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State v. Dove3/24/1995
MORSE, J. Defendant appeals from the denial of a motion to withdraw a nolo contendere plea after he received an eight- to fifteen-year sentence for the crime of careless and negligent driving with serious injury resulting. 23 V.S.A. § 1091(c). Defendant contends that because his sentence was statistically unprecedented, his plea was not knowing, voluntary, and intelligent, and his sentence violated the proportionality clause of Chapter II, § 39 of the Vermont Constitution. Defendant further contends that his sentence was based on his status as a drug addict and that the district court abused its discretion by considering his history of alcohol and drug addiction. We affirm.
Defendant was travelling west on Route 9 toward Bennington when he lost control of his car and struck an oncoming vehicle. Defendant and the five occupants of the other vehicle sustained injuries. Two of the occupants suffered back and spinal injuries which required surgery; one of those occupants is now permanently paralyzed from the waist down. The State charged defendant with violating 23 V.S.A. § 1201(a)(2) (driving while under the influence) and 23 V.S.A. § 1091(c) (careless and negligent driving with serious injury resulting).
After consulting his lawyer, defendant entered a plea of nolo contendere to the charge of careless and negligent driving with serious injury resulting. As part of that plea agreement, the State did not prosecute the charge of driving under the influence . The court ordered a pre-sentence investigation report and held a three-hour hearing, after which the court sentenced defendant to eight to fifteen years imprisonment. Defendant moved to withdraw his plea, and the court denied the motion.
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).
Defendant does not challenge the adequacy of the plea colloquy; rather, defendant contends that because his sentence was unprecedented, he could not adequately assess the risks involved in entering his plea. Therefore, he argues, his plea was not knowing, voluntary, and intelligent. V.R.Cr.P. 11(b)-(d); see State v. Hamlin, 143 Vt. 477, 481, 468 A.2d 557, 559 (1983) (intelligent plea requires "full knowledge of the information necessary to assess adequately the risks involved").
Even assuming the sentence was unprecedented, defendant, who was represented by counsel, should have known that 23 V.S.A. § 1091(c) authorizes a minimum sentence of one and a maximum sentence of fifteen years. See State v. Bushway, 146 Vt. 405, 408, 505 A.2d 660, 662 (1985) (not abuse of discretion to impose eighteen to twenty-year sentence where sentence was within limits set by statute). Although defendant's trial lawyer later stated in an affidavit that he thought the chance of receiving the sentence imposed was "unappreciable" and that defendant entered the plea agreement "without even considering the possibility," defendant's lawyer had advised defendant regarding the range of potential sentences. While the sentence may have been the longest yet imposed, the severity of the sentence was foreseeable given defendant's criminal history and the severity o
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