McMorrow, In re, 5-74

• Decision Date: 07 October 1975
• Docket Number: No. 5-74,5-74
• Citation: 346 A.2d 218,133 Vt. 472
• Parties: In re Kevin McMORROW.
• Court: Vermont Supreme Court

Page 218

346 A.2d 218

133 Vt. 472

In re Kevin McMORROW.

No. 5-74.

Supreme Court of Vermont.

Oct. 7, 1975.

Robert Edward West, Defender Gen., and Charles S. Martin, Appellate Defender, Montpelier, for petitioner.

Robert W. Gagnon, Washington County State's Atty., Montpelier, for State.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

BILLINGS, Justice.

On August 15, 1972, the defendant, Kevin McMorrow, entered pleas of nolo contendere to the charges of aggravated assault in violation of 13 V.S.A. § 1024 and making disturbing phone calls in violation of 13 V.S.A. § 1027. On October 5, 1972, the defendant was sentenced to a term of not less than two years nor more than five years on the aggravated assault complaint, and a term of three months on the disturbing phone calls complaint, the latter sentence to be served concurrently with the first sentence imposed; and thereupon the defendant was committed to the Commissioner of Corrections.

On May 17, 1973, the defendant filed a petition for review pursuant to 13 V.S.A. §§ 7131-7137 with the then Washington County Court, seeking to collaterally attack the sentences imposed. The defendant's request for relief was denied, except for the allowance of credit toward his sentence for time served for lack of bail prior to sentencing, and from said order, the defendant now appeals to this Court. 13 V.S.A. § 7135.

The defendant, for the first time, now raises the issue that his plea of nolo contendere was not intelligently, knowingly, and voluntarily made, and hence was in violation of his constitutional rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Although this Court will not put in error a lower court on an issue not raised below, In re Lovejoy, 131 Vt. 525, 527, 309 A.2d 926 (1973), we will examine the record on appeal and will reach the question attempted to be raised if the case in one of 'those rare and extraordinary cases where a glaring error occurred during the trial (which) strikes at the very heart of the respondent's constitutional rights.' State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145 (1969). We find from the record that the case before us is one that comes within the rule as stated in State v. Morrill, supra.

A plea of nolo contendere has the same legal effect as a plea of guilty insofar as regards all proceedings on the charge and on which the defendant may be sentenced. Black's Law Dictionary 1198 (4th ed. 1951). The plea admits the facts well pleaded, and although the defendant does not admit his guilt, he waives his right to jury trial, his privilege against compulsory self-incrimination, and his right to be confronted by his accusers. United States v. Washington, 341 F.2d 277 (3d Cir. 1965); North Carolina v. Alford, 400 U.S. 25, 35, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The fact that the defendant's plea was entitled a plea of nolo contendere rather than a plea of guilty is of no constitutional significance with respect to the issue of a knowledgeable, intelligent, and voluntary plea. North Carolina v. Alford, supra, 400 U.S. at 37, 91 S.Ct. 160, 27 L.Ed.2d 162.

The record of the trial court shows that at the time of arraignment the defendant's counsel indicated that the defendant desired to enter a plea of nolo, and the defendant himself, after inquiry by the trial judge, indicated that 'I'd like to get it settled; I think nolo, if you take into consideration the circumstances'. The record also shows that subsequent to the above exchanges, both the trial judge and defendant's counsel were in doubt as to the plea that the defendant desired to enter in view of the following questions and answers:

Judge: Mr. Monte, he's admitting one minute and the next denying it.

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