Davis v. Deml

VERMONT SUPERIOR COURT CIVIL DIVISION
Bennington Unit Case No. 24-CV-00411
207 South St
Bennington VT 05201
802-447-2700
www.vermontjudiciary.org
Cody Davis v Nicholas Deml

ENTRY REGARDING MOTION
Title: Motion for Summary Judgment; Motion to Reconsider Partial; (Motion: 4; 6)
Filer: Briana T Hauser; Briana T Hauser
Filed Date: October 10, 2025; January 20, 2026

Petitioner, Cody Davis, seeks reconsideration of this court's prior decision denying
partial summary judgment (Motion 6). Respondent, Nicholas Deml, has not responded to the
motion. For the following reasons, reconsideration is granted. Mr. Davis' previous motion for
partial summary judgment (Motion 4) is granted.

Background

Commissioner Deml did not dispute the material facts submitted with Mr. Davis' original
motion for summary judgment as required by Vermont Rule of Civil Procedure 56(c)(2). The
facts set forth by Petitioner in the Statement of Undisputed Material Facts are therefore deemed
to be undisputed for the purposes of the motion. V.R.C.P. 56(e)(2). They form the basis of the
court's discussion below.

On August 31, 2022, the State and Cody Davis entered into a plea agreement which
dismissed several pending charges in exchange for a guilty plea to aggravated assault. At the
change of plea hearing, the court reviewed the factual basis of the plea as follows:

[STATE]: On January 13th of 2019, in Bennington, Mr. Davis got
into a fight with a Michael Stephens. During that fight, Mr. Davis
struck Mr. Stephens in the head with such force that it caused Mr.
Stephens to have blurry vision and impaired vision in his left eye,
and caused multiple fractures to bones in his face.

THE COURT: Okay. Do you agree to those facts?
MR. DAVIS: Not really but, I (indiscernible) criminal trial better
than four years.
THE COURT: So in order for the Court to find that your plea is
knowing and voluntary, and that is why the Court asks that a
factual basis, that you have to agree to that factual basis if you're
pleading guilty.
MR. DAVIS: Yes.
THE COURT: So I just want to make certain, Mr. Davis, that this
is

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Filed 04/01/26
Bennington Unit
[DEFENSE COUNSEL]: Judge, if I—I’m sorry, Judge, if I could?
Mr. Davis and I have discussed this before, back when he
changed—had us file the plea agreement. My statement of the
factual basis in terms of him striking Mr. Stephens causing serious
bodily injury, may have been slightly different from what was
presented here. I think his answer may reflect that difference. But
he is admitting that he did intentionally strike Mr. Stephens and
that that caused serious bodily injury to Mr. Stephens by virtue of
the broken bones that resulted.
THE COURT: Okay.
THE COURT: So Mr. Davis, do you agree to those facts that it
was you that back on January 13th, 2019, in Bennington, and that
you got into a verbal argument with Michael Stephens. And at
some point you struck Mr. Stephens and a result of that force of the
assault that it caused Mr. Stephens to have blurry vision, and it
actually resulted in some fractures in his face. And that when you
did that, that was not an accident. That you did that with intention,
with purpose. It wasn’t by accident?
MR. DAVIS: No, but yes.
THE COURT: So it sounded like you said no, but yes.
MR. DAVIS: Yes. I did not purposely mean to do it, but I am
pleading guilty. Yes I did it, and yes, whatever. Yes. I did not
have intentions of causing any damage, no. But yes, I did it. Yes,
I plead guilty.
. . . [State confirming Mr. Davis’ agreement was to plead guilty
rather than no contest.]
THE COURT: And then [the State has] asked for it the purposely
and knowingly rather than the reckless. It sounds like Mr. Davis,
at least with the Court, sounds like he would indicate an agreement
about reckless but you were stating that it was purposely and
knowing. So I’m just looking to both you and [defense counsel]
with regards to at least right now, I don’t think that the Court can
accept the plea.
MR. DAVIS: I—yes, I purposely did it, yes.
THE COURT: So Mr. Davis, I do want to inquire of the State of
how it—what it’s asking.
[STATE]: Judge, I think you can accept it. Although Mr. Davis
might not agree that punching someone in the face with as much
force as possible, it doesn’t intend the damage that’s going to
happen. That is exactly what he admitted to. Both here and to the
officers.
THE COURT: Okay. So you’re still looking for it to be a purpose
rather than a reckless?
[STATE]: Yes.
MR. DAVIS: It’s fine. It’s fine, yes.

