Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Scarola

Supreme Court of Vermont

December 8, 2017

State of Vermont
v.
James Scarola

         On Appeal from Superior Court, Chittenden Unit, Criminal Division

          Michael S. Kupersmith, J. (Ret.), Specially Assigned

          Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

          Charles S. Martin and Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Dooley, J. (Ret.), Specially Assigned

          REIBER, C.J.

         ¶ 1. Defendant appeals the denial of his motion to withdraw three pleas stemming from his alleged assault of his wife at their Burlington home. First, defendant argues that the trial court erred, to his prejudice, because it did not allow him to withdraw his pleas even though he did not know that he would be sentenced the same day as his change-of-plea hearing and there was neither a presentence investigation nor a personal waiver of that investigation by defendant. Second, defendant argues that he must be allowed to withdraw his plea because the court erroneously participated in the plea agreement process. We affirm.

         ¶ 2. In September 2013, defendant called 911 and reported that he had struck his wife and that she was "hurt pretty bad, " unconscious, and "gurgling blood." Burlington Police Department officers responded to the scene. According to police affidavits, defendant described that he had struck his wife in the head with a baseball bat after she had struck him. An officer at the scene further reported that the victim was found lying on a bed in a downstairs bedroom. There was blood "on the stairs" leading to the bedroom, "on the victim's bed where she was found, " and also "distributed on the walls and ceiling." Moreover, "there was an aluminum baseball bat present which appeared to have blood on it as well." After further questioning at police headquarters, officers arrested defendant for domestic assault. The State then charged defendant with aggravated domestic assault and attempted second-degree murder but later amended the attempted second-degree murder charge to attempted aggravated murder.

         ¶ 3. The court held a hearing on March 17, 2015, regarding a motion in limine and jury questionnaires. After the hearing, the court met in chambers with defense counsel and the State to discuss resolution of the case. The court suggested that twenty years to life could be a reasonable sentence. The next day, defense counsel met with defendant at the correctional facility where he was being held to discuss a potential plea agreement. They discussed whether defendant would accept a sentence of twenty years to life, as suggested by the court, but were unable to discuss the details of the plea agreement, which had not yet been addressed by the State. The meeting lasted most of the morning, and defendant was able to speak with his family by telephone. Defense counsel told defendant that he would need to make a decision within five days, by March 23, because trial was scheduled for April 1, and both parties needed time to prepare further. After speaking with his family about the issue, defendant told defense counsel that he was interested in a plea agreement calling for a sentence of twenty years to life.

         ¶ 4. The next day, defense counsel conferred with the State and indicated defendant's interest in a plea agreement. The State was open to a sentence of twenty years to life but insisted that defendant plead to not only the two original charges of aggravated domestic assault and attempted second-degree murder, but also to a third charge of sexual assault. Defendant was hesitant to plead to sexual assault but appeared more open to accepting the State's offer after the State reiterated its position that there would be no plea without the sexual assault component.

         ¶ 5. Defense counsel continued to discuss the plea with defendant and the State over the course of three days and made clear to defendant that if he accepted the plea agreement, it would be a "done deal" and he would serve twenty years to life. They did not discuss when sentencing would happen, or whether defendant would waive the presentence investigation for any of the charges. Defendant told his counsel that he would accept the plea agreement by pleading guilty to aggravated domestic assault and pleading no contest to attempted second-degree murder and sexual assault, and an agreement was readied.

         ¶ 6. On March 23, 2015, defense counsel and the State met in chambers to inform the court that they had reached a plea agreement. They discussed the appropriate time for sentencing, agreeing that sentencing could take place immediately for the first two charges of aggravated domestic assault and attempted second-degree murder but that sentencing for the sexual assault charge could not take place until the presentence investigation was completed, as required by statute. Following this conversation, defendant was presented at the courthouse with a written copy of the plea agreement, containing all the previously discussed terms. Defense counsel also informed him that he would be sentenced that day on the first two charges, and that he would be sentenced on the sexual assault charge after the presentence investigation was completed. The court then held a change-of-plea hearing and sentenced defendant to fourteen to fifteen years for the aggravated domestic assault charge and twenty years to life for the attempted second-degree murder charge, with both sentences to be served concurrently. The court deferred sentencing on the sexual assault charge pending the presentence investigation.

         ¶ 7. Three months later, defendant-through new counsel-filed a motion to withdraw his no contest plea to the sexual assault charge, followed two months later by an amended motion to also withdraw his guilty plea to the aggravated domestic assault charge and his no contest plea to the attempted second-degree murder charge. In the motions, defendant first noted that Vermont Rule of Criminal Procedure 32(d) allows for the withdrawal of pleas under certain circumstances. He argued: (1) "[h]e did not knowingly and intelligently enter into the plea agreement"; (2) "he was suffering from a high fever and the flu and did not fully understand the proceedings"; (3) "[h]e had inadequate time to fully understand the terms of the agreement"; (4) defense counsel did not "adequately explain the terms and conditions of the agreement"; (5) "[h]e did not understand that he was to be sentenced that day" for the aggravated domestic assault charge and the attempted second-degree murder charge; and (6) he did not understand that there would be no presentence investigation for those two charges.

