NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2017 VT 116

                                           No. 2015-460

State of Vermont                                                Supreme Court

                                                                On Appeal from
   v.                                                           Superior Court, Chittenden Unit,
                                                                Criminal Division

James Scarola                                                   April Term, 2017


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


        ¶ 1.    REIBER, C.J. 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

                                                 2
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.



                                                 3
       ¶ 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

                                                 4
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



                                                 5
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.

                                                 6
       ¶ 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

imprisonment. Different standards apply depending on whether the motion is made before or after

sentencing.

       ¶ 14.     Rule 32(c)(1) specifies that the court may exercise its discretion to dispense with a

presentence investigation if the defendant requests that sentencing be made without such an

investigation:

                  A presentence investigation shall not be initiated until there has
                 been an adjudication of guilt, unless the defendant consents to such
                 action. . . . [T]he court, in its discretion, may dispense with the
                 report, in the following situations:

                   (C) if the defendant refuses to be interviewed by a probation
                 officer or requests that disposition be made without a presentence
                 report;

V.R.Cr.P. 32(c)(1) (emphasis added). Moreover, Rule 32(d) specifies that defendants may make

a motion to withdraw within thirty days after any judgment, including a term of imprisonment, but

only if they are not in custody under sentence:

                 A motion to withdraw a plea of guilty or of nolo contendere may be
                 made only by a defendant who is not in custody under sentence. The
                 motion must be made prior to or within 30 days after the date of
                 entry of judgment, except that a defendant whose sentence does not
                 include a term of imprisonment may make the motion at any time.

V.R.Cr.P. 32(d) (emphasis added); see also State v. Brooks, 170 Vt. 597, 599, 750 A.2d 1000,

1002 (2000) (mem.) (“[A] defendant who is in custody under sentence may not file a motion to

withdraw his or her guilty plea.”). If any one of these requirements is not met, then the court lacks

jurisdiction to consider the defendant’s motion. See id. at 599, 750 A.2d at 1002 (“[B]ecause




                                                   7
defendant was in custody under sentence when he brought his motion to withdraw, the court had

no jurisdiction to hear the motion.”).

        ¶ 15.   The Rule goes on to explain two different standards the court must use when

assessing whether to grant a defendant’s motion to withdraw. First, if the defendant makes the

motion before the court imposes sentence, then the court may grant the motion if the defendant

shows a “fair and just reason” for withdrawal of the plea and that reason substantially outweighs

any potential prejudice to the State:

                If the motion is made before 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) (emphases added).        In applying this provision, the court must exercise its

discretion liberally in favor of withdrawal of the plea. See State v. Belanus, 144 Vt. 166, 169-70,

475 A.2d 227, 229 (1984) (“Although withdrawal of a plea of guilty or nolo contendere is within

the discretion of the sentencing judge, that discretion is not absolute. It must be exercised liberally

in favor of withdrawal of the plea.”). Second, if the defendant makes the motion after the court

imposes sentence, then the court may grant the motion only if not doing so would cause a “manifest

injustice”:

                If the motion is made after sentence, the court may set aside the
                judgment of conviction and permit withdrawal of the plea only to
                correct manifest injustice.

V.R.Cr.P. 32(d) (emphasis added).

        ¶ 16.   The difference between the two standards, “fair and just reason” and “manifest

injustice,” for presentence or post-sentence motions to withdraw is further explored in the

Reporter’s Notes to Rule 32. The Notes explain that Rule 32(d) derives from its federal equivalent.

Presentence motions may be granted “with great liberality,” but post-sentence motions are subject

to a “more rigorous standard”:

                                                  8
               In general, the federal courts have granted motions to withdraw
               before sentence with great liberality, allowing them where the
               reason is fair and just and the prosecution has not relied on the plea
               to its substantial prejudice . . . . A more rigorous standard is
               embodied in the “manifest injustice” test to be applied after
               sentence.