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THE COURT: So Mr. Davis, with regards to the Court here and
the elements. The elements are, when you assaulted Mr. Stephens,
that you intended to assault him. That that was not an accident—
MR. DAVIS: Yes.
THE COURT: —with regards to the resulting injury to Mr.
Davis, that does not have to be the intentional to cause him, but by
the strike of the blow of the assault that resulted in the serious
bodily injury to him. It sounds like that you’re agreeable to those
facts here. I just want to make certain of that?
MR. DAVIS: I agree to the plea agreement. I agree that I
assaulted him purposely, yes.
THE COURT: And that it caused those type of injuries that the
Deputy State’s Attorney indicated that there was blurry vision to
Mr. Stephens, and he had some broken—he had a fracture, some
fractures in his face as a result of that assault?
MR. DAVIS: Yes.
THE COURT: Okay. And you’re doing that—I understand that
the purpose here is to have this case resolved so that you’re able to
have this case behind you, but I want to make sure that this is your
decision. You agree to those facts?
MR. DAVIS: Yes.

Pet.’s Ex. 2 at 14–17. The court accepted Mr. Davis’s plea and imposed the agreed-upon
sentence.

This petition for post-conviction relief followed, seeking vacatur of sentence on multiple
grounds. Mr. Davis moved for summary judgment on two claims. First, Mr. Davis claimed the
trial court provided him with an inaccurate statement of the statutorily required mental state for
aggravated assault during the plea colloquy. This rendered his plea involuntary under V.R.Cr.P.
11(c) and 11(f). Second, the facts that Mr. Davis did admit to regarding his mental state at the
plea colloquy were so flawed, it could not support the sentencing he received for aggravated
assault under V.R.Cr.P. 11(f).

This court denied the summary judgment motion, finding that the material facts in the
light most favorable to the Commissioner showed Mr. Davis’ plea was voluntary, and
substantially complied with Rule 11. Therefore, as a matter of law, the facts did not entitle Mr.
Davis to summary judgment. Mr. Davis has filed a motion for the court to reconsider this
finding.

Standard

Under the Vermont Rules of Civil Procedure, the case is in an interlocutory phase until
final judgment is entered. V.R.C.P. 54(b). While the case remains in an interlocutory phase, the
court retains intrinsic authority to revisit its earlier decisions. Myers v. LaCasse, 2003 VT 86A,
¶ 11, 176 Vt. 29. It is typically called upon to do so by an ordinary motion for reconsideration.
Rule 54 grants the court discretion, as interlocutory orders are “subject to revision at any time”

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prior to entry of final judgment. V.R.C.P. 54(b); see Drumheller v. Drumheller, 2009 VT 23,
¶ 36, 185 Vt. 417. “As such, if the case properly falls within the ambit of Rule 54(b), the trial
court has the discretion to reconsider and revise interlocutory rulings before issuing the final
judgment.” Kneebinding, Inc. v. Howell, 2018 VT 101, ¶ 32, 208 Vt. 578. The standards of
reconsideration after final judgment also inform the court’s review. “The standard for granting
[a motion to reconsider] is strict, and reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court overlooked—matters, in other
words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

Summary judgment is appropriate if the evidence in the record, referred to in the
statements required by Rule 56(c)(1), shows that the record has been developed sufficiently,
there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a
matter of law. V.R.C.P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994). The court
derives undisputed facts from the parties’ statements of fact and supporting documents. Boulton
v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413. In assessing a motion for
summary judgment, the Court views all facts and indulges all inferences in favor of the non-
moving party. Price v. Leland, 149 Vt. 518, 521 (1988).

Reconsideration of Summary Judgment

Mr. Davis argues that under Vermont case law, “substantial compliance” is not enough to
support a plea and sentencing under V.R.Cr.P. 11(f). The standard is strict compliance, and Mr.
Davis argues the undisputed material facts show the criminal court did not adhere to strict
compliance with V.R.Cr.P. 11(f).

This court finds that Mr. Davis’ reading of the standard is correct, and therefore the court
will revisit its decision on summary judgment. The Vermont Supreme Court in In re Bridger
stated that while substantial compliance may suffice for technical rule violations during the plea
colloquy under Rule 11(c), it is the criminal court’s ultimate role at sentencing to be assured a
person makes a plea voluntarily and knowingly under Rule 11(f). In re Bridger, 2017 VT 79,
¶ 20, 205 Vt. 380. Not pleading to an element of the offense that is the basis of the plea
agreement renders the plea involuntarily. Id.

