Interlocutory appeal asking whether lay Judges acted beyond their jurisdiction in rejecting a plea agreement and whether the rejection violated defendant's constitutional rights. Chittenden Superior Court, Morse, J., presiding. Questions answered in the negative.
Mandate Stayed May 29, 1984; Dissolved November 2, 1984
Present: Billings, C.j., Hill, Underwood, Peck and Gibson, JJ.
1. Courts--Assistant Judges--Participation
Assistant Judges have authority to participate in the trial of a criminal case in superior court. V.R.Cr.P. 54(c)(1)(ii).
2. --Plea-Bargaining--Court's Duties
One of the functions of Judges, in accepting or rejecting a plea agreement, is to insure the appropriateness of the correctional Disposition reached by the parties and to guard against any tendency of the prosecutor to overcharge or to be excessively lenient. V.R.Cr.P. 11(e).
3. --Plea-Bargaining--Acceptance or Rejection of Agreement
A trial court is not bound to accept a plea agreement. 13 V.S.A. § 6565(b) ; V.R.Cr.P. 11(e)(4).
4. --Plea of Guilty--Acceptance and Rejection
A court may reject a plea of guilty in the exercise of its sound judicial discretion.
5. Courts--Assistant Judges--Participation
Supreme court's holding in State v. Dunkerley,
The opinion of the court was delivered by: Underwood
We are called upon to decide a question of first impression in Vermont: whether two lay assistant Judges of the superior court, *fn1 constituting a majority of the superior court, have the power to overrule the lawyer trained, presiding Judge by rejecting a proffered plea bargain agreement.
The defendant is charged with first degree murder; he has pled not guilty and has raised the defense of insanity or diminished mental capacity. Prior to trial the state's attorney, the defendant's attorney and the defendant each signed an instrument entitled Plea and Sentencing Agreement (Agreement), which they submitted to the Chittenden Superior Court for its acceptance. V.R.Cr.P. 11(e). Pursuant to the Agreement, should the court agree to impose a minimum sentence of no more than ten years, and a maximum sentence of its own choosing, the defendant would agree to enter a plea of guilty to an amended charge of second degree murder.
The presiding Judge would have accepted the Agreement for three reasons: first, it might be difficult for the State to prove premeditation; second, it might be difficult for the State to prove that the defendant was sane at the time of the offense; and finally, the State may have seized evidence against the defendant in violation of his constitutional guarantees. Although the presiding Judge had previously denied the defendant's motion to suppress the evidence, he felt the final outcome on his ruling, if overturned on appeal, could deprive the State of the evidence necessary to prevail at trial.
The two assistant Judges, comprising a majority of the court, rejected the Agreement, apparently because they could not condone the minimum sentence provision. Consequently the presiding Judge noted upon the record, "The judgment of the Court is that the plea agreement as proposed is rejected." The presiding Judge did not contest the assistant Judges' authority to reject the Agreement.
Defendant moved for permission to appeal the ruling pursuant to V.R.A.P. 5(b). The State joined with the defendant in the motion. The controlling questions of law for review as set forth in the motion were substantially as follows:
1. Did the lay Judges act beyond their jurisdiction, *fn2 as defined by State v. Dunkerley [ 134 Vt. 523, 365 A.2d 131 (1976)] and V.R.Cr.P. 54, in rejecting a plea agreement involving legal issues?
2. Are the defendant's rights to counsel and due process denied by giving lay Judges jurisdiction to overrule a lawyer Judge and reject a plea agreement involving legal issues?
3. Does rejection of the plea agreement by lay Judges violate the defendant's right to equal protection?
The motion for permission to take an interlocutory appeal was granted. Thereafter both the State and the defendant filed briefs arguing that only the presiding Judge could accept or reject the Agreement. Amicus curiae briefs also supporting the exclusive power of the presiding Judge to make the ruling were filed by Vermont Chapter of the American Civil Liberties Union and by the Vermont Bar Association. An amicus curiae brief supporting the authority of the two assistant Judges to reject the Agreement was filed by the Vermont Association of Assistant Judges.
On appeal the defendant and the State both argue that the assistant Judges, who are lay Judges, *fn3 exceeded their authority when they overruled the lawyer trained presiding Judge by rejecting the Agreement because it involved legal issues. To support their position they rely heavily upon State v. Dunkerley, 134 Vt. 523, 365 A.2d 131 (1976), and V.R.Cr.P. 54(c)(1)(ii).
Dunkerley, which involved a prosecution for first degree murder, also came before this Court on an interlocutory appeal. Although the defendant in Dunkerley challenged the constitutionality of permitting lay assistant Judges to participate in a murder trial at all, we narrowed the issue on appeal as follows:
Is it a violation of due process to conduct a trial before a court consisting of a majority of lay Judges authorized to adjudicate matters of law as well as fact?
