State v. Fisk

682 A.2d 937, 165 Vt. 260, 1996 Vt. LEXIS 72

• Court: Supreme Court of Vermont
• Decided: May 10, 1996
• Docket: 93-545
• Status: Published

Opinions

Morse, J.

Defendant James Fisk appeals the district court’s denial of his motion to withdraw a plea of nolo contendere. His motion was premised on his alleged lack of awareness that his sentence for sexual abuse of a minor might require him to admit his guilt as a part of treatment or face incarceration. Defendant claims the trial court abused its discretion in denying his motion to withdraw. We affirm.

“[T]he court may permit withdrawal of [a nolo contendere] plea if the defendant shows any fair and just reason and that reason substantially outweighs any prejudice which would result to the state from the withdrawal of the plea.” V.R.Cr.P. 32(d). The trial judge has discretion when deciding whether to allow withdrawal. State v. Cross, 142 Vt. 44, 46, 451 A.2d 1149, 1150 (1982). The test is an objective one; if defendant’s justification for withdrawal is unreasonable under the circumstances, the motion should be denied.

Defendant asserts that he would not have pled nolo if he had known that he might be sentenced to sex offender treatment and be required to admit guilt. Defendant argued that he was denied important information that would have had a critical impact on his decision.

Defendant contends that although he has consistently maintained his innocence, the trial court and prosecutor have treated him “as if he had admitted his guilt.” A plea of nolo contendere, however, is not a claim of innocence under the rule. The rule provides that a nolo plea “shall have the same effect as a plea of guilty,” except that it is inadmissible against the defendant in subsequent criminal or civil proceedings. V.R.Cr.P. 11(b), (e)(5). Accordingly, a nolo plea authorizes the court to treat the defendant as though he is guilty. State v. Peck, 149 Vt. 617, 622, 547 A.2d 1329, 1332 (1988).

Here, the plea agreement and the waiver of rights provision that defendant signed, along with the certification signed by his attorney, belie defendant’s argument that he has always maintained his innocence. The waiver of rights portion of the plea agreement reads in relevant part:

I do not deny that I committed the essential parts of the charge contained in the Information. ... I ask the Court to accept my plea, making no claim of innocence. I ask the Court to accept my plea with the understanding that the Court will then proceed to sentence me as required by law.

(Emphasis added.)

Next, relying on State v. Coleman, 160 Vt. 638, 632 A.2d 21 (1993) (mem.), defendant argues that the jail sentences imposed are more than he bargained for when he entered his plea. In Coleman, we affirmed the trial court’s denial of defendant’s motion to clarify or modify his conditions of probation and remanded for further proceedings, with leave to defendant to withdraw his nolo plea if he desired. Id. at 640, 632 A.2d at 23. Coleman had entered an Alford plea to lewd and lascivious conduct. In doing so, he agreed to a conviction for the crime, while maintaining his innocence, as permitted by North Carolina v. Alford, 400 U.S. 25, 37 (1970). Defendant’s reliance on Coleman is misplaced, however; there is a fundamental inconsistency between an Alford plea and a probation condition that requires an admission of guilt. That inconsistency does not exist when the plea is not premised on Alford.

Defendant, nevertheless, claims he was denied information critical to his decision because he was not informed “that as a sexual offender he would have to admit his participation, his guilt, if he were ever to receive any consideration” in terms of parole. Defendant asserts that he was deceived by the trial court and the prosecutor and that he is in a “Catch 22” because he must admit guilt or face additional jail time. This argument is unpersuasive for several reasons.

As we have already noted, a nolo plea is not a claim of innocence. Further, a defendant has no right to advice from the court or his attorney regarding parole eligibility. In re Moulton, 158 Vt. 580, 584, 613 A.2d 705,708 (1992). Defendant’s attorney testified that he signed the plea agreement certification that provides, “As the attorney of record I have fully discussed this case with the defendant and have explained each of the above rights to the defendant.” Defendant presents no claim of ineffective assistance of counsel and even refused to waive his attorney-client privilege to allow his attorney to explain any differences between the language of the plea agreement and what defendant understood it to mean.

Defendant points to the trial court transcript of the hearing when he entered his plea. In that hearing, the judge asked defendant, “Do you admit then that there’s a factual basis for you to enter a nolo plea to the charge of sexual assault. . . ?” Defendant responded, “You’re asking me if I want to admit to that?” Defendant’s attorney requested that the court rephrase the question and ask that defendant “does not contest that the State could prove [the crime] beyond a reasonable doubt.” The court used this phraseology for the remaining counts and defendant did not contest. Defendant highlights this reluctance to admit guilt and argues this is equivalent to a claim of innocence.

To support withdrawal of the plea, a defendant must provide objective evidence to demonstrate that his subjective misunderstanding was reasonable. In re Stevens, 144 Vt. 250, 255, 478 A.2d 212, 215 (1984). Otherwise, every plea would be subject to successful attack. Id. at 255-56, 478 A.2d at 215. The signed plea agreement and accompanying certification offer objective evidence of defendant’s understanding and show that defendant made no claim of innocence. In fact, defendant admitted the State could prove the elements of sexual assault. It was reasonable for the trial court to deny withdrawal given that there was no objective evidence indicating that defendant did not understand the nature or consequences of his plea.

Affirmed.