         ¶ 8. On September 4, 2015, the court held a hearing on the motion, in which both defendant and his previous counsel testified. At this hearing, defendant further argued that he only accepted the agreement because he thought he would be able to present evidence in mitigation of his sentences.

         ¶ 9. The court issued an order on October 28, 2015, in which it determined that there was no evidence to support defendant's claims other than defendant's "own conclusory testimony." To the contrary, the court observed that there were several facts in the record indicating that defendant fully understood the plea agreement, knew that he would not have the opportunity to present evidence in mitigation of his sentences, and knew that his sentence would be twenty years to life. Those facts included: (1) defendant "discussed the terms and conditions of the plea agreement with his attorneys over a period of five days prior to changing his plea"; (2) "the written plea agreement contains no such proviso [regarding mitigation]: it says plainly that the parties agree that the [c]ourt impose a sentence of '20 years-life' "; (3) defense counsel told defendant that the plea agreement did not contain a provision allowing for mitigation and that accepting the plea agreement would mean that a sentence of twenty years to life was a "done deal"; (4) defendant responded "no" when he was asked multiple times during the change-of-plea hearing if anyone had induced him to accept the agreement and if he had any further questions for the court or for his attorneys; (5) on three occasions during the hearing, the court acknowledged defendant was feeling ill and the hearing could be rescheduled if he would prefer, but defendant repeatedly indicated he could think clearly and understand the proceedings; (6) the State mentioned in its sentencing argument that defendant would "serve two decades in jail" under the agreement, and defendant acknowledged that he knew that two decades was twenty years and did not protest this amount of time; and (7) "there was no possible prejudice to the Defendant" in that "it is not unusual for a court to sentence a defendant on the day of his or her change of plea, even in felony cases" and defendant did not object at the hearing when the court told him that it would "proceed with sentencing" on the first two charges.

         ¶ 10. The court further noted that the record indicated that defendant had not personally waived the presentence investigation for the first two charges; in other words, the waiver was done by defendant's counsel, not by defendant himself. The court determined, however, that completion of a presentence investigation "does not affect a constitutional right" and there is no requirement that a defendant-rather than his or her counsel, as occurred in this case-personally waive the investigation. It therefore held that because defendant "received the sentence that he had bargained for and that he had agreed to, " he experienced no prejudice from the lack of a personal waiver, so withdrawal of the pleas could not be made on that basis. It concluded its analysis of defendant's arguments by holding that defendant had failed to show a "fair and just" reason for withdrawal. In contrast, according to the court, the State would be prejudiced if defendant were allowed to withdraw his plea because it had agreed to an attempted second-degree murder charge rather than an attempted aggravated murder charge-which could have carried a life sentence-only because of defendant's change of plea.

         ¶ 11. Finally-after noting that defendant's new counsel raised the issue when questioning defendant's previous counsel during the motion hearing-the court addressed whether its role in the March 17, 2015, in-chambers plea discussions violated Vermont Rule of Criminal Procedure 11(e)(1). That rule provides that "[t]he court shall not participate in any [plea agreement] discussions, unless the proceedings are taken down by a court reporter or recording equipment." The court noted that its recollection of the discussions conformed with the testimony of defendant's previous attorney. It concluded that Rule 11(e)(1) was not violated. The court stated that it "outlined the strengths and weaknesses of the respective positions" and "simply 'floated' a suggestion" of twenty years to life, but "did not suggest details for the agreement" and did not "participate in any negotiations between the parties." I.

         ¶ 12. Defendant first argues that the superior court erred, to his prejudice, because it did not allow him to withdraw his pleas even though he did not know that he would be sentenced the same day as his change of plea and there was neither a presentence investigation nor a personal waiver of that investigation by defendant. In support of these arguments, defendant contends that: (1) the right to have a presentence investigation conducted belongs to a defendant personally, so any waiver of that presentence investigation can only be made by a defendant personally, not by his or her attorney; (2) this claimed right is relevant to defendant's case because if defendant had had an opportunity at allocution after completion of a presentence investigation, then the court may have imposed a lower sentence; and (3) because the court was required to order a presentence investigation, defendant's sentences for aggravated domestic assault and attempted second-degree murder are not valid, so defendant could not have been considered in custody and under sentence when he filed his motions to withdraw.

         ¶ 13. Our analysis of defendant's argument rests on the interaction of several provisions of the Vermont Rules of Criminal Procedure. In combination, these rules require the court to pay careful attention to the stage in the process when a defendant moves to withdraw. Motions to withdraw are not allowed under our rules if the defendant is already serving his or her term of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.