Reporter’s Notes, Rule 32. The Notes explain that a “manifest injustice” may exist if the defendant

did not agree to the plea voluntarily or with the advice of counsel, if the State violated the plea

agreement, or if the plea requirements of Vermont Rule of Criminal Procedure 11 were not

followed:

               Where . . . there is evidence that the plea was not voluntary or not
               made with the advice of counsel, where the prosecution has
               breached a plea agreement, or where the requirements for taking the
               plea imposed under Rule 11 have not been complied with, the
               motion to withdraw should be allowed.
Id.

       ¶ 17.   These provisions require the court to apply the standard proper to the stage of

proceedings when a defendant files a motion to withdraw. The relevant facts here are that the

court accepted defendant’s three pleas at the change-of-plea hearing on March 23, 2015, and then

immediately 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. It deferred

sentencing on the sexual assault charge pending the presentence investigation. On June 22, 2015—

three months later—defendant filed his first motion to withdraw his no contest plea for the sexual

assault charge, and on August 17, 2015—nearly five months after sentencing—he filed his

amended motion to withdraw his pleas to the two remaining charges.

       ¶ 18.   The dates when a defendant files his or her motions to withdraw are relevant

because they determine whether the court has jurisdiction to assess the defendant’s arguments.

But here, defendant argues this case is an exception and that the dates of his motions are not

relevant to his appeal regarding the aggravated domestic assault and attempted second-degree

murder charges. He contends that he could not have been considered in custody and under
                                                 9
sentence when he filed his motion to withdraw these pleas because he never personally waived the

presentence investigations for any of his charges—rather, his counsel did.

       ¶ 19.   We are unconvinced. Waiver of any presentence investigation need not be made

personally by a defendant. Presentence investigations are a practical measure of statutory origin

intended to assist the court in determining sentences; they do not derive from any constitutional

right. Moreover, the statute regarding presentence investigations specifies that waiver is generally

allowed “if the defendant . . . requests that disposition be made without a presentence report.”

V.R.Cr.P. 32(c)(1)(C). It does not specify that waiver must be made by the defendant personally.

Thus, a defendant’s attorney generally can waive a presentence investigation on behalf of the

defendant. Here, defendant’s attorney did so for the aggravated domestic assault and attempted

second-degree murder charges. These presentence investigations were therefore properly waived

under Rule 32(c)(1)(C).

       ¶ 20.   With this guidance in mind, the record shows that defendant was “in custody under

sentence” for purposes of Rule 32(d) at the time he filed his motion to withdraw the aggravated

domestic assault and attempted second-degree murder charges because he had already been

sentenced. Moreover, his motion to withdraw those pleas fell outside the thirty-day window of

Rule 32(d). Thus, the court lacked jurisdiction to rule on that motion. See V.R.Cr.P. 32(d); see

also Brooks, 170 Vt. at 599, 750 A.2d at 1002. Accordingly, we do not address either defendant’s

motion to withdraw those two pleas or his substantive arguments in support of that motion.

V.R.Cr.P. 32(d).

       ¶ 21.   In contrast, the record shows the court did have jurisdiction to assess defendant’s

motion to withdraw his plea of no contest to the sexual assault charge. For this charge, defendant

was not yet “in custody under sentence” when he moved to withdraw his plea because the court

deferred sentencing pending the statutorily required presentence investigation. At the time he filed

his motion, defendant was not serving any sentence for the sexual assault charge. The correct

                                                10
standard to apply in this context is the first of the two standards contained within Rule 32(d): the

court may grant the motion if the defendant shows a “fair and just reason” for withdrawal of the

plea and that reason substantially outweighs any potential prejudice to the State. Id.

