) the amount of time that has lapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); (@) whether the accused had the benefit of competent counsel at al mes; and (4) whether the defendant understood the terms of the plea agreement and the consequences of the plea ‘See United States v. Rosen, 409 F.3d 535, 546 (2d Ci. 2005) (Fctors 1 & 2); Tibbs v. United ‘States, 106 A.3A 1080, 1085 (D.C. 2015) (actors 1-8); State v. Vivian, No, 2012-051, slip op. at 4 (Vt Dee, 13, 2012) (unpublished mem), available at 2012 WL 6633847 (factors 3 & 4). sto the first factor, Defendant has maintained his legal innocence tothe charges thoughout the pendency of this case. Indeed, Defendant at first rejected the plea to which he ultimately pled, citing his innocence. Even in pleading tothe charge, Defendant entered a plea cof nolo contendere, nota plea of guilty? “By pleading nolo contendere, a defendant aserts that hae does not contest the issue of his guilt or innocence of a specific, charged act, and, thus, he may be adjudicated guilty of the charged conduct.” State v. Katon, 168 VE. 274, 2/9 (1998) Moreover, both Defendant and his counsel testified to Defendant’s repeating during his plea colloquy that he could not believe he was doing this, supporting his present argument that he has never wavered in his assertion of legal inocence. “An assertion of legal innocence standing alone does not, of course, require that a motion o withdraw a guilty plea be granted,,..buta claim of innocence i an important factor to be ‘weighed by the til judge in deciding whether, in the exercise of discretion, a motion to withdraw a guilty ples, under the fair and just standard should be granted.” Tibbs, 106 A.3d at 1085 (citations, quotation marks, and alterations omitted); see United States v. Barker, $14 F.2d 208, 220 (D.C. Cir. 1975) [Where the motion does assert legal innocence, presentence ut ee Fk, 165 Va 262 (“A ple of noo contendere, however, nat claim of inocenc under thee. The rule provide hate nolo pes ‘shal ave the sme eet pen of gully” except thas inadmissible aginst the ‘ef in subsequent eviminal rev proceedings. VCE. P. 11), (@S). Accordingly, nolo ple authorizes ‘hs cout to tet the defendant ae though he ful”). While he Cou aare of wha nolo plea means inthe ‘je ofthe athe ced testimony of Defendant and hi tloreys suggests hat when Defendan took the ples, ts was ls focused on the raifistions tht the ples a in is cimial ese and more cncerbed with how any ‘ple might pct salty to defend aginst the evi suit led by the complainant inthis ueen. The Cour nds fhe Defendant oo the no ents pen lrg pat o protect hs nen of his fn Page 6 of 10‘withdrawal should be rather freely allowed.). Thus, the frst factor weighs in favor of allowing withdrawal. ‘As to the second factor, Defendant almost immediately expressed his intention to ‘withdraw his plea, Defendant contacted Attorney McArthur that night, and spoke with him the next day. He began secking new counsel to submit his plea the day ater his plea was entered His withdrawal motion was submited ten days after entry of his no contest plea. As stated by the D.C. Circuit Court in Barker, ‘Even where the plea was properly entered...the standard for judging the movant’s ‘reasons for delay remains low where the motion comes only a day or so after the plea was entered... A swift change of hear is itself strong indication thatthe plea ‘was entered in haste and confusion; furthermore, withdrawal shortly after the event will rarely prejudice the Government's legitimate intrest. ‘514 F.24 at 22, The second factor, therefore, als favors allowing withdrawal. ‘As to the third factor, the Court finds that Defendant had the full benefit of eompetent counsel at all times. However, even the most competent counsel is useless toa defendant who, {or whatever reason, does not comprehend the advice given or information relayed. Indeed, the ‘majority of the testimony at the hearings concerned Defendant's counsels” advice or lack thereof ‘nthe particular issue ofthe probation consequences of taking a no contest plea inthe context of sexual assault charge. This testimony goes tothe fourth factor, and unfortunately, this specific issue isnot a new one. See, e.g, Katon, 168 Vt. at 278-79 (“Though we conclude that revocation of defendant's probation was not error, this cas ilustrates why a plea of nolo contendere in an assault case may produce a heightened likelihood of misunderstanding and contribute tothe need for further court proceedings. While courts have discretion in aceepting a nolo contendere ples, see V.R.CrP. 11(6) (nolo contendere plea may be entered only with the consent of the court, the fi inmany cases, spawn charges of violation of probation based on a defendant's refusal to re fo require a specific admission of guilt when taking a plea, may, specifically admit his criminal behavior as part of his required participation in educational or rehabilitative programs. See State v. Fisk, 165 Vt. 260, 264-65...