It is “a constitutional imperative” for a plea to be voluntary and knowing. In re Pinheiro,
2018 VT 50, ¶ 12, 207 Vt. 466. This imperative is embodied in Vermont Rule of Criminal
procedure 11(c), which sets forth the requirements for a plea colloquy, and 11(f), which sets
forth the requirements for sentencing based on that colloquy. Rule 11(f) states
“[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon
such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.”
A defendant’s guilty plea is not voluntary unless he admits on the record to facts supporting each
element of the offense. See In re Bridger, 2017 VT 79, ¶¶ 22-24, 205 Vt. 380. “The requirement
of Rule 11(f) involves an understanding by the defendant that the conduct admitted violates the
law as explained to him by the court.” Id. ¶ 11.

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Mr. Davis pled to a charge of aggravated assault under 13 V.S.A. § 1024(a)(1). The
statute states: “A person is guilty of aggravated assault if the person: (1) attempts to cause
serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under
circumstances manifesting extreme indifference to the value of human life[.]” 13 V.S.A.
§ 1024(a)(1).

While recklessness is a mental state which may support the charge, this was not the
mental state envisioned by the plea agreement which resulted in Mr. Davis’ current sentence. At
the change of plea, the State rejected the idea that the plea agreement included the “reckless”
mental state. Pet.’s Ex. 2 at 16. The agreement was that Mr. Davis would plead to purposely or
knowingly causing serious bodily injury to another. Mr. Davis, multiple times, denied intending
to cause the serious bodily damage he admitted to causing. Mr. Davis did appear, as the criminal
court noted, to be willing to admit to recklessly causing the injury, as the factual basis for the
charge.

Recklessness and purposefulness are two different mental states. The statute includes the
exact degree of recklessness required—that is recklessness with an extreme indifference to
human life. 13 V.S.A. § 1024(a)(1). The inclusion of “purposely” in Vermont’s Aggravated
Assault Statute originated in the Model Penal Code. State v. Trombley, 174 Vt. 459, 461 (2002)
(mem.). The definition of purposely in the Model Penal Code is:

A person acts purposely with respect to a material element of an
offense when:
(i) if the element involves the nature of his conduct or a result
thereof, it is his conscious object to engage in conduct of that
nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is
aware of the existence of such circumstances or he believes or
hopes that they exist.

Model Penal Code § 2.02(2)(a). The court’s statement that the assault “was not an
accident . . . with regards to the resulting injury to Mr. [Stephens], that does not have to be the
intentional to cause him, but by the strike of the blow of the assault that resulted in the serious
bodily injury to him,” Pet.’s Ex. 2 at 17, even when looked at in the light most favorable to the
Commissioner, at best conflates recklessness with purposefulness. Mr. Davis only agreed to a
factual basis that stated his mental state lacked intention, and the actions which resulted from that
state were not accidental. While tailoring the intent element based on the facts Mr. Davis was
pleading to substantially complied with the procedural requirements for a plea colloquy under
11(c), the inaccuracy of the court’s statement is not enough for the strict compliance of
establishing the factual basis of the elements.

Purposely in the assault statute requires “a conscious object” and “aware[ness] of the
existence of such [attendant] circumstances.” Model Penal Code § 2.02(2)(a). Awareness and
consideration is emphasized in the definition. The court’s explanation of the factual basis of Mr.
Davis’ intent—unintentionally but not accidentally—does not fit the idea that assault was Mr.
Davis’ conscious object. Mr. Davis’ subsequent statement of “I agree that I assaulted him

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purposely, yes[,]” could not have been fully informed by the preceding discussion of what
purposely meant in his particular case. Pet.’s Ex. 2 at 17. Therefore, the plea colloquy in this
case violated Rule 11(f), as the court did not ensure that Mr. Davis was admitting to the factual
basis of his plea. Mr. Davis’ plea was not knowing and voluntary as a result.

Relief

Under the summary judgment rules which apply to this case, “[i]f the court does not grant
all the relief requested by the motion, it may enter an order stating any material fact—including
an item of damages or other relief—that is not genuinely in dispute and treating the fact as
established in the case.” V.R.C.P. 56(g). Mr. Davis has asked for relief in the form of vacating
his conviction. There is another pending claim on which relief could be granted, but for which
the record has not been fully developed. Given the nature of the second claim, the court reserves
ruling on the appropriate relief until all of the claims have been litigated.

For the purposes of the ongoing litigation, it is deemed undisputed in this case that: (1)
Mr. Davis did not admit to the factual basis of a purposeful intent for an aggravated assault
charge during the plea colloquy in Docket 77-1-19 Bncr. (2) The sentencing court never stated
the proper intent for the purpose of a plea to “purposely, knowingly” assault a person when
reviewing the factual basis of the plea with Mr. Davis.

Order

Petitioner’s Motion 6 is granted.

The decision on Petitioner’s Motion 4 is vacated, and Motion 4 is granted.

Signed electronically April 1, 2026 pursuant to V.R.E.F 9(d).

_________________________________________
David Barra
Superior Court Judge

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