State v. Ernest Phillips, 195 A.3d 1099

Background

Ernest Phillips was charged in 2016 with multiple counts arising from alleged sexual contact with two minors (events between 2012–2014); charges were later amended and plea negotiations followed.
Parties negotiated a plea: Phillips would plead guilty to two counts under 13 V.S.A. § 2601a, other charges dismissed, with a three-year deferred sentence and probation conditions.
At the change-of-plea hearing the court proposed an extra probation condition (no teaching females under 18); Phillips initially resisted but later accepted after clarification; victims opposed the plea and had not participated in plea negotiations.
During the colloquy the court expressed concern about pleading to § 2601a because that statute postdated the alleged conduct and suggested Phillips waive appeal/post-conviction review to avoid appellate scrutiny of any ex post facto issue; Phillips knowingly and voluntarily waived appeal rights on the record.
The court accepted Phillips’s guilty pleas and dismissed the remaining charge but repeatedly stated it was not yet deciding whether to accept the plea agreement; judge and parties signed plea-related forms, and Phillips later moved to enforce the plea.
The trial court rejected the plea agreement, citing (1) that an appeal waiver was not permissible as a plea condition and (2) concern about pleading to a statute that did not exist when the conduct occurred; Phillips appealed interlocutorily.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
May a defendant validly waive the right to direct appeal as part of a plea?	State argued appeal waivers may be constrained; court questioned waiver scope.	Phillips argued such waivers are routinely permitted if knowing and voluntary.	Waiver permitted; a knowing, voluntary waiver of nonjurisdictional appeal/ex post facto challenges is valid here.
May a defendant plead to a statute enacted after the conduct (ex post facto concern)?	State initially raised ex post facto concerns about applying § 2601a retroactively.	Phillips contends no Ex Post Facto problem because § 2601a is more lenient and his conduct was criminal when committed.	Court did not decide the substantive ex post facto question; held that if an ex post facto issue existed it could be waived under the circumstances.
Did the trial court accept the plea agreement such that it could not later reject it?	State argued the court never accepted the agreement under V.R.Cr.P. 11 procedure.	Phillips argued court accepted pleas, signed forms, and thus the agreement was accepted and binding.	Court held the plea agreement was not accepted; the judge deferred decision under Rule 11, so the court could later reject the agreement.
If a court accepts a plea but not a plea agreement, must defendant be allowed to withdraw plea?	State relied on Rule 11 procedures permitting withdrawal if agreement later rejected.	Phillips argued acceptance of plea + forms meant no withdrawal available.	Court reaffirmed Rule 11 framework: acceptance of a plea is distinct from acceptance of a plea agreement; defendant should be afforded Rule 11(e)(4) protections if agreement rejected.

Key Cases Cited

In re Torres, 177 Vt. 507, 861 A.2d 1055 (Vt. 2004) (defendant who knowingly and voluntarily pleads guilty waives nonjurisdictional defects)
State v. Hance, 157 Vt. 222, 596 A.2d 365 (Vt. 1991) (defendants may waive many rights if waiver is knowing, intelligent, voluntary)
State v. Delisle, 162 Vt. 293, 648 A.2d 632 (Vt. 1994) (trial court’s acceptance of plea does not automatically bind court to plea agreement; totality of circumstances controls)
State v. Hendricks, 173 Vt. 132, 787 A.2d 1270 (Vt. 2001) (reaffirming Delisle that plea agreement acceptance requires clear indication the court will embody agreement in sentence)
State v. Bergerson, 144 Vt. 200, 475 A.2d 1071 (Vt. 1984) (proper remedy when court rejects recommended sentence after plea is to allow withdrawal of plea)
State v. Buck, 139 Vt. 310, 428 A.2d 1090 (Vt. 1981) (discussed historic skepticism about conditioning deferred sentence on appeal waiver)
Lynce v. Mathis, 519 U.S. 433 (U.S. 1997) (Ex Post Facto Clause protects against retroactive increases in punishment)