Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-051

                                      DECEMBER TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Cecil Vivian                                          }    DOCKET NO. 1050-8-09 Wmcr

                                                            Trial Judge: David Suntag

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

       Defendant appeals the court’s denial of his motion to withdraw his plea. On appeal,
defendant argues that the court erred in admitting statements defendant made at a prior hearing
regarding his communication with his attorney, and in denying his motion to withdraw his guilty
plea. We affirm.

         In August 2009, defendant was charged with three counts of aggravated sexual assault
and one count of incest based on allegations made by two of his daughters. Defendant was
initially represented by the county public defender, but the case was reassigned to conflict
counsel in February 2010. During the trial-preparation period, the State made a plea offer to
defendant. Jury selection was scheduled to begin on March 7, 2011, but on March 2, 2011,
defendant’s attorney reported to the court that defendant was still actively considering the State’s
offer. On March 4, 2011, the court held a change-of-plea hearing. Defendant entered a guilty
plea to one count of aggravated assault and to incest, and, in return, the State dismissed the other
two charges. It was an open plea agreement, and no sentence was agreed upon. Defendant
executed and signed a written stipulation of the admitted facts supporting the charges.

        At the hearing, the court discussed the terms of the agreement with defendant. The court
explained that since there were no promises regarding sentence, the sentence could be up to life
imprisonment, and defendant would not have recourse to change his plea if he did not like the
resulting sentence. Defendant agreed that he understood. The court described the factual basis
for the charges, and defendant agreed he had done those acts. The court also described
defendant’s trial rights, and defendant indicated that he understood he was waiving those rights.
Defendant stated he was satisfied with his attorney’s representation and that he had not been
made any promises in exchange for his guilty plea beyond the State’s dismissal of the additional
charges. Defendant pleaded guilty to both counts, and the court found that the pleas were made
knowingly and voluntarily.
         On April 6, 2011, the court received a letter from defendant. He stated that he had lied
about his guilt at the change-of-plea hearing because his attorney told him it was “the best way to
go.” He asked to have a new attorney appointed for him. In response, the court held a hearing
on April 28, 2011. At the hearing, the court questioned defendant, but defendant was not placed
under oath. In response to the court’s questions, defendant claimed that his attorney had forced
him to plead guilty. Defendant stated that his attorney advised him that he could change his plea
at a later date if he did not like the sentence he received from the court. He stated that he felt his
attorney threatened him by saying he would not win at trial. He also said he lied to the court
about committing the crimes because his attorney told him it was the best thing to do.
Defendant’s attorney was present, and the court gave him an opportunity to respond. The
attorney stated that he had thoroughly explained the consequences of a guilty plea to defendant.
He noted that defendant had initiated the plea process by contacting him on March 3. He denied
that he had instructed defendant to lie or advised defendant that defendant could change his plea
if he did not agree with the sentence.

       Following this hearing, the court granted defendant’s motion to replace counsel. The
court explained that there was no longer a reasonable attorney-client relationship between
defendant and his attorney “both of whom accuse the other of lying in Court.” Defendant was
assigned new counsel.

        The court then held a hearing on defendant’s motion to withdraw his plea on July 5,
2011. At that hearing, the prosecutor sought to admit statements defendant made at the April 28
hearing for purposes of impeachment. Defendant’s new attorney moved to exclude the
statements on hearsay grounds and as protected by attorney-client privilege. She argued that
defendant made his April 28 statements about his conversations with his prior lawyer without
any knowledge that the statements could be construed as a waiver of the attorney-client privilege
and the statements should accordingly be excluded. The court suspended the hearing to address
this question and requested that the parties submit legal memoranda on the topic. In briefing the
issue, counsel argued for exclusion of the April 28 transcript as a whole because the transcript
included statements by both defendant and his attorney about privileged communications. On
September 1, 2011, the court issued a written order denying defendant’s motion to exclude the
transcript. The court concluded that defendant had put the communications between him and his
attorney at issue and therefore impliedly waived any privilege. The court rejected defendant’s
argument that a waiver had to be made explicitly, explaining that there was no affirmative
obligation for the court to inform defendant regarding the privilege.

        On September 20, 2011, the court continued the suspended hearing on defendant’s
motion to withdraw his plea. The court heard testimony from defendant, his former attorney, and
defendant’s daughters, who were two of the complainants in the case. The transcript of the April
28 hearing was admitted in its entirety, although the State relied only on the portions of the
transcript reflecting defendant’s prior statements in its cross-examination of defendant.
Defendant’s new attorney reiterated her prior objection to admission of the transcript, but did not
object to the admission on any additional grounds. At the hearing, defendant testified that his
lawyer had not explicitly told him to lie, but that he felt that the lawyer was essentially advising
him to do.




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        Following the hearing, the court issued a written decision denying defendant’s request to
withdraw his plea. The court found the following based on the attorney’s testimony, which the
court deemed credible. Defendant’s attorney was fully prepared to go to trial, but defendant
called on March 3 seeking to accept the offer to plead guilty. The attorney spoke with defendant
prior to the hearing on March 4 and reviewed all of defendant’s rights with him prior to the
hearing. Defendant was upset during that conversation and threw his glasses to the ground, but
ultimately decided to plead guilty. The court found that while defendant was upset during the
hearing there was nothing “suggesting that this state affected [defendant’s] ability to act
rationally, knowingly, and voluntarily.” The court credited the objective indications that
defendant understood the agreement and pleaded guilty voluntarily, and that defendant’s own
statements concerning his subjective state of mind were inconsistent with this evidence and not
credible.

