Sunday, January 28, 2018

Timing Is Everything

Like sands in an hourglass . . .
State v. Scarola, 2017 VT 116

By Elizabeth Kruska

OK, maybe timing isn’t exactly everything, but timing is a big piece of why this particular case got affirmed. Timing is also the reason this case might have burst into a fiery mess of a procedural sideshow, but didn’t because SCOV affirmed.

The underlying facts are horrible, In 2013, Mr. Scarola beat up his wife with a baseball bat, nearly killing her. By some miracle, she survived, and he was charged with aggravated domestic assault and attempted second degree murder. That later got upgraded to attempted aggravated murder. There are lots of news articles about the facts; they need not be fully recounted here.

The case headed toward trial, and in March of 2015, the parties had a pre-trial hearing on some evidentiary issues. After that hearing, the judge called the attorneys in to chambers to inquire if the case was going to go forward to trial, or if there was some sort of plea agreement also being discussed. The judge apparently suggested that 20 years to life seemed like a reasonable sentence, given the situation.

This prompted the defense lawyer to talk to Mr. Scarola about a possible plea agreement. After some back and forth, the state made a proposal of 20-life with pleas to the aggravated domestic, attempted second degree murder, and an additional charge of a sexual assault. Ultimately Mr. Scarola agreed.

He was brought to court fairly quickly for this change of plea hearing. This all happened this way because the chambers conference was not long in advance of a scheduled trial. If the case settled prior to trial, there’d obviously be no need for the trial to happen.

Apparently Mr. Scarola was surprised, though, that he was going to get sentenced on the same day as his change of plea. Normally in a case with charges this serious there’s also a pre-sentence investigation done, which generates a report to the court to help the court in determining whether the proposed sentence is appropriate. Alternatively, a defendant can waive that requirement in many kinds of charges. That said, by law, a sexual assault charge MUST have a pre-sentence investigation done. So, Mr. Scarola was sentenced to a cumulative sentence of 20-life on the violent charges, and the sex charge would get sentenced later.

A few months later Mr. Scarola—with a different lawyer, moved to withdraw his plea on the sexual assault charge. Later he amended this to include a motion to withdraw his pleas to the other charges. He argued, among other things, that the judge inappropriately participated in the plea negotiation process, that he didn’t understand the agreement, and that he didn’t realize he’d get sentenced the same day he pled. At a hearing he made these arguments plus said that he thought he’d be allowed to argue some mitigating factors. The trial court ruled against him.

Mr. Scarola appeals, and SCOV affirms.

First of all, filing a motion to withdraw a plea is set forth by Vermont Rule of Criminal Procedure 32. And with this rule, timing is everything. A defendant has only a short window of time to file this motion, and it can generally be done if the person is not already in custody and under sentence. This would apply if, say, a defendant pled guilty and then was going to be sentenced later on and for some reason between those times decided to file to withdraw his plea. But here, Mr. Scarola was immediately under sentence for the negotiated 20-to-life.

If, however, a defendant does file a motion to withdraw a plea after sentence is imposed, the court can only grant it if not doing so would cause a “manifest injustice.” “Manifest injustice” is a really high standard and happens really only where a defendant doesn’t plead voluntarily or an agreement is breached or some other very serious matter occurs.

Mr. Scarola tried to argue that he actually really wasn’t in custody and under sentence because no presentence investigation was done before he was sentenced for the assault and attempted murder. The reason that wasn’t done is because his attorney stated on the record that it would be waived. Mr. Scarola argued before SCOV that only he could waive that right, and since he was not the one who said it, it made him technically under sentence.

“We are unconvinced,” says SCOV on this point. There’s no constitutional right to a PSI. And there’s no requirement that the defendant personally must waive having a PSI done. Therefore, he was in custody and under sentence for the assault and attempted murder charges. He didn’t file his motion to withdraw his pleas on those counts until five months later, which is well beyond the 30-day window allowed by rule. Therefore, the court had no jurisdiction and couldn’t act on the motion.

The sexual-assault charge is a little different. Remember, he pled to that but couldn’t be sentenced because, by law, a PSI must be done for that charge and can’t be waived. Therefore, he was in custody, but not under sentence for that count.

Mr. Scarola would have had to have shown a “fair and just” reason for withdrawing his plea in the sexual assault charge. There was a hearing, and the trial court found he did not meet that standard. SCOV agrees that the trial court ruled correctly that he could not withdraw his plea.

SCOV is a little unhappy with the way this unfolded, though. Mr. Scarola pled to the 3 charges together as a package deal. By causing sentencing to happen with respect to 2 counts but not the other, it created a potential “procedural quagmire” where, theoretically, one plea could be withdrawn while the others couldn’t. And since all the pieces depended upon one another, removing one piece would do harm to the whole agreement. It also did weird things to the timing for Mr. Scarola’s right to file a direct appeal, which left him with little choice but to try to do a collateral attack on the pleas with a motion for post-conviction relief. That could have created a very weird situation where he’d have a count still pending sentencing, but a PCR pending on the other counts. For various weird reasons, what happened here just doesn’t really work. (Read the opinion; the Chief Justice has a really nice explanation of the potential weirdness in paragraph 30. Actually, just read the opinion, anyway.)

Mr. Scarola also tried to argue that the trial judge erroneously participated in the plea agreement process. The attorneys met with the judge in chambers, who said something like, “20-life is reasonable here.” This, like most chambers conferences, wasn’t recorded. Apparently before this conversation happened, the State wouldn’t budge from 25-life, but the judge’s comment sent the parties back to the table to talk some more, and ultimately to come up with a resolution.

SCOV says this wasn’t inappropriate. For starters, Mr. Scarola actually got a better deal than he’d been looking at before, since the State wanted a higher minimum. Also, the judge wasn’t part of any sort of back-and-forth negotiations, he just threw out there what seemed reasonable. Finally, SCOV points out that Mr. Scarola had the opportunity to object to this, but he didn’t at the time.

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