       ¶ 22.   The court’s order denying defendant’s motion shows that it correctly applied this

standard. Addressing the first requirement of Rule 32(d), the court noted that “the Defendant has

not offered a fair or just reason. It appears that Defendant wishes to withdraw his plea simply

because he has changed his mind.” This conclusion was based on several facts, including:

(1) defendant discussed the plea agreement with his attorneys for five days before changing his

plea; (2) the agreement contained no provision regarding mitigation; (3) defense counsel

specifically told defendant that the plea agreement did not contain a provision allowing for

mitigation; (4) defendant denied being induced to accept the agreement and declined rescheduling

the hearing for his illness; and (5) defendant acknowledged at the hearing that he would serve

twenty years in jail.

       ¶ 23.   Addressing the second requirement of Rule 32(d), the court noted that “although

not determinative, there would be prejudice to the State if the [c]ourt were to allow Defendant to

withdraw his plea.” The court explained that the State reduced the severity of the attempted murder

charge from attempted aggravated murder—which would have carried a potential sentence of life

imprisonment without parole—to attempted second-degree murder. The State did so only to gain

defendant’s acceptance of the plea agreement, and defendant was sentenced to twenty years to life

for the attempted second-degree murder charge. As explained below, if the court had allowed

defendant to withdraw his plea on the sexual assault charge, it would have also had to allow

withdrawal of the other two charges and double jeopardy would prevent the State from seeking a

sentence of life imprisonment without parole even if defendant were convicted at trial.

       ¶ 24.   Although we conclude that the superior court acted within its discretion in denying

defendant’s motion to withdraw his plea to the sexual assault charge, we do not endorse the process

                                                11
followed by the court in sentencing defendant. By sentencing defendant on two of the three counts

that comprised a global plea agreement, while deferring sentencing on the third count until

completion of the statutorily-required presentence investigation, the parties and court created a

potential procedural quagmire.

       ¶ 25.   The agreement at issue was a global one—the parties’ assents to the pleas and

recommended sentences with respect to each of the counts at issue were dependent in part on their

agreements with respect to each of the others. The superior court found that, as part of the global

plea agreement, the State agreed to accept an effective sentence of twenty years to life, rather than

the life-without-parole sentence that it could have sought pursuant to a charge of attempted

aggravated murder. The State amended the attempted aggravated murder charge to attempted

second-degree murder as part of the parties’ deal. The State’s agreement was contingent on

defendant’s pleading guilty or no contest to aggravated domestic assault, attempted second-degree

murder, and sexual assault. But after accepting the pleas, the court proceeded to sentence

defendant on two of the counts, effective immediately, while deferring sentencing on the third to

allow for a statutorily required presentence investigation. In doing so, the court divided the global

plea agreement into two separate parts, setting each on a distinct procedural path, subject to

divergent standards and reviewability.

       ¶ 26.   Upon imposition of his sentence on two of the charges for which he was convicted,

and expiration of the time for direct appeal of his convictions and sentences on those counts,

defendant’s sole avenue for withdrawing his pleas was a collateral proceeding in the civil division

for post-conviction relief. See V.R.Cr.P. § 32(d) (“A motion to withdraw a plea of guilty or of [no

contest] may be made only by a defendant who is not in custody under sentence.”); id., Reporter’s

Notes, 1980 Amendment (“The phrase ‘in custody under sentence’ is the language of 13 V.SA.

§ 7131. Its use makes clear that the procedure of [Rule 32(d)] applies only when the statutory

relief procedure is inapplicable. Thus, only defendants whose sentence does not include a term of

                                                 12
imprisonment or who have not yet begun to serve a sentence of imprisonment that has been

imposed may move for withdrawal of plea.”); 13 V.S.A. §§ 7131-7137 (providing procedure for

collateral post-conviction review for prisoners in custody under sentence).

       ¶ 27.   Meanwhile, the criminal division was empowered to permit defendant to withdraw

his no contest plea for the third charge of sexual assault upon motion for “any fair and just reason”

that “substantially outweighs any prejudice which would result to the state from the withdrawal of

the plea.” V.R.Cr.P. § 32(d).

       ¶ 28.   Given these divergent standards, courts, and processes, this case could have

unfolded in a number of ways—some to the State’s detriment, some to defendant’s. On direct

appeal or in PCR proceedings in the civil division, courts could have authorized defendant to

withdraw his pleas regarding the attempted second-degree murder and domestic assault counts,

while the criminal division declined such relief with respect to the sexual assault count. Or things

could have progressed the other way around. In either case, the result could defy the parties’

agreement and the criminal division’s intent in accepting the plea deal.

       ¶ 29.   For example, given the liberal standard that applies to presentence motions to

withdraw a plea, the superior court would have been well within its discretion in granting

defendant’s motion to withdraw his no contest plea on the sexual assault count. But doing so

would have undermined the global plea agreement from the State’s perspective—leaving

defendant with the benefit of the effective sentence to which the State agreed without the

corresponding no contest plea to the sexual assault charge. Had this happened, it’s not at all clear

that the State would have had any avenue for trying to unwind the deal as a whole. Defendant had

begun serving his sentence on the other two counts; the appeal period with respect to those counts

had expired; and post-conviction relief is available only to a convicted defendant, not the State.

The State would have lost the benefit of its bargain.



                                                 13
       ¶ 30.   On the other hand, if the superior court relied upon this prejudice to the State in

denying defendant’s motion to withdraw his plea, that would have unfairly prejudiced defendant.

That is, the criminal division could have weighed against defendant the fact that an order affording

him permission to withdraw his no contest plea to the sexual assault count would prejudice the

State by depriving it of the benefit of its global plea deal with no mechanism for rescinding the

agreement. Had the superior court relied on this factor to overcome the otherwise liberal standard

for granting presentence motions to withdraw, then its own process, rather than any intrinsic

prejudice to the State resulting from defendant’s desire to withdraw his no contest plea, could have

served as the major obstacle to defendant’s ability to seek resolution of the sexual assault case on

the merits.*

       ¶ 31.   To be sure, the superior court handled the change of plea and partial-sentencing

hearing in the way the parties advocated; however, for the reasons noted above, the potential

pitfalls arising from such an approach outweigh any upside. Had the superior court deferred the

sentencing on all charges until completion of the presentence investigation, not only would it have

had the benefit of that report in imposing sentence, but it would have avoided the complications

described above. For these reasons, we do not endorse the trial court’s methodology here.



       *
          The superior court did specifically note that the State would suffer the prejudice described
above if it allowed defendant to withdraw his no contest plea on the sexual assault charge. As
noted, however, the superior court stated that this factor was not determinative, which we take to
mean that its denial of defendant’s motion rests on its detailed findings and conclusion that
defendant had failed to establish any “fair and just reason,” rather than on a consideration of
prejudice to the State. If the prejudice to the State had been a factor tipping the balance in the
superior court’s decision, it would have been a factor easily avoided by deferring the sentencing
on all three charges until completion of the presentence investigation. In asking the court to
sentence defendant on two of the three charges, and delaying the sentencing on the sexual assault
charge, defendant did not waive his protections under Rule 32(d); it was the State that took the risk
that the deal would fall through with respect to the sexual assault charge, leaving it with no ability
to reinstate the aggravated murder charge and the possibility of a life-without-parole sentence. For
that reason, if we concluded that the prejudice to the State described by the trial court was a factor
affecting the superior court’s decision to deny defendant’s motion, then we would conclude that
the court abused its discretion.
                                                  14
                                                 II.

       ¶ 32.   Next, defendant argues that he must be allowed to withdraw his plea because the

superior court erroneously participated in the plea agreement process in violation of Vermont Rule

of Criminal Procedure 11(e)(1). Defendant acknowledges that Rule 11(e)(1) departs from the

standards of the Federal Rules of Criminal Procedure because it allows the court to participate in

negotiations so long as they are on the record. He points out, however, that the in-chambers

negotiations were not recorded, that there is substantial evidence the court was involved in the

negotiations, and that the court suggested twenty years to life as a reasonable sentence. Defendant

therefore urges this Court not to give undue weight to evidence suggesting otherwise—such as the

court’s statement in its order that it “simply ‘floated’ a suggestion.” He argues that the court’s

involvement violated Rule 11(e)(1) because it was not on the record and cannot be reviewed

adequately.

       ¶ 33.   Rule 11(e)(1) states:

               The prosecuting attorney and the attorney for the defendant, or the
               defendant when acting pro se, may engage in discussions with a
               view toward reaching an agreement that, upon the entering of a plea
               of guilty or nolo contendere to a charged offense or to a lesser or
               related offense, the prosecuting attorney will move for dismissal of
               other charges, or will recommend or not oppose the imposition of a
               particular sentence, or will do both. The court shall not participate
               in any such discussions, unless the proceedings are taken down by a
               court reporter or recording equipment.

V.R.Cr.P. 11(e)(1) (emphasis added). Reversal is not warranted if the court substantially complied

with the requirements of Rule 11 or if the court’s alleged violation during the change-of-plea

hearing was merely technical. State v. Marku, 2004 VT 31, ¶ 22, 176 Vt. 607, 850 A.2d 993

(mem.) (“We require only substantial compliance with the requirements of Rule 11, and we will

not reverse if the alleged violation is merely a technical violation.”). Furthermore, in this case we

consider whether there was plain error because defendant did not object to the court’s involvement

at the change-of-plea hearing. Id. (“A defendant who fails to object to an error during the plea

                                                 15
colloquy may obtain reversal only upon a showing of plain error.”). Plain error exists only if the

error would result in a “miscarriage of justice.” State v. Kinney, 171 Vt. 239, 253, 762 A.2d 833,

844 (2000). Moreover, this standard should be viewed according to the purpose of Rule 11(e)(1)’s

recording requirement, which is to allow review of “claims that the court was prejudiced or exerted

undue influence.” State v. Davis, 155 Vt. 417, 422, 584 A.2d 1146, 1148 (1990).

       ¶ 34.   Based on a review of the motion hearing testimony of defendant and his previous

counsel, as well as the court’s own account of the in-chambers meeting, the court merely told the

parties that it believed twenty years to life would be a good resolution to the case. Before this

suggestion, the State was unwilling to pursue a plea agreement for less than twenty-five years to

life. Indeed, at the motion hearing, defendant testified regarding that issue:

               Defendant’s motion counsel: So the—prior to the March 17th, 2015
               date, did you—were you made aware that the State had made an
               offer to resolve your case?

               ...

               Defendant: As I recall, there was no offer made, that I was told over
               a year ago that the State, because of public clamor, would not back
               down from twenty-five to life.

Defendant’s previous counsel confirmed this:

               Defendant’s motion counsel: And at least during that meeting,
               again, after the chambers conference, the State had not yet moved
               off of their number of twenty-five to life?

               Defendant’s previous counsel: Correct.

The record thus shows that the court did not make a suggestion resulting in defendant receiving a

worse offer from the State, which demonstrates that defendant was not “prejudiced” and the court

did not exert “undue influence.” Davis, 155 Vt. at 422, 584 A.2d at 1148.

       ¶ 35.   Moreover, although the court “ ‘floated’ a suggestion” at a conference aimed at

resolution, the court was not a part of any back-and-forth discussions between the parties regarding

a potential plea. Nothing in the record demonstrates that the court “participate[d]” in plea


                                                 16
negotiations or the agreement reached, as prohibited by Rule 11(e)(1). And if defendant believed

that the court’s suggestion was a substantial violation of Rule 11(e)(1), he had the opportunity to

object, but did not do so.

       Affirmed.

                                               FOR THE COURT:



                                               Chief Justice




                                                17
