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State v. Hendricks11/16/2001
d her at her home several times.
At the October 1 sentencing hearing, the State attempted to rescind its plea agreement. Defendant argued that the State and the court were bound by the terms of the September 15th agreement. The court refused to allow the State to withdraw from the plea agreement, but noted, "I haven't accepted the plea agreement yet. I took [defendant's] plea, deferred acceptance of the agreement and sentencing until we had the hearing." The court also informed defendant, prior to the start of the hearing, that it had taken judicial notice of family court files concerning defendant and the victim. At the conclusion of the hearing at which both defendant and the victim testified, the court rejected the plea agreement. The court gave defendant the opportunity to withdraw his plea, which he chose to do, and the aggravated domestic assault charge was set for trial.
At trial, the court issued preliminary instructions to the jury on the essential elements of the offense, and instructed them on their ability to take notes during the course of the trial. Defense counsel did not object to either charge. The court provided jurors with pads and pencils, permitted the jurors to take notes and use them during deliberations. The court asked the jurors to destroy these notes after trial.
Following a one-day trial, at which the jury heard testimony from a police officer, the victim, defendant, defendant's son and a neighbor, defendant was found guilty of second degree domestic assault.
I.
Defendant first contends that he is entitled to specific performance of the plea agreement under V.R.Cr.P. 11. Criminal Rule 11(e)(2) provides:
he court, before entry of the plea, may accept or reject the agreement, or defer its decision as to acceptance or rejection until there has been an opportunity to consider the presentence report. The plea agreement shall not be binding upon the court nor shall it limit the court in the judgment and sentence to be imposed unless the court accepts the plea agreement under subdivision (e)(3) of this rule.
Rule 11(e)(3) requires the court, upon accepting the plea, to "inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or a less onerous disposition." V.R.Cr.P. 11(e)(3). The next subsection provides that:
If the court rejects the plea agreement or defers decision upon it, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is or may not be bound by the plea agreement, 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).
Defendant contends that the court accepted the plea agreement at the September 15th hearing. However, the court, after finding the pleas to be knowing and voluntary, stopped short of accepting and entering judgment on them. Defendant cites to the court comment that the State's sentence recommendation is "the worst that could happen to you at the sentencing hearing," in order to establish that the pleas were accepted. However, the court also stated " his isn't settled until we come back and do the sentencing," and thereby clearly deferred acceptance pending a sentencing hearing.
We have previously rejected the argument that acceptance of the plea agreement must be presumed unless the court explicitly rejects the agreement or defers its decision. State v. Delisle, 162 Vt. 293, 300, 648 A.2d 632, 641 (1994). While we reiterate that it is "better practice" for the court - when it intends to defer a decision as to rejection or acceptance of a plea agr
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