STATE OF VERMONT

SUPERIOR COURT
FRANKLIN CRIMINAL DIVISION

CRIMINAL DIVISION
DOCKET NO: 481-5-15FRCR

STATE OF VERMONT
V.
Norman McAllister, Defendant
STATES RESPONSE TO MOTION TO WITHDRAW PLEA
NOW COMES the State of Vermont, by and through its attorney, John Lavoie
Esq., and asks that defendants motion to withdraw his plea be denied. The defendant has
failed to provide a fair and just reason to withdraw is plea.
This matter came on for jury selection on January 10, 2017. Trial was scheduled
to begin the following the day. On the Friday preceding the Tuesday of jury selection,
defense counsel for the defendant solicited an offer of settlement. The State responded
by offering dismissal of the prohibited act charges with an open plea to the charge of
sexual assault. On January 10, defense counteroffered a plea to the two prohibited act
charges with dismissal of the sexual assault charge. The State, after extensive
consultation with the putative victim, counteroffered a plea to two prohibited acts and a
plea with an amended charge of lewd and lascivious conduct with an open sentencing
following a pre-sentence investigation. This offer was accepted. By the time the offer
was accepted, the parties had spent the entire day in jury selection.
The court engaged in a lengthy plea colloquy with the defendant, the court
accepted the defendants no contest pleas. Pursuant to Rule 11, the defendant
acknowledged the voluntariness of his pleas and conceded that if the jury were to believe
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the States evidence, he could be found guilty of the charges against him. During the plea
colloquy, the court specifically inquired whether the defendant was aware that, despite his
no contest pleas, he would, as a precondition to any sex offender treatment, be required to
admit that he had engaged in the conduct described as part of the factual basis for his
pleas. Defense counsel and defendant acknowledged this reality. The defendant, through
new counsel, now asserts his innocence and alleges that he was pressured by his former
attorneys to change his plea.
The defendant does not have a right to withdraw his plea. State v. Scelza, 134
Vt. 385 (1976). Rather, he has the burden to demonstrate a just and fair reason that
would support withdrawal. Id.; In Re Mossey, 129 Vt. 133 (1971); V.R.Cr.P. 32(d).
This matter should therefore be set for an evidentiary hearing at which the defendant will
be required present evidence supporting his assertions. Whether the defendant should be
allowed to withdraw his pleas will left to the discretion of this court. Scelza, 134 Vt. at
385; State v. Meerchant, 173 Vt. 249, 256 (2001).
Even if the court were to credit the defendants assertions, any reason put forward
by the defendant must outweigh any substantial prejudice to the State. The State would
suffer substantial prejudice if the defendant is allowed to withdraw his plea. First the
parties went through an entire day of jury selection. No other juries could be selected on
that day. The entire jury panel, a larger one than normal because of the nature of this case
and pretrial publicity, can no longer be used. The putative victim, who was previously
prepared to go to trial, will suffer the additional emotional upset of preparing for trial
again. The additional publicity garnered by the defendants change of plea will make
future jury selection even more difficult. Even a change of venue may not cure this

prejudice because of the extent of the publicity. It appears the defendant seeks only to
delay trial.
Wherefore, the State requests that this matter be set for an evidentiary hearing on
defendants motion.
DATED: January 23, 2017

John Lavoie
(Deputy) State's Attorney
cc: Robert Katims