State v. Placey

State v. Placey  (98-007); 169 Vt. 557; 730 A.2d 571

[Filed 22-Feb-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-007

                            SEPTEMBER TERM, 1998



State of Vermont	}	APPEALED FROM:
                        }
                        }
     v.	                }	District Court of Vermont,
                        }	Unit No. 3, Orange Circuit
Duane Placey	        }
                        }	DOCKET NO. 384-10-96OeCr


       In the above-entitled cause, the Clerk will enter:

       Defendant appeals from a district court order denying his motion to
  withdraw a guilty plea  to a charge of aggravated domestic assault. 
  Defendant contends the court abused its discretion  in denying the motion
  because the court had rejected the agreement on which the plea was based. 
  We agree, and reverse.

       Defendant was separated from his wife, Karen Placey, and subject to an
  abuse prevention  order.  He had suspected for some time that Karen was
  having an affair with Bert Wheeler.  Early  one morning in October 1996,
  defendant left a bar and drove to his wife's house, in violation of  the
  abuse prevention order.  He saw Wheeler's vehicle in the driveway. 
  Defendant continued past  the house and parked in a neighbor's driveway. 
  Taking a hunting knife, he walked to his wife's  house and attempted to
  break in through two locked windows.  Failing that, he returned to the car 
  for a pry bar and used it to force entry through another window, after
  first disconnecting  telephone service to the house.  

       Defendant forced his way into a second-floor bedroom, where he found
  his wife and  Wheeler asleep in the bed.  Defendant then stabbed Wheeler
  over twenty times.  Defendant also  stabbed his wife several times,
  apparently unintentionally, as she tried to stop him.  Finally  defendant
  stopped when he realized that his two daughters were watching.  Defendant
  then took  his wife to the dining room where he sexually assaulted her
  orally, vaginally, and anally.   Defendant then left the residence with his
  wife and daughters after first setting fire to the house.  The house burned
  to the ground.  Wheeler's body was later found outside the house, where he 
  had apparently managed to escape before dying.

       Defendant was originally charged with four offenses: first degree
  murder, aggravated  domestic assault, aggravated sexual assault, and arson. 
  After several months, the parties reached  a plea agreement pursuant to
  which the State would dismiss the arson count, amend the first-degree
  murder charge to manslaughter, and amend the aggravated sexual assault
  charge to sexual  assault.  Defendant would plead guilty to the two amended
  charges and the aggravated domestic  assault, and receive sentences of ten
  to fifteen years for the manslaughter, five to twenty years for  the sexual
  assault, and ten to fifteen years for the aggravated domestic assault, all
  consecutive,  for an aggregate sentence of twenty-five to fifty years.  

       At the change of plea hearing, the court questioned the parties
  closely concerning the


 

  agreement.  Both the prosecutor and defense counsel defended it, explaining
  that it had been  reached after extensive discovery and consideration of
  the evidence, the victims' desire for  closure, and defendant's record. 
  After further questioning by the court, the State amended the  charges to
  reflect the plea agreement, and indicated that those would be the charges
  against  defendant if the case proceeded to trial.  The State's decision to
  amend the charges was unilateral,  and without regard to any agreement or
  quid pro quo.  Following the amendment, the court agreed  to accept the
  guilty pleas and defer the matter for a full sentencing hearing, at which
  time it would  determine whether the proposed sentences were acceptable. 
  Defendant thereupon pleaded guilty  to manslaughter, sexual assault, and
  aggravated domestic assault, and the court continued the  sentencing
  hearing and ordered a presentence investigation report.

       After a two-day sentencing hearing, the court concluded that the
  recommended sentence was  not proportionate to the undisputed facts of the
  offenses, and unequivocally rejected the plea,  stating: "I cannot accept
  the plea agreement.  I will not accept this plea agreement." However,  with
  defendant's concurrence, the court proceeded to set forth the sentence that
  it would impose,  leaving defendant free to accept the sentence or withdraw
  his plea.  The court proposed a sentence  of fourteen to fifteen years for
  the manslaughter, fifteen to twenty years for the sexual assault, and  six
  to fifteen years for the aggravated domestic assault, all consecutive, for
  an aggregate sentence  of thirty-five to fifty years.  

       Following a recess, defendant accepted the sentence on the
  manslaughter and sexual assault  charges, for an aggregate sentence of
  twenty-nine to thirty-five years, but decided to withdraw his  plea on the
  aggravated domestic assault charge.  The court questioned defendant's right
  to  withdraw his plea to that charge inasmuch as the proposed sentence, six
  to fifteen years, was less  than the agreed-upon sentence of ten to fifteen
  years.  The prosecutor took no position.  The court  ultimately sentenced
  defendant on the manslaughter and sexual assault counts, and referred the 
  withdrawal issue to the judge who would try the case.

       Defendant thereafter filed a motion to withdraw his plea.  The State
  did not oppose the  motion or file any written response.  The successor
  court denied the motion without a hearing,  ruling that defendant could not
  selectively "take[] advantage of the benefit of the bargain" by  accepting
  the sentence on two counts, while rejecting a sentence on the third that
  was less than  the recommendation.  Accordingly, the motion to withdraw was
  denied.  This appeal followed. 

       Under our rules of criminal procedure, if a motion to withdraw a plea
  is made before a  sentence is imposed or deferred, "the court may permit
  withdrawal of the 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).  When a court
  rejects a plea  agreement, it must advise the defendant that the court is
  not bound by the agreement, and  "pursuant to Rule 32(d) afford a defendant
  who has already pleaded the opportunity to then  withdraw his plea." 
  V.R.Cr.P. 11(e)(4).  As the Reporter's Notes to Rule 11 explain, "the 
  sentencing judge's unwillingness to impose the sentence agreed upon is
  always a `fair and just  reason' [under Rule 32(d)] for withdrawal." 
  Reporter's Notes, V.R.Cr.P. at 51.  

       In this case, defendant's right to withdraw his plea was clearly
  established when the court  unequivocally rejected the plea agreement.  See
  State v. Bergerson, 144 Vt. 200, 203, 475 A.2d 1071, 1073 (1984)
  (defendant who has already entered plea pursuant to plea agreement must be 
  given opportunity to withdraw that plea if trial court refuses to impose
  sentence recommended by  plea agreement).  After rejecting the plea, the
  court proposed alternative sentences on each count.  Defendant was entitled
  at that point to accept or reject the court's proposal.  His decision to 
  accept the alternative sentences on manslaughter and sexual assault, and
  reject the alterntative  sentence on aggravated domestic assault, was not a
  selective choice among the "benefits of the  bargain."  The "bargain" had
  been rejected.  


 


       Indeed, we note that at no time during the sentencing, or the
  subsequent withdrawal-of-plea  proceedings, did the State question
  defendant's right to reject the proposed sentence on aggravated  domestic
  assault, or oppose his withdrawal-of-plea motion.  At no time did the State
  take the  position, which it belatedly asserts here, that the plea
  agreement remained in effect and  enforceable.  It is a fundamental tenet
  that arguments not raised below will not be considered on  appeal.  See
  State v. Caron, 155 Vt. 492, 510, 586 A.2d 1127,   (1990).

       For these reasons, therefore, we conclude, that the court's decision
  to deny the motion to  withdraw the guilty plea was in error.

       Reversed. 	



BY THE COURT:



_______________________________________
Jeffrey L. Amestoy, Chief Justice

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John A. Dooley, Associate Justice

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James L. Morse, Associate Justice

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Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice