Defendant appealed the trial court’s order revoking his probation. On appeal, he argued that he did not receive a “certificate explicitly setting forth” his probation conditions, as required by 28 V.S.A. 252(c), and that he did not have notice of the conditions. He also contended that the court did not make adequate factual findings regarding the credibility of defendant’s wife (the complainant), and that the court’s findings were erroneous. The Supreme Court agreed with defendant’s claim as to the failure to comply with the requirements of section 252(c) and reversed on that ground. View "Vermont v. Hemingway" on Justia Law

Husband appealed the trial court’s final divorce order. He argued the court erred by including certain items as part of the marital estate, awarding wife a disproportionate share of the marital estate, and failing to award him maintenance. Finding that the trial court abused its discretion with respect to "the Danby property," the Supreme Court reversed and remanded the case so that the trial court could further consider the Danby property under the appropriate statutory provision. Given that the case was remanded, the Court did not reach husband’s final argument that the court’s distribution of marital property unfairly favored wife. View "Coburn v. Cook" on Justia Law

In a post-conviction relief (PCR) proceeding to vacate convictions based on a change of plea following a plea agreement, the court granted petitioner’s motion for summary judgment. The PCR court concluded that the change-of-plea colloquy was fundamentally flawed because the criminal court did not specifically ask petitioner if his plea was voluntary and free of undisclosed coercion or promises as required by Vermont Rule of Criminal Procedure 11. The State appealed that decision, arguing that the colloquy substantially complied with Rule 11, the record demonstrated the plea was voluntary, and petitioner failed to allege actual prejudice. The Supreme Court agreed with the State, and reversed and remanded this case for further proceedings. View "In re Hemingway" on Justia Law

Mother and father were in a long-distance relationship for several years, throughout which mother lived in Vermont and father in Florida. In 2006, the parties had a child together. Although they never lived together as a family, parents continued taking regular trips with the child to visit each other until 2010, when they ended their relationship and mother filed a parentage action. Following the superior court’s amendment of a parent-child contact order, and in response to a child support order remanded to the magistrate by the superior court, appellant mother sought to overturn the superior court’s amendment and raised a number of issues with both the superior court and the magistrate’s treatment of father’s income for child support purposes. Upon review of the particular facts of this case, the Supreme Court affirmed the superior court’s amended parent-child contact order and dismissed mother’s appeal of issues regarding the child support order. View "Patnode v. Urette" on Justia Law

Petitioner filed a petition for post-conviction relief (PCR) alleging ineffective assistance of counsel in his underlying criminal case because his lawyers induced him to reject a plea bargain for a much lower sentence "by misrepresenting the potential maximum sentencing exposure petitioner was facing at trial." The superior court appointed a lawyer from the Prisoners’ Rights Office of the Defender General to represent petitioner in that court. The appointed public defender accepted representation and proceeded to represent petitioner throughout the trial court proceeding. The State moved to dismiss the petition under 13 V.S.A. 7134 because it was "a second or successive motion for similar relief on behalf of the same prisoner." The public defender answered that the case did not fit within the statute because the theory on which this petition was based had not been raised in earlier PCR petitions because it was not available at the time of the earlier petitions. The superior court granted summary judgment for the State. Shortly thereafter, the public defender filed a notice of appeal on petitioner’s behalf. In a letter to petitioner, the public defender said she initially thought there were no grounds for appeal, but then said "I changed my opinion and filed a notice of appeal for you." She added, however, that since filing the notice of appeal she discovered the Defender General’s office had a conflict of interest so the case had been assigned to conflict counsel. The first assigned conflict counsel withdrew because her firm had done a merits review for the Defender General on petitioner’s ineffective-assistance-of-counsel claim in connection with a prior PCR action. Counsel concluded that the firm’s prior negative merits review created a conflict of interest. The case was then assigned to attorney Michael Rose. Attorney Rose filed a motion for leave to withdraw, citing Vermont Rule of Professional Conduct 3.1 and case law. Because it became clear during the argument on that motion that the Defender General had not gone through the procedure it typically goes through before seeking leave to withdraw on the basis cited by Attorney Rose, the Supreme Court invited the Defender General to present its position on the motion. Upon further review, the Supreme Court granted Attorney Rose’s motion for leave to withdraw, and it did not appoint new publicly funded counsel. View "In re Bruyette." on Justia Law

Mark, the father of D.S., and Todd, the father of M.H., appealed the trial court’s order terminating their residual parental rights. The children shared the same mother. Both fathers had extensive criminal records and were incarcerated for most of their children’s lives. The Department for Children and Families (DCF) became involved with the family in December 2008 based on concerns of substance abuse, sexualized behavior, domestic violence, and neglect. In January 2012, the children were taken into custody pursuant to an emergency care order. At the time of the termination hearings, the court found that neither father played constructive roles in their children's lives. Finding no reversible error in the trial court's decision, the Supreme Court affirmed the termination of parental rights. View "In re D.S., In re M.H." on Justia Law

