Petitioner Cynthia Pinheiro appealed a superior court judgment denying her post-conviction relief (PCR). In her PCR action, petitioner sought to set aside her conviction for aggravated domestic assault on the basis that the plea colloquy was defective under Vermont Rules of Criminal Procedure 11(c) and (f) because the trial court failed to identify the mental element of the crime (that she acted willfully or recklessly) and to elicit a factual basis supporting that element. After review, the Vermont Supreme Court concluded the plea colloquy was not substantially compliant with the requirements of Rule 11(c) and accordingly reversed and remanded for further proceedings. View "In re Cynthia Pinheiro" on Justia Law

In June 2016, Federal National Mortgage Association (“bank”) filed an eviction action against defendant Marjorie Johnston for property located at 49 Pine Street in Rutland, Vermont. Following entry of a default judgment, the court found that service had not been properly completed and bank conceded to vacating the default judgment. Because the time for service had run, the court dismissed the case without prejudice in November 2016. In March 2017, bank filed this eviction action against defendants Johnston and Kamberleigh Johnston, alleging bank had purchased the property in a foreclosure sale and that defendants were the former mortgagors and current occupants of the property. In June 2017, bank filed a notice of voluntary dismissal, seeking to dismiss the case without prejudice. At that time, defendants had not filed an answer or otherwise appeared in the case. The dismissal was entered on June 23, 2017. On July 10, 2017, Marjorie filed a notice of appearance in the case and a motion to reconsider, arguing that the case should have been dismissed with prejudice due to the dismissal of the prior eviction action. Defendant also asserted that instead of allowing a voluntary dismissal, the court should dismiss the case with prejudice on mootness grounds because bank had sold the property prior to seeking a voluntary dismissal. The trial court denied the motion without a hearing. Defendants appealed. On appeal, defendants argued that because a prior eviction action filed by bank had been dismissed, this case should have been dismissed with prejudice. Defendants also contended the court erred in denying their motion to reconsider without a hearing and not dismissing the case on mootness grounds. The Vermont Supreme Court concluded the effect of the voluntary dismissal was not ripe until a third action was filed and affirmed. View "Federal National Mortgage Association v. Johnston" on Justia Law

In late October 2015, two women in Burlington found flyers advertising the Ku Klux Klan at their homes. One of the women was Mexican American; the other, African American. One woman found the flyer folded up and inserted into the mailbox by her front door, while the other woman found the flyer tucked into her front door. Neither woman saw this flyer at neighboring homes. The only other reported sighting was at a local copy store, where an employee reported finding the flyer in one of the store’s copy machines. Police viewed surveillance camera footage from the store and were able to identify defendant, William Schenk. The investigating detective contacted defendant, who admitted to distributing the flyers and explained that he was a “Kleagle,” or recruiter for the Ku Klux Klan. Defendant told the detective that he had distributed a total of thirty to forty flyers in neighborhoods that defendant described as “more white.” Defendant was charged with two counts of disorderly conduct in connection with the distribution of the recruitment flyers in the City of Burlington. For each count, the State charged that the penalty should have been enhanced under 13 V.S.A. 1455 because the crime was hate-motivated. Defendant appealed the trial court’s denial of his motion to dismiss the two disorderly conduct charges and the associated sentence enhancement. The Vermont Supreme Court held that the State failed to establish a prima facie case because defendant’s conduct conveyed neither the physical nor imminent threat of harm that is construed as the definition of “threatening behavior.” Accordingly, the Court did not reach defendant’s challenge to the application of the hate-motivated crime sentence enhancement. The Court reversed and granted defendant’s motion to dismiss. View "Vermont v. Schenk" on Justia Law

R.E.E. & C. Capital Management Services, Inc. (buyer) appealed a trial court order granting People’s United Bank’s motion to compel buyer to complete the purchase of a foreclosed commercial property. Buyer raised three arguments: (1) it was not a party to the foreclosure sale, and the court therefore lacked jurisdiction to compel it to purchase the property; (2) the trial court erred in declining to apply the statutory remedy; and, (3) the trial court erred in ordering specific performance because an adequate remedy at law exists. After review, the Vermont Supreme Court determined a high bidder’s successful bid in a judicial sale, and the court’s subsequent confirmation of the foreclosure sale pursuant to 12 V.S.A. 4954(a), renders a buyer a limited party such that the court is authorized to issue orders directing the buyer’s action relative to the property’s purchase. The Court found 12 V.S.A. 4954 (e) did not limit the Bank’s remedies: “the legal right to an agreement’s completion does not arise exclusively from Vermont’s foreclosure statutes.” However, the Supreme Court found that while specific performance was a permissible remedy in some instances, the trial court did not engage in the analysis of whether this case was one of those instances. Therefore, the trial court’s order of specific performance was an abuse of its discretion, leading the Supreme Court to reverse and remand this case for the trial court to perform that analysis. View "People's United Bank, NA v. Alana Provencale, Inc., et al." on Justia Law