Id. at 524, 365 A.2d at 131. The Court held that:
the possibility of a lay majority ruling on questions of law in a trial is a sufficient deviation of due process to require proscription.... herefore, the Assistant Judges must be disqualified from participation in the legal issues relating to trial.
Id. at 526, 365 A.2d at 132 (emphasis added). *fn4
 Dunkerley in no way limited the authority of assistant Judges to participate in deciding questions of fact in the sentencing process or in exercising judicial discretion in criminal cases. Shortly after the decision was handed down, the Supreme Court amended V.R.Cr.P. 54(c)(1)(ii) as follows:
In superior court cases all questions of fact appropriate for decisions by the court shall be determined by a majority of the Judges, who shall also determine the facts involved in mixed questions of law and fact. Application of the law to the facts so found shall be determined by the Presiding Judge in each instance.
V.R.Cr.P. 54(c)(1)(ii). See Reporter's Notes (1976 Amendment). Thus, it is readily apparent that assistant Judges have authority to participate in the trial of a criminal case in superior court, subject to specific limitations imposed on their authority by Dunkerley and by V.R.Cr.P. 54.
The litigants and the amicus curiae briefs seem to agree on these principles: (1) the assistant Judges are disqualified from deciding legal issues in criminal cases; (2) the assistant Judges may decide factual issues in criminal cases; and (3) absent a plea bargain agreement, the assistant Judges may participate in the sentencing procedures. The area of disagreement involves acceptance or rejection of plea bargain agreements, which, some seem to infer, raise issues of law or at least mixed questions of law and fact. Only the briefs of the Assistant Judges' Association and the Vermont Bar Association point out that acceptance or rejection of the plea bargain agreement may only call for an exercise of discretion.
Although disputes of fact and of law may very well have been the impetus for plea bargaining between the parties, the Agreement itself, which was the culmination of those negotiations, contained no legal issues for the trial court to resolve in conjunction with its acceptance or rejection. The presiding Judge had already ruled as a matter of law after suspension hearings that the purported murder weapon and the alleged confession of the defendant should be admitted into evidence at the time of trial.
Nevertheless, the State and the defendant contend that acceptance or rejection of the Agreement calls upon the ability of the lay assistant Judges to recognize and understand the impact on this case or relevant case law, statutes, and federal and state constitutional standards. In addition, they argue, the lay Judges must be able to evaluate the State's ability to prove the defendant's guilt beyond a reasonable doubt as well as to evaluate the merits of defendant's plea of not guilty and his defense of insanity or diminished mental capacity. Because of the complexity of these evidentiary and constitutional issues, both the State and the defendant insist that only a lawyer trained Judge would be able to weigh intelligently and propriety and fairness of the Agreement.
 The amicus curiae brief filed by the Vermont Association of Assistant Judges contends that the posture in which the Agreement was presented to the court did not call for a ruling of law, but rather for an exercise of discretion. It is further claimed in the brief that the reason the two assistant Judges rejected the Agreement was because they focused exclusively on its Dispositional or correctional phase--that is, whether a minimum sentence of ten years was appropriate in exchange for a plea of guilty to a reduced charge of second degree murder. It appears that the question foremost in their minds was whether upon his conviction for second degree murder the defendant should be sentenced to a minimum term of incarceration for ten years, or whether this sentence was too lenient. The same brief presupposes that the assistant Judges in rejecting the proffered Agreement were aware that the litigants in drafting and executing the Agreement had taken into account the defendant's defense of insanity or diminished mental capacity, as well as the questionable admissibility of the murder weapon and defendant's confession, and therefore the only remaining issue for them to consider was the sentencing provision of the Agreement. We are mindful that one of the functions of Judges, in accepting or rejecting a plea bargain agreement, "is to insure the appropriateness of the correctional Disposition reached by the parties and to guard against any tendency of the prosecutor to overcharge or to be excessively lenient... " The Challenge of Crime in a Free Society, A Report by the President's Commission on Law Enforcement and Administration of Justice 136 (1967). Neither the litigants nor the amicus briefs have cited any instance where the assistant Judges have been excluded from participating in sentencing procedures which required the exercise of judicial discretion.
[3, 4] The trial court is not bound to accept a plea agreement. State v. Reuschel, 131 Vt. 544, 561-62, 312 A.2d 739, 743 (1973). See V.R.Cr.P. 11(e)(4); 13 V.S.A. § 6565(b). A court may reject a plea of guilty in the exercise of its sound judicial discretion. Santobello v. New York, 404 U.S. 257, 262 (1971). Santobello involved a guilty plea based on a plea bargain agreement. Id. at 261-62. With these principles in mind, we look to see whether Dunkerley or Rule 54 prohibits the participation of assistant Judges in rejecting the Agreement.
[5, 6] As previously noted, Dunkerley only limited assistant Judges from ruling on legal issues raised during a criminal trial; it did not address issues calling for resolution by the exercise of judicial discretion. Therefore, Dunkerley is not controlling and imposes no limitations on the assistant Judges' exercise of judicial discretion in passing on the acceptance or rejection of the Agreement proffered to the full court in this case. V.R.Cr.P. 54(c)(1)(ii) tracks Dunkerley, but goes one step further and permits the assistant Judges to participate with the presiding Judge in determining the facts involved "in mixed questions of law and fact, [ a ] pplication of the law to the facts so found shall be determined by the Presiding Judge in each instance." (Emphasis added.) Thus, in order for Rule 54(c)(1)(ii) to govern a particular situation, there must be facts to find and law to apply. This is not the case in accepting or rejecting the Agreement here. Neither the State nor the defendant has suggested that the court should have made findings of fact when the Agreement was offered and rejected. Similarly they have nowhere suggested that any Conclusions of law then be derived from facts found. Rule 54(c)(1)(ii) applies to situations such as a motion to suppress evidence where first facts must be found and then law applied. Accepting or rejecting the Agreement in the case at hand involves nothing of this sort and, therefore, is not subject to the dictates of V.R.Cr.P. 54(c)(1)(ii).
We note that the Agreement considered below involved a reduction in the charge from first decree to second degree murder and a sentencing concession providing for a minimum term of ten years imprisonment, in exchange for a plea of guilty. The record discloses the following statement by the presiding Judge:
majority of this Court has voted to reject the plea agreement, primarily in that part of the agreement that deals with the minimum sentence. And, therefore, the judgment of the Court is that the plea agreement as proposed is rejected.
Thus, the record indicates that the assistant Judges focused on the minimum sentence, although of course their rejection went to the entire Agreement. In this context, their rejection of the Agreement was an exercise of judicial discretion. Neither the State nor the defendant argues that Rule 54(c)(1)(ii) or Dunkerley precludes the assistant Judges from exercising judicial discretion.
 Judicial discretion was well defined by a federal court some years ago. "'Discretion' of course means 'sound discretion,' not discretion exercised arbitrarily, but with due regard for that which is right and equitable under the circumstances, and directed by reason and conscience to a just result." United States v. D'Argento, 227 F. Supp. 596, 600 (N.D. Ill. 1964). Although D'Argento involved an exercise of discretion on a motion to set aside or remit a forfeiture of bail bond, we feel that its definition is applicable to this case.
[8, 9] Our Court has previously identified the discretionary nature of accepting or rejecting pleas.
While respondent... has no right to insist on the acceptance of a plea of guilty, the court, nevertheless, in the exercise of its discretion, has the power to accept such a plea, if it deems it wise to do so. A tendered or offered plea should not be refused without good reason but, if refused, must be shown that the court abused its discretion.
State v. Reuschel, supra, 131 Vt. at 561-62, 312 A.2d at 743 (emphasis added) (citation omitted). We see no difference between the discretionary nature of accepting or rejecting a plea based on a plea bargain agreement and the discretionary nature of accepting or rejecting a plea based on other considerations. This is consistent with F.R.Cr.P. 11(e), after which Vermont's rule is patterned: "The plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement. Such a decision is left to the discretion of the individual trial Judge." F.R.Cr.P. 11(e) 1975 advisory committee note (reprinted in 8 J. Moore, Moore's Federal Practice Para. 11.01, at 11-16 (2d ed. 1983)); accord 8 J. Moore, Moore's Federal Practice Para. 11.02, at 11-15 (2d ed. 1983). For a recent Discussion of the discretionary nature of accepting or rejecting plea bargain agreements, see United States v. Miller, 722 F.2d 562, 563-66 (9th Cir. 1983) (remanded for failure to exercise discretion).
 There has been no allegation or showing of abuse of discretion by the assistant Judges below. When the presiding Judge in the case before us spoke of the rejection of the Agreement, he spoke for a majority of the court. A ruling such as this should reflect the discretion of the majority of the court unless specifically prohibited by the rule. Had the assistant Judges decided a question of law, we would have an issue to decide under the rule. But the record reveals no rulings by the assistant Judges on questions of law. Just because the presiding Judge had reservations about the validity of some of his previous rulings at suppression hearings, we cannot conclude that V.R.Cr.P. 54(c)(1)(ii) barred the exercise of judicial discretion by the full court.
The American Bar Association Minimum Standards on Pleas of Guilty contain a list of considerations appropriate for application by the trial court in determining whether it should accept or reject a plea bargain agreement:
(i) that the defendant by his plea has aided in ensuring the prompt and certain application of ...