(1996) (Dooley, 1. dissenting) (questioning appropristeness of accepting nolo contendere pleas in sexual abuse and assault cases). Page 7 of 10‘As noted in the findings, the Court finds redible the accounts of Mr. MeAthur and Mr. Williams of the counsel they gave to Defendant on the issue. However, the Court also finds credible Defendants testimony that he did not fully comprehend what was said to him, and thos id not understand the import of the stated factual basis forthe plea and its potential probation consequences. This isnot to say that Defendant was incompetent or incapable of understanding the information that was conveyed; rather, under the intense pressure ofa plea negotiation taking place in the waning hours of the afternoon after a full day of voir dire, the Court finds credible that Defendant was not fully taking in the complete ramifications ofthe situation as presented to him, See Fisk, 165 Vt at 263 (“To support withdrawal of the plea, a defendant must provide “objective evidence to demonstrat that his subjective misunderstanding was reasonable.”) Defendant testified and his counsel admitted, tha atthe time ofthe plea discussions, Defendant ‘was primarily focused on the benefits a no contest plea might provide him in defending against the civil suit and protecting his farm as an inheritance for his children. The Cour init colloquy also neglected to inquire ofthe Defendant personally concerning this issue, relying instead on the affinmation of counsel, The fourth factor, thus, also weighs in favor of withdrawal ‘The Cour finds that Defendant has presented a fair and just cause for withdrawal of his plea. Therefore, the Court must consider whether the State has made a showing of prejudice should Defendant be allowed to withdraw his plea BB: Prejudice tothe State The State asserts that should Defendant be allowed to withdraw his plea it would suffer prejudice, First, the State wasted time and resources preparing for and participating ina jury voir ire and selection. Second, by having gone through this process, an entire pool of jurors has been tainted, necessitating, perhaps, a change of venue for trial. Third, the State's primary witness will suffer having to prepare for trial again. ‘The Court does not deny that efforts have been wasted on the pat of all parties, including Defendant. Nor does the Court deny that the jury pool seated previously in this matter has been tinted. However, the voir dite was not a particulary di ‘one day's efforts, Itis certainly not clear at this point that no pool of jurors could be selected cult one, anda jury was seated after ‘rom this county to hear the State's case against Defendant, Page 8 of 10Finally, the Court is not unsympathetic to the complaining witness's feelings; however, such disappointment is germane to any case which proceeds to a plea that the defendant later seeks to withdraw, This isnot a situation in which a witness has died or become unavailable for testimony, as was the case in State v. Shannon, Nos. 2014-404 & -40S, slip op. at 1,3 (Vt Jul, 2015) (unpublished mem.), available at 2015 WL 4644154 (finding prejudice to the State {justifying the trial courts denial of defendant's motion to withdraw his plea where the State's key witness had died in the interim), ‘The Cour, therefore, finds thatthe State has nat produced, any evidence of prejudice specific to this case justifying the denial of Defendant's otherwise worthy motion, : Conclusion ‘As the Vermont Supreme Court stated in State v. Belanus: Although withdrawal ofa plea of guilty or nolo contendere is within the diseetion ofthe sentencing judge, Sate v. Crass, 142 Vt. 44, 46... (1982);...Seelza, 134 Vi [at] 386... that diseetion isnot absolute, It must be exercised liberally in favor of ‘withdrawal ofthe plea. See Reporter's Notes, V.R.Cr.P. 32 144 Ve. 166, 169-70 (1984). Put differently, the Constitution guarantees to all criminal defendants the right toa trial by judge ‘or jury, or, put another way, the ‘right not to pleed guilty... This and other federal rights may be waived through a guilty plea, but such waivers are not lightly presumed and, in fact, are viewed with the ‘utmost solitude’... Given thisy 1 believe that where the defendant presents a reason for vacating his plea and the ‘government has not relied on the plea to is disadvantage, the plea may be vacated and the righ to rial regained atleast where the motion to vacate is made prior to sentence and judgment Sansobello v. N.Y.,404 U.S. 257, 267-68 (1971) (Marshall, J, concurring in part and dissenting in pat) (intemal citations omitted, Given Defendant's showing ofa fair and just eause forthe withdrawal of his plea, and that this cause substantially outweighs any showing of prejudice to the State, the Court grants Defendant's motion. Page 90f 10Uk: Order For the reasons stated, the Court GRANTS Defendant's Motion to pursuant to V.R.CEP. 32(8). ‘The matter will be scheduled on the next available pretrial and jury draw. A status ‘conference will beset on a date prior to determine the parties’ availability as to potential trial dates. $0 ORDERED, in St. Albans, Vermont, on this 25nd day of Maseh, 2017, afaa/(F UY : Dal vibes May eee Super Cour Judge Page 10 of 10