Defendant Kyle Bolaski appealed his conviction for second-degree murder after a jury trial. He argued the trial court erred in: (1) not instructing the jury that the jury had to find an absence of passion or provocation; (2) excluding evidence of the victim’s mental health history in the months before the incident; and (3) dismissing a juror during the trial because she reported having followed the case during the time of the grand jury. On appeal, defendant argued that even though his case was presented as a self-defense case, there were sufficient facts in evidence to merit an instruction on passion or provocation for the second-degree murder charge. He also argued that the exclusion of the victim’s mental health evidence was error because it was admissible under Rule 404(b). And lastly, he argued that the dismissal of a juror partway through the trial because she admitted to having followed the story of the case during the grand jury phase was improper. The Supreme Court could not conclude that the instructions in this case were full, fair and correct on the elements of second-degree murder, assuming that the trial court’s decision to charge voluntary manslaughter as a lesser-included offense was proper; nor could the Court conclude that the jury was not misled, despite the more accurate statement of the law in the voluntary manslaughter instruction. Some of the confusion in this case resulted from labeling defendant’s theory as trying to establish the victim’s motives for his actions. The Court concluded that the word was misused in this context. "If the medical records, for example, contained evidence that defendant had engaged in misconduct with respect to the victim’s girlfriend, we might describe that evidence as establishing a motive for the victim pursuing defendant with a splitting maul. Nothing like that is in the medical evidence. Instead, it relates generally to the victim’s mental health condition at the time of the killing, a circumstance that we would not describe in this case as motive." Based on its review of the excluded evidence, the Supreme Court concluded that in general it was relevant to defendant’s self-defense theory for the reason that defendant argued. The Court did not reach defendant's juror dismissal issue, and reversed and remanded this case for a new trial. View "Vermont v. Bolaski" on Justia Law

Plaintiff Linda Stone sued the Town of Irasburg alleging that the selectboard had acted unlawfully in ordering her, as town treasurer, to raise her bond to $1,000,000. She sought monetary damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process. She also asserted that the Town was obligated to pay her attorney’s fees pursuant to statute. In several different orders, the trial court granted the Town summary judgment on all counts. Plaintiff appealed. Upon review, the Supreme Court affirmed in part, and reversed and remanded in part. The Court concluded plaintiff presented sufficient evidence to demonstrate a question of fact as to whether a July 12 hearing adequately protected her due process rights. "To remedy a stigma-plus violation through a post-deprivation name-clearing hearing, due process requires more than a chance to speak. It requires an opportunity to clear one’s name before a body which is sufficiently neutral that a person has some realistic chance of success. [. . .] It was error to make a contrary factual determination in favor of the Town in the context of summary judgment." The Court affirmed the trial court with regard to plaintiff's civil rights, tortious interference and defamation claims, and affirmed in all other respects. The case was remanded for further proceedings. View "Stone v. Town of Irasburg" on Justia Law

"Belle" is an eleven-year-old German wirehaired pointer who was greatly loved by husband and wife. The parties had no minor children, and they were able to reach an agreement on the division of their property and other financial issues - except for Belle. They came to the final hearing for a ruling on which one of them would receive the dog in the divorce decree. At the conclusion of the hearing, the court awarded the dog to husband. It found that either party would provide the dog with a good life, but gave a slight edge to husband because the dog was accustomed to the routine of going to the clinic every day. The court balanced that factor against the dog’s familiarity with the marital home, which the parties agreed wife would receive as part of the property settlement. It found that husband "treats the dog like a dog," while wife is more doting and treats the dog like a child. The court concluded that the dog would do better with husband’s balanced attitude towards the animal. On appeal, wife claimed that the court erred in refusing to consider allocating the dog to both spouses in a joint arrangement. The Supreme Court affirmed the family court decision on two grounds: (1) the factors identified and considered by the court in allocating the dog were appropriate; and (2) the family division cannot enforce a visitation or shared custody order for animals: "[t]he court need not specify the weight given to each factor, but is required only to provide a clear statement as to what was decided and why." View "Hament v. Baker" on Justia Law

Father appealed a trial court’s order adjudicating B.R. a child in need of care or supervision (CHINS). He argued that the court’s decision was not supported by evidence. B.R. was born in November 2012. On Monday, March 4, 2013, the Department for Children and Families (DCF) filed a petition alleging that B.R. was CHINS, and it obtained an emergency care order. Shortly before the CHINS petition was filed, an affidavit was filed describing the circumstances surrounding mother’s March 1, 2013, arrest for driving under the influence of drugs with her two older children in the car; mother’s statements to the arresting officers about being stopped the day before for possessing a methadone pill and crystal methamphetamine, drugs that she stated belonged to father; mother’s admission to the arresting officers that she had cooked methamphetamine with father at the family’s home the night before her DUI arrest; mother’s concern at that time about B.R.’s welfare in father’s care, and her fears that father had taken the three-month-old child to a "meth house" in New York; and mother’s subsequent statements to police on Saturday, March 2, that she had retrieved B.R. from a "meth house" in New York where father had taken him. Finding sufficient evidence to support the trial court's decision, the Supreme Court affirmed. View "In re B.R." on Justia Law