Justia Vermont Supreme Court Opinion Summaries

The State appealed a PCR court’s order granting petitioner’s motion to amend its previous order and vacate all thirteen convictions for which petitioner Brian Shannon entered pleas in 2014. Petitioner had two prior felony convictions when he was charged with three felony counts of aggravated domestic assault in June 2012. In June 2013, while the June 2012 case was awaiting trial, petitioner was charged with two new counts of aggravated domestic assault; one count of felony driving while intoxicated (DWI), third or subsequent offense; and seven misdemeanors. In January 2014, the State’s attorney sent petitioner’s lawyer a letter stating that if petitioner was convicted of the 2012 charges, the State would seek a sentence enhancement in connection with the 2013 charges. However, the law would not have permitted a habitual offender enhancement to be added to the 2013 charges, because a defendant could only be charged as a habitual offender if they committed a felony at a time when they already have three felony convictions. Despite this mistake of law, the State, petitioner’s two attorneys, and the trial judge in the 2012 case failed to catch the error. Although petitioner initially refused to plead guilty to a felony before trial, several concerns arose at trial which motivated him to enter a plea for the 2012 and 2013 cases. In February 2014, petitioner agreed to plead no contest to three felonies, for which the court sentenced him to one-to-five years on the three counts, two of the sentences to run consecutively. On the remaining ten charges, petitioner pled no contest and received deferred sentences with no required domestic-violence programming. The State argued that the PCR court erred because contract law required petitioner to be returned to the same position he was in before the plea agreement as to all thirteen charges even though petitioner received and completed deferred sentences for ten of these charges under the plea agreement. The Vermont Supreme Court found that because the PCR court did not have jurisdiction over petitioner’s deferred sentences charges, it properly did not address the State’s substantive contract claims regarding those charges. Accordingly, judgment was affirmed. View "In re Brian Shannon" on Justia Law

In consolidated appeals, defendants A.P. and Z.P. challenged a superior court’s denial of their motions for expungement. They argued the court erred by interpreting V.S.A. 7603(g) to provide an avenue for expungement only to individuals who have been arrested or cited, but not charged with criminal offenses by information or indictment. To this, the Vermont Supreme Court agreed and reversed and remanded. View "Vermont v. A.P." on Justia Law

Defendant Elizabeth MacFarland appeals convictions for resisting arrest and unlawful trespass following a bench trial in which the trial court refused to consider her diminished-capacity defense. Defendant was arrested following a night of drinking at a Brattleboro bar. In apparent response to the bouncer’s question, defendant spoke incoherently about politics and her family. The bouncer persisted and again asked her to speak with him outside. Defendant refused. The bouncer then pulled on defendant’s bar stool and told her she “had to leave.” Defendant stood up from her stool, ran to a corner, and muttered to herself. Soon thereafter, the bouncer called the police, and two Brattleboro police officers arrived a few minutes later. Officers asked defendant to step outside; officers stood defendant up by her arm but she went limp and had to be carried out. Relying on Vermont Rule of Criminal Procedure 12.1 and its own scheduling and discovery order, the trial court found that defendant failed to properly notify the State of her intention to argue diminished capacity. Defendant argued the plain meaning of Rule 12.1 did not require notice of diminished capacity when a defendant does not rely on expert witnesses, that the trial court’s scheduling order did not independently provide a basis for notice, and that, as charged, the notice element of misdemeanor unlawful trespass denoted a subjective standard. The Vermont Supreme Court agreed that the trial court erred in refusing to consider diminished capacity, and that the error was not harmless. Accordingly, judgment was reversed and the matter remanded for further proceedings. View "Vermont v. MacFarland" on Justia Law

Defendant Devan Calabrese appealed his convictions for aggravated assault with a deadly weapon, unlawful possession of a firearm, and violation of conditions of release, arguing that the trial court erred in denying his motion to suppress evidence of a bullet on the ground at the site of the alleged crimes, and permitting the State to introduce evidence that he made certain racially charged statements. After its review, the Vermont Supreme Court concluded the trial court applied the incorrect legal standard to the suppression question, and remanded for additional factfinding and a reassessment of the motion. With respect to the court’s admission of evidence that defendant made statements evincing racial animus, the