After a jury was seated in January for the former lawmaker’s trial on the second of two sets of unrelated charges, McAllister agreed to plead no contest to reduced charges. Those carried a maximum sentence of seven years and would have required that he register as a sex offender.
The state had dropped the charges in the earlier trial after McAllister’s accuser perjured herself on a minor detail unrelated to the sexual assault allegations.
The trial that was scheduled to begin in January centered on accusations that McAllister repeatedly sexually assaulted a woman who was living in a trailer on his Highgate farm. Prosecutors described it as a sex-for-rent scheme.
The day after he entered the plea deal, reports emerged that McAllister was looking to back out. He then fired his defense team, hired new counsel and submitted his motion to withdraw his plea.
“We’re obviously happy with the court’s decision, and Mr. McAllister’s ability to have a trial in this case,” said Bob Katims, McAllister’s new attorney.
Katims said he hadn’t spoken with McAllister yet, because the ruling had just been released, but he added, “I’m sure he’ll be delighted.”
In his Thursday ruling, Franklin County Superior Court Judge Martin Maley wrote, citing precedent, that the courts are to treat “motions to withdraw before sentence with great librality.”
Appellate courts have established that a motion to withdraw a plea must be for “fair and just” cause based on several factors. First, whether the defendant has asserted his innocence, which McAllister has throughout his case — even as he entered the no contest plea, Maley wrote.
A no contest plea is not an admission of guilt, but rather an acknowledgment that if the chargers were heard at trial the state may be able to prove its case.
The elapsed time after entering a plea is also a factor, Maley wrote, and McAllister took steps quickly to withdraw from his deal with the state.
Also at issue is whether McAllister received competent counsel from his defense team. McAllister’s previous attorneys, Brooks McArthur and David Williams, were called to testify in hearings on the motion to withdraw. Both denied pressuring McAllister to accept the deal but said they advised him that they believed, given the evidence against him, that a plea deal was his best option.
Maley wrote that McAllister “had the full benefit of competent counsel at all times. However, even the most competent counsel is useless to a defendant who, for whatever reason, does not comprehend the advice given or information relayed.”
That speaks to the fourth factor appellate courts have laid out for the consideration of requests to withdraw a plea: whether the defendant understood the terms and consequences of the plea agreement.
Here Maley found McAllister had not fully understood the consequences. Maley wrote that “under the intense pressure of a plea negotiation taking place in the waning hours of the afternoon,” he finds it credible that McAllister didn’t understand the full ramifications of his plea.
Particularly, Maley wrote that it’s possible McAllister didn’t understand the probation consequences of his plea in the context of a sexual assault charge. To be eligible for parole, people convicted of a sex crime must undergo therapy that involves admitting the facts of the charge they plead to.
For McAllister, that would mean admitting to facts he’s consistently maintained are untrue. Without an admission, he’d be forced to serve his full prison term.
Prosecutors argued that granting McAllister’s motion would prejudice their case, because the previous pool of jurors in now tainted, perhaps making a change of venue necessary.
Maley rejected that notion, writing that it took only a day to seat a jury last time and it’s “not clear at this point that no pool of jurors could be selected from this county” to hear the case.
Katims said he agreed with Maley, even after McAllister’s conversation with his accuser was played at a hearing on his motion to withdraw. Prosecutors are likely to play the tape at trial, Katims said, so the issue isn’t whether potential jurors have seen news reports about the tape, but whether they can still be impartial.
Asked whether McAllister — given his difficulty fully understanding the plea deal — grasps that he now faces a potential life sentence if convicted at trial, Katims said, “He fully understands what he’s charged with, and he’s anxious to have a trial and his day in court.”
Maley’s order calls for McAllister’s case to be scheduled on the next available jury draw. A status conference will be scheduled to determine when a trial can start. Katims said that could take several months.
