Julie A Frame HOFF na Rae NCURTIS “iy et Attorneys at Law January 20, 2017 Mary Mossey, Interim COM Vermont Superior Court Franklin Criminal Division 36 Lake Street St. Albans, VT 05478 Re: State of Vermont v. Norman McAllister Docket No. 481-5-15 Frer Dear Mary: Enclosed please find the following for filing with the Court in connection with the above- referenced: 1. Notice of Appearance; and 2. Motion to Withdraw Plea, Thank you. RWK/cas Enclosures Cc: Norman McAllister John Lavoie, Franklin County State's Attorney FabOos\125112158:CourL01.doex Hoff Curtis Phone: 802/864-6400 Website: wor: hoffeurtis.com Attorneys | 100 Main Street ‘at Law | Burlington, VT 05401 asx: 802/860-1565STATE OF VERMONT SUPERIOR COURT CRIMINAL DIVISION Franklin Unit Docket No. 481-5-15 Frer STATE OF VERMONT ) ) v. ) ) NORMAN MCALLISTER ) NOTICE OF APPEARANCE The appearance of Robert W. Katims, Esq., of HOFF CURTIS, 100 Main Street, P.O. Box 1124, Burlington, Vermont, is hereby entered on behalf of Defendant, Norman McAlister, in the above entitled matter. DATED AT Burlington, Vermont, this 20" day of January, jy Horr (curtis PO. Bac it24 ‘Buvingtn, Vermont sa324HOFF fAcurris 0.x 24 uring, Vernet sunst24 STATE OF VERMONT SUPERIOR COURT CRIMINAL DIVISION Franklin Unit Docket No. 481-5-15 Frer STATE OF VERMONT ) ) Vv. ) ) NORMAN MCALLISTER ) MOTION TO WITHDRAW PLEA NOW COMES the Defendant, Norman McAllister, by and through his attorney, Robert W. Katims of HOFF CURTIS, pursuant to Vermont Rule of Criminal Procedure 32(4), and hereby moves to withdraw his no contest pleas entered in this matter on January 10, 2017. In support of this Motion, Defendant relies upon the following Memorandum. MEMORANDUM Vermont Rule of Criminal Procedure 32(d) provides: (a) Withdrawal of Plea of Guilty. 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. 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. 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. (emphasis supplied). As stated in State v. Dove, 163 Vt. 429, 431 (1995); Different standards are applied to plea withdrawal motions depending ‘on whether they are made before or after sentencing. A motion made before sentencing is to be liberally granted “where the reason is fair and just and the prosecution has not relied on the plea to its substantial prejudice.” Reporter’sHORE Nourtis 0, Bee 124 Basingtaa, Veront stone Notes, V.R.Cr.P. 32(d), at 151. When a motion to withdraw a nolo contendere plea is made after sentencing, however, “the court may set aside the judgment of conviction and permit withdrawal of the plea only to correct manifest injustice,” a much stricter standard. V.R.Cr.P. 32(d); see State v. Wisell, 136 Vt. 541, 542, 394 A.2d 1144, 1144 (1978). ‘Mr. McAllister was originally charged in May, 2015 with six counts of sexual misconduct, On May 8, 2015, Mr. McAllister entered Not Guilty pleas to all six counts. Since that time Mr. McAllister has steadfastly maintained his innocence on all the charges. After the commencement of a jury trial on Counts 5 & 6, the State dismissed those charges. Mr. Mcallister continued to request a jury trial on the remaining counts, and in fact, selected a jury for that trial on January 10, 2017, for a jury trial that would commence the next day. Only at the end of a long day of jury selection, and under pressure from his attomeys, did Mr. Mcallister arrive in court, after hours (4:46pm) to engage in a plea colloquy with the court regarding no contest pleas to three charges (with no agreement as to sentence). Sentencing did not occur at that time. Defendant wishes to withdraw his plea because he is innocent of the offenses to which he plead no contest and he was pressured by his attorneys at the time to plead no contest. In addition, Defendant was not advised and/or he did not understand that despite the fact that he plead no contest the charges and specifically did to admit to any wrongdoing, any release prior to serving a maximum sentence would require an admission to crimes he did not commit. The State will not be prejudiced in any substantial way by the granting of this motion. If any prejudice does exist, Mr. McAllister’s reasons substantially outweigh any prejudice to the State, See, State v, Haskins, Entry Order dated December 30, 2013 (Kupersmith, J Chittenden Criminal Division) (copy attached).HOFF {curTIS PO, Bac 1128 Barngen, Vermact 4023124 Defendant has ordered a copy of the plea colloquy and will supply a copy to the Court and the State once received. Wherefore, Defendant respectfillly requests: 1. Withdrawal from his pleas, and the matter be set for trial; 2. Or, in the alternative, this Court set this motion for an evidentiary hearing on the motion. Dated at Burlington, Vermont this 20" day of January, 2017. By: . Katims, Eq stofney for the Defendant Ce: Norman MeAllister John Lavoie, Franklin County Deputy State’s AttorneySUPERIOR COURT Chittenden Unit STATE OF VERMONT ve GLEN HASKINS STATE OF VERMONT CRIMINAL DIVISION Docket No. 255-1-12 Cner ENTRY ORDER ‘The Defendant was originally charged with attempted second degree murder. On September 20, 2013, pursuant fo a plea agreement he entered guilty pleas to amended charges of aggravated assault and carrying a dangerous weapon while committing @ felony. The plea agreement provided, “State capped at recommending a sentence of 8-20 years to serve. Defendant can argue for any sentence.” Sentencing was postponed to a later date. The following Tuesday, September 24, Defendant filed a motion to withdraw his pleas. At the request of Defendant’s counsel, new counsel was assigned. A hearing on Defendant’s motion was finally conducted on December 19, Athearing, the Defendant testified that he had continuously and consistently told his lawyers that he did not want to negotiate a plea agreement, and had conveyed this position to his attorneys as recently as the week prior to September 20. On September 20, he was transported to court for jury draw/status conference’, not for a change of plea. He conferred with his attorneys and their investigator after his arrival at the courthouse ‘and was advised that the State had additional evidence against him: a recorded conversation between himself and his mother during while he.was incarcerated. He was * The jury drawstarus conférence is normally scheduled to take place on the last day prior to proposed jury draw,also told of the State’s plea offer — which was eventually incorporated into the agreement ~ and that the offer was time-limited, that it would only be held open for that day. Further, Defendant testified that he was heavily pressured by his lawyers to accept ‘the State's offer. He described their demeanor as “aggressive.” He testified that at one Point, one of his lawyers said, “Don’t be fucking stupid,” and slapped a table hard with his hand. He testified that he felt he really had no choice in the matter and agreed to the offer. After the plea agreement was signed and filed, the Court conducted a lengthy colloquy with the Defendant as provided by V.R.CrP. 11. (A transcript of the change of plea hearing was admitted into evidence as Court’s exhibit #1.) Before conducting the colloquy, the Court placed the Defendant under oath as anticipated by V.R.Cr.P. 11(c)(6). In the course of the Court’s dialogue with the Defendant, among other things the Court received statements from the Defendant admitting that he had committed the offense and that he was confident that he had sufficient time to consider the agreement and to discuss the “pros and cons” with his lawyers. Despite the fact that Defendant was under oath at the time of the colloquy, he admitted at the motion hearing that he had lied and that the statements were hot true. He explained that he lied because he had been advised by his lawyers that if he failed to accept responsibility for the crime, his chances of receiving a sentence lower than the State’s “cap,” was diminished. Rule 32(d) of the Vermont Rules of Criminal Procedure provides: (@) Withdrawal of Plea of Guilty. 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. 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. 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. (Emphasis added.) Different standards are applied to plea withdrawal motions depending on Whether they are made before or after sentencing. A motion made before sentencing is to be liberally granted "where the reason is fair and just and the prosecution has not relied on the plea to its substantial prejudice.” Reporter's Notes, V.R.Cr-P. 32(d), at 151. When a motion to withdraw a nolo contendere plea is made after sentencing, however, "the court may set aside the judgment of Conviction and permit withdrawal of the plea only to correct manifest injustice," a much stricter standard. V.R.Cr.P. 32(d); see State v. Wisell, 136 Vt. 541, 542, 394 A.2d 1144, 1144 (1978). State v. Dove, 163 Vt. 429, 431 (1995). Defendant here asserts that he wishes to withdraw his plea because, despite what he stated during the Rule 11 colloquy, he is actually innocent of the offense and that he was pressured into pleading guilty by his lawyers. ‘These are fair and just reasons, On the other hand, there is no specific prejudice to the State. The State argues only that ‘withdrawal of the pleas will further delay proceedings and that witnesses’ memories may be impaired. Defendant's reasons substantially outweigh any prejudice to the State ORDER Defendant's Motion to Withdraw Plea is granted. The Clerk shall set this matter for status conference within three weeks. (No need for Defendant to be transported.) ‘The Court anticipates that trial will take place no later than March, 2014, Dated at Burlington, Vt., December 30, 2013, Lhe ne Michael 8. oe Superior Judge