The issue in this case was whether an individual convicted of a sex offense could be compelled to register as a sex offender if the putative victim was an adult undercover police officer posing as a minor child. Defendant Benjamin Charette appealed the trial court’s decision requiring him to register as a sex offender, arguing the plain language of the sex offender registration statute required that the underlying crime be committed against an actual minor victim. Considering the structure and purpose of the statute, the Vermont Supreme Court concluded 13 V.S.A. 5401(10)(B) encompassed attempted crimes against a putative victim who the defendant perceives to be a minor. Accordingly, the Court affirmed. View "Vermont v. Charette" on Justia Law

Defendant Jasen Suhr was charged with sexual assault, in violation of 13 V.S.A. 3252(a)(1), based on allegations that he forced his girlfriend to have sexual intercourse with him without her consent. At that time, defendant was seventeen, and his girlfriend was sixteen. The criminal court transferred defendant to juvenile court in September 2013, but it reversed that decision the next month, returning defendant to criminal court. In December 2013, defendant entered a conditional guilty plea, which was contingent on the family division’s accepting defendant for participation in the youthful-offender treatment program, pursuant to 33 V.S.A. 5281. In February 2014, the family division accepted defendant as a youthful offender and entered the terms of his juvenile probation. The court set a two-year juvenile probationary period, anticipating completion in February 2016. Defendant appealed the trial court’s decision that he violated the terms of his juvenile probation by: failing to attend school, comply with his GPS-monitoring requirements, and participate in a Restorative Justice Panel. Defendant also appealed the trial court’s decision to revoke his youthful-offender status based on these violations. After review, the Vermont Supreme Court determined the trial court’s decision did “not align with the circumstances of this case. … Given that defendant’s underlying conviction was for a sex offense, it was particularly important that treatment include appropriate sex-offender therapy. Based on the court’s findings, defendant was never offered adequate sex offender treatment. His failure to rehabilitate while participating in inappropriate therapy hardly demonstrates that defendant was unamenable to treatment. We find too speculative the court’s prediction that defendant would have violated his probation conditions even if he had received appropriate sex offender therapy. Accordingly, we hold that the trial court exceeded its discretion in revoking defendant’s youth-offender status based, in part, on defendant’s inadequate sex-offender therapy. In determining whether defendant is amenable to rehabilitation on remand, the court should give proper consideration to the adequacy of defendant’s treatment.” The Court affirmed the trial court’s conclusions with respect to defendant’s probation violations for failing to attend school or to comply with GPS monitoring, and for failing to participate in the Restorative Justice Panel, but reversed the trial court’s decision to revoke defendant’s Youthful Offender status. The matter was remanded for further proceedings. View "Vermont v. Suhr" on Justia Law

Katherine Heffernan appealed the trial court’s decision dismissing her complaint, which sought indemnification from the State on a default judgment she obtained against a state employee and which claimed that the State was vicariously liable for the employee’s conduct. The State determined that the acts alleged by Heffernan were outside the scope of the employee’s official duties and that, therefore, the State did not have a duty to defend the employee against Heffernan’s action. Heffernan, unable to locate the employee to make service of process, eventually served him through process by publication. Heffernan notified the State that she had served the employee, and the State again declined to take any action. The employee did not appear or offer any defense in Heffernan’s suit, and the trial court eventually issued a default judgment against him. The court subsequently held a hearing on damages and awarded Heffernan both punitive and compensatory damages. The Vermont Supreme Court found that while Heffernan presented complex arguments, its decision regarding both of her theories of State liability was controlled by the plain language of Vermont’s statutory scheme concerning each issue. Pursuant to the clear limitations on liability in Vermont’s Tort Claims Act, the State retains sovereign immunity relative to the actions alleged in Heffernan’s complaint. As such, the trial court did not err in dismissing her case. View "Heffernan v. Vermont" on Justia Law