       Defendant appeals. On appeal, defendant argues that the court erred in denying his
request to exclude statements made at the April 28 hearing and in denying his motion to
withdraw his plea.

       We first address defendant’s arguments concerning his motion to exclude his statements
from the April 28 hearing. Under Vermont Rule of Evidence 502, a client can refuse to disclose
confidential communications with an attorney. V.R.E. 502(b). There is no privilege, however,
for “communication relevant to an issue of breach of duty by the lawyer to his client.” V.R.E.
502(d)(3). Based on this exception, the trial court concluded that defendant’s statements at the
April 28 hearing were not protected by privilege.

        Defendant argues that because he was not making a claim against his attorney, the
exception does not apply. There is no merit to this argument; the exception is not limited to
attorney-client disputes, but may extend to situations where a party puts the content of the
communications between the party and the party’s attorney at issue. See, e.g., Steinfeld v.
Dworkin, 147 Vt. 341, 342-43 (1986) (per curiam) (party may not raise attorney-client privilege
where an attorney’s authority to settle a claim is in issue). Defendant’s letter to the court—
requesting new counsel and alleging his attorney had advised him to lie and had forced him into
accepting the plea—put at issue the substance of his communication with his attorney regarding
the attorney’s advice about the plea agreement. Although defendant was not making a claim of
ineffective assistance against his lawyer, he was alleging that there was communication relevant
to an issue of breach of duty by his lawyer that entitled him to some relief. Cf. State v. Fisk, 165
Vt. 260, 263 (1996) (noting, among other factors, defendant’s refusal to waive attorney-client
privilege in rejecting defendant’s claim that his attorney had not fully explained language of plea
agreement).

        We also reject defendant’s contention that his privilege could not be waived impliedly
and that the court or his attorney had an affirmative duty to advise him concerning the privilege
at the hearing. Defendant’s voluntary action of writing the letter prior to the hearing voluntarily
disclosed the content of conversations with his attorney and put the content of those
conversations at issue. See Chase v. Bowen, 2008 VT 12, ¶¶ 29-30, 183 Vt. 187 (explaining that
father impliedly waived privilege with respect to limited communications by placing the content
of some confidential communications at issue). While the facts were discussed more deeply at
the hearing, defendant’s letter had already disclosed the content of attorney-client


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communication. We agree with the court that it would be unfair to allow defendant to proceed
with his claim that he was improperly counseled by his attorney and at the same time preclude
the attorney or the State from answering defendant’s charges by discerning the facts underlying
defendant’s assertion. See Steinfeld, 147 Vt. at 343 (concluding that in the context of settlement
negotiations, if one party raises attorney’s authority to settle, “[i]t would work an extreme
hardship on other litigants and on the court if a party could, at the same moment, assert the lack
of authority to settle and yet prevent facts bearing on that authority from coming into
evidence”).*

        Defendant further argues that his attorney did not comply with the ethical rules at the
April 28 hearing because the attorney disclosed communication at the hearing when he was not
required by the court to do so. See V.R.P.C. 1.6(c) (stating that lawyer is precluded from
revealing information unless “permitted under these rules or required by another provision of law
or by court order”). Defendant raises this argument for the first time on appeal. See State v.
Brink, 2008 VT 33, ¶ 6, 183 Vt. 603 (mem.) (explaining that to preserve issue for appeal,
defendant must present issue to trial court with specificity and clarity). Any error arising from
admission of defendant’s counsel’s April 28 statements—and we do not reach this question
either way—was harmless in any event, as the trial court made it clear in the July 5 hearing that
it would not consider statements from April 28, not made under oath, as testimony; defense
counsel testified under oath at the September 20 hearing; and the trial court’s findings reflect that
the trial court did not consider defense counsel’s April 28 statements in reaching its decision.
See V.R.Cr.P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded.).

        Next, we consider defendant’s argument that the court erred in denying his motion to
withdraw his guilty plea. Prior to sentencing, the trial court may permit withdrawal of a guilty
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 court has discretion in considering such a request, and “if defendant’s justification for
withdrawal is unreasonable under the circumstances, the motion should be denied.” Fisk, 165
Vt. at 262. To determine if the court abused its discretion, this Court examines the
circumstances surrounding the plea to determine if it was entered knowingly and voluntarily.
State v. Merchant, 173 Vt. 249, 256 (2001).

        There was no abuse of discretion in this case. The court considered the evidence
presented by defendant and concluded the credible evidence demonstrated that defendant’s plea
was entered knowingly and voluntarily. While defendant cites to his own testimony as
countervailing evidence demonstrating that he pleaded guilty because of pressure by his attorney,
as fact finder, it is the court’s role to determine credibility, and the trial court “is not compelled
to accept defendant’s characterization of his own state of mind.” Merchant, 173 Vt. at 257. We
give deference to the court’s credibility determination and will not retry the evidence on appeal.
Id. Here, evidence supported the court’s finding that defendant understood the terms of the plea
agreement and the consequences of that plea, and that his attorney properly counseled him

       *
        Because defendant pursued his claims based upon alleged interactions with his counsel,
we do not consider what impact defendant’s withdrawal of those claims would have had on the
waiver analysis.

                                                  4
regarding the terms of the agreement. Thus, the court acted within its discretion in denying
defendant’s request. See Fisk, 165 Vt. at 263 (affirming court’s denial of defendant’s request to
withdraw plea where objective evidence demonstrated that defendant admitted alleged acts and
understood nature and consequences of plea).

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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