State v. Scelza

359 A.2d 660 (1976)

STATE of Vermont v. Mary Lou SCELZA.

No. 301-75.

Supreme Court of Vermont.

June 1, 1976.

Michael J. Sheehan, Windsor County State's Atty. and William J. Donahue, Deputy State's Atty., White River Junction, for plaintiff.

John A. Burgess Associates, Ltd., Montpelier, for defendant.

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

DALEY, Justice.

Defendant appeals from the denial of a motion to withdraw a plea of guilty brought under the provisions of V.R.Cr.P. 32(d).

The withdrawal of a guilty plea is not a matter of right but is within the sound discretion of the court, and the burden is upon the defendant to show that the court abused its discretion in denying the motion to withdraw. See State v. Rich, 132 Vt. 277, 316 A.2d 523 (1974). See also In re Philip R. Newton, 125 Vt. 453, 218 A.2d 394 (1966).

The burden was upon the defendant to establish the facts which she alleged entitled her to relief. See In re Mossey, 129 Vt. 133, 274 A.2d 473 (1971); ABA Standards Relating to Pleas of Guilty, § 2.1(a)(ii) and commentary.

Findings were made by the trial court as to all matters of record. But none were, or could have been, made as to the factual issues raised by the motion because no evidence was introduced. Absent such evidence, no basis exists for granting the relief sought.

Appeal dismissed.