From 2006 to 2016, Vermont Gas Systems, Inc. (VGS) operated under an “alternative regulation” plan (ARP). Pursuant to the ARP, VGS’s rates were automatically adjusted every quarter based on changes in gas costs. In 2011, VGS proposed amending its ARP by establishing the System Expansion and Reliability Fund (SERF) as a means of facilitating the expansion of its service into Addison County, Vermont, and perhaps beyond, while maintaining a smooth rate trajectory. At the time of the proposal, VGS would have been required under the ARP’s automatic rate adjustments to reduce customer rates for the spring 2011 quarter by approximately $4.4 million, which would have been the ninth rate reduction in the previous ten quarters. Instead of reducing rates for existing customers pursuant to the provisions of the ARP, VGS proposed depositing that amount annually into SERF to smooth out rate increases resulting from future expansion of services. Under the proposal, VGS’s rates would remain the same rather than be reduced by an automatic adjustment. In this ratemaking proceeding, AARP appealed an order of the Vermont Public Utility Commission that incorporated a memorandum of understanding (MOU) reached by the Department of Public Service and VGS. Among other things, the incorporated MOU set VGS’s firm non-gas rates for the tax year beginning October 1, 2016; allowed VGS to use a specified amount from a fund previously authorized by the Commission to mitigate the rate effects of any system expansion; and established both the penalty for VGS’s imprudent costs associated with the Addison Natural Gas Project (ANGP) and its return on equity. The Vermont Supreme Court reversed and remanded the matter for the Commission to make further findings regarding VGS’s ANGP-related imprudent costs and, if necessary, to reconsider the penalty imposed for those costs under the incorporated MOU. View "In re Investigation into Petiton of Vermont Gas Systems, Inc. (AARP, Appellant)" on Justia Law

In the late 1970s and early 1980s, Richard Hayes developed a subdivision called Mountain View Estates on land jointly owned by him and his wife, Nadine Hayes, in the Town of Manchester. The subdivision grew to include forty residential homes, a school building, and a chiropractic clinic on forty-four lots. From the sale of the first lot in about 1981 until his death in 2004, Richard Hayes paid for maintenance and plowing of the roads that ran through the subdivision and maintained the subdivision’s sewer system and the portion of the water system that he and his wife still owned, without charge to the homeowners. Following the Hayes’ deaths in 2004, a probate proceeding was opened and the Hayes’ adult children, Jeffrey Hayes and Deborah Hayes McGraw, were appointed coadministrators of their estates. The co-administrators sent a letter to the homeowners in the subdivision stating that effective immediately, the homeowners would be responsible for maintaining and plowing the subdivision’s roads. The homeowners refused to assume responsibility for the road maintenance. The homeowners intervened in the probate proceedings of the Hayes’ estates to protect their rights regarding the subdivision. The estates appealed the trial court’s decision that the estates were obligated, based on an agreement between the developers and the homeowners, to continue to maintain and repair the roads and water and sewer systems until the town accepted the dedication of the infrastructure. The Vermont Supreme Court affirmed the court’s findings and conclusions, and remanded the matter to the trial court for remand to the probate division for further proceedings. View "Hayes v. Mountain View Estates Homeowners Association" on Justia Law

In the late 1970s and early 1980s, Richard Hayes developed a subdivision called Mountain View Estates on land jointly owned by him and his wife, Nadine Hayes, in the Town of Manchester. The subdivision grew to include forty residential homes, a school building, and a chiropractic clinic on forty-four lots. From the sale of the first lot in about 1981 until his death in 2004, Richard Hayes paid for maintenance and plowing of the roads that ran through the subdivision and maintained the subdivision’s sewer system and the portion of the water system that he and his wife still owned, without charge to the homeowners. Following the Hayes’ deaths in 2004, a probate proceeding was opened and the Hayes’ adult children, Jeffrey Hayes and Deborah Hayes McGraw, were appointed coadministrators of their estates. The co-administrators sent a letter to the homeowners in the subdivision stating that effective immediately, the homeowners would be responsible for maintaining and plowing the subdivision’s roads. The homeowners refused to assume responsibility for the road maintenance. The homeowners intervened in the probate proceedings of the Hayes’ estates to protect their rights regarding the subdivision. The estates appealed the trial court’s decision that the estates were obligated, based on an agreement between the developers and the homeowners, to continue to maintain and repair the roads and water and sewer systems until the town accepted the dedication of the infrastructure. The Vermont Supreme Court affirmed the court’s findings and conclusions, and remanded the matter to the trial court for remand to the probate division for further proceedings. View "Hayes v. Mountain View Estates Homeowners Association" on Justia Law