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State v. Donald Lambert
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 113
Docket:	Pen-01-4
on Briefs:	June 25, 2001
Decided:	July 19, 2001




	[¶1]  Donald Lambert appeals from the judgment of the Superior Court
(Penobscot County, Mead, C.J.) denying his motion to withdraw his nolo
contendere plea to the charge of arson (Class A), 17-A M.R.S.A. § 802 (1983
& Supp. 2000),{1} and his guilty plea to the charge of burglary (Class C), 17-A
M.R.S.A. § 401 (1983).{2}  Lambert contends that the Superior Court abused
its discretion; we disagree and affirm.
	[¶2]  Lambert was indicted on four counts, including arson (Class A),
17-A M.R.S.A. § 802 and burglary (Class C), 17-A M.R.S.A. § 401.  At the Rule
11{3} proceeding on June 13, 2000, Lambert pleaded nolo contendere to the
arson charge, which the State indicated was based on accomplice liability,{4}
and guilty to the burglary charge.  The pleas were entered pursuant to an
agreement in which the State agreed to dismiss the remaining counts and to
request a stay of sentencing until September.  Lambert acknowledged "his
involvement and participation in the underlying burglary . . . of merchandise,
but certainly dispute[d] . . . any direct participation in the fire that was set
. . . ."  The court accepted the pleas, finding that there was "a sufficient
basis upon which a fact finder could find the defendant guilty beyond a
reasonable doubt," and stayed the sentencing until September.
	[¶3]  On September 15, 2000, Lambert moved to withdraw his pleas
on the basis that he had "no direct involvement in and disputes the State's
accomplice liability theory" on the arson charge.  At the hearing on the
motion to withdraw, the State contended that:  a substantial amount of time
had passed between Lambert's pleas and his motion to withdraw, it would be
prejudiced by the withdrawal of the pleas because the victims and a key
witness were living out of state and it would be a hardship on the victims
and difficult for the State to force the victims and the key witness back to
Maine for a trial, and Lambert's desire to withdraw his pleas was a tactical
decision.  After evaluating three of the four factors articulated in State v.
Hillman, 2000 ME 71, ¶ 8, 749 A.2d 758, 761, the court denied the
motion.  Pursuant to the plea agreement, the remaining two counts were
dismissed, and Lambert was sentenced.{5}  This appeal followed.
	[¶4]  "A motion to withdraw a plea of guilty or of nolo contendere may
be made only before sentence is imposed."  M.R. Crim. P. 32(d).  "Although
relief should be granted liberally, a defendant does not have an absolute right
to withdraw a plea."  Hillman, ¶ 7, 749 A.2d at 760.
	[¶5]  The denial of a motion to withdraw a plea is reviewed for an
abuse of discretion.  Id.  We evaluate four factors when reviewing the trial
court's exercise of its discretion in denying a motion to withdraw:  (1) "The
length of time between entering the plea and seeking to withdraw it"; (2)
"The potential prejudice to the State"; (3) "The defendant's assertions of
innocence"; and (4) "Any deficiency in the proceeding at which the
defendant entered the plea in accordance with M.R. Crim. P. 11."  Id. ¶ 8,
749 A.2d at 761.
	[¶6]  The pleas were entered on June 13, 2000, and Lambert moved
to withdraw the pleas on September 15, 2000, the day set for his
sentencing hearing.  Thus, three months had elapsed between entering the
plea and seeking to withdraw it.  See United States v. Daniels, 821 F.2d 76,
79 (1st Cir. 1987) (indicating that waiting ten weeks between entering a
plea and withdrawing it was a lengthy period of time); United States v.
Barker, 514 F.2d 208, 222 (D.C. Cir. 1975) ("A swift change of heart is itself
strong indication that the plea was entered in haste and confusion . . . .).
	[¶7]  At the motion hearing, the State argued and the court
determined that there was potential prejudice to the State because the
central witnesses to the State's case had moved out of state and "that
carries with it the attendant uncertainty and almost presumed difficulty in
getting them back here."
	[¶8]  The court primarily focused on the third factor, the credibility of
Lambert's assertion of innocence.  Lambert contends that although he
acknowledged his involvement in the underlying burglary, he "consistently
denied any involvement with setting a fire and denied the arson charge."   
In contrast to the Rule 11 hearing, in which he acknowledged that "the
State [had] sufficient evidence, which if believed, could form the basis of a
conviction," Lambert now claims that "a jury would likely acquit."
	[¶9]  The mere presence of the assertion of innocence "does not
necessarily entitle a defendant to withdraw his plea of guilty."  Hillman, 
¶ 12, 749 A.2d at 761.  Similarly, when a defendant pleads nolo contendere
"and thus did not explicitly admit his guilt, and where he did concede that
he believed the State could convict him if the case went to trial, the fact that
defendant consistently insisted on his legal innocence does not require that
he be permitted to withdraw his nolo plea and go to trial."  State v. Pokorny,
458 A.2d 1212, 1217 (Me. 1983).  Moreover, "were mere assertion of legal
innocence always a sufficient condition for withdrawal, withdrawal would
effectively be an automatic right."  Hillman, ¶ 12, 749 A.2d at 762 (quoting
Nunez Cordero v. United States, 533 F.2d 723, 726 (1st Cir. 1976)).
	[¶10]  Although the court recognized that Lambert withdrew his pleas
because he did not start the fire, the court noted that Lambert was not
asserting innocence of the underlying crime or the fact that the fire did not
occur in conjunction with the burglary.  The court acknowledged that
"liability for a crime can attach if there's accomplice liability"; therefore, the
court did not abuse its discretion in discounting the force of Lambert's
assertion of innocence.
	[¶11]  The court did not address the fourth factor concerning
deficiencies in the Rule 11 proceeding because it was not aware of any. 
Lambert contends, for the first time on appeal, that the court erred at the
Rule 11 hearing by failing to inform him of the difference between a nolo
contendere plea and a guilty plea.
	[¶12]  Rule 11 hearings establish "a procedure to ensure that
constitutional and procedural prerequisites are met before a guilty plea is
accepted."  State v. Comer, 584 A.2d 638, 640 (Me. 1990).  "A plea is valid
if it is made voluntarily with knowledge of the elements of the crime, the
penalty that might be imposed and the constitutional rights relinquished by
foregoing trial."  Id.; M.R. Crim. P. 11.
	[¶13]  Lambert was present at the Rule 11 proceeding and personally
told the court that he understood the rights he was giving up, including the
right to a trial without unreasonable delay, during which he would have the
assistance of an attorney, the State would have the burden to prove his guilt
beyond a reasonable doubt, and he would have the right to appeal the
verdict.  He indicated that he had not been threatened by anyone and was
not promised anything in exchange for the pleas, that he was making the
pleas of his own free will, and that he was satisfied with his attorney's
advice.  Lambert's attorney told the court that he was satisfied that the pleas
were in Lambert's best interest and that his client acknowledged that the
State had sufficient evidence to convict him.  Moreover, at the motion
hearing, Lambert's attorney further indicated that his client had entered a
nolo plea with the understanding that a fact finder could choose to accept
the State's accomplice liability theory.  Thus, there were no deficiencies to
undermine the validity of Lambert's pleas.  See M.R. Crim. P. 11; State v.
Malo, 577 A.2d 332, 334 (Me. 1990).
	[¶14]  Considering the three month delay between the entry of the
pleas and the motion to withdraw, the potential prejudice to the State, the
lack of force in Lambert's assertion of innocence, and the sufficiency of the
Rule 11 proceeding, the court did not exceed the bounds of its discretion in
denying Lambert's motion.
	The entry is:
			Judgment affirmed.
Attorneys for State: R. Christopher Almy, District Attorney C. Daniel Wood, Asst. Dist. Atty. 97 Hammond Street Bangor, ME 04401 Attorney for defendant: Joseph M. Pickering, Esq. Largay Law Offices, P.A. 293 State Street Bangor, ME 04401
FOOTNOTES******************************** {1} . 17-A M.R.S.A. § 802 states in pertinent part: 1. A person is guilty of arson if he starts, causes, or maintains a fire or explosion; A. On the property of another with the intent to damage or destroy property thereon; or B. On his own property or the property of another (1) with the intent to enable any person to collect insurance proceeds for the loss caused by the fire or explosion; or (2) which recklessly endangers any person or the property of another. {2} . "A person is guilty of burglary if he enters or surreptitiously remains in a structure, knowing that he is not licensed or privileged to do so, with the intent to commit a crime therein." 17-A M.R.S.A. § 401. {3} . Rule 11 is entitled: "PLEAS; ACCEPTANCE OF A PLEA TO A CHARGE OF A CLASS C OR HIGHER CRIME." M.R. Crim. P. 11. {4} . Title 17-A, section 57 defines accomplice liability: 1. A person may be guilty of a crime if it is committed by the conduct of another person for which he is legally accountable as provided in this section. 2. A person is legally accountable for the conduct of another person when: . . . . C. He is an accomplice of such other person in the commission of the crime, as provided in subsection 3. 3. A person is an accomplice of another person in the commission of a crime if: A. With the intent of promoting or facilitating the commission of the crime, he solicits such other person to commit the crime, or aids or agrees to aid or attempts to aid such other person in planning or committing the crime. A person is an accomplice under this subsection to any crime the commission of which was a reasonably foreseeable consequence of his conduct . . . . . . . 17-A M.R.S.A. § 57 (1983). {5} . Lambert was ordered to pay the sum of $20,000 to the victims. For the arson charge, Lambert was sentenced to twelve years of imprisonment, with all but five years suspended and a probation term of four years. For the burglary charge, Lambert was sentenced to one year of imprisonment to run concurrently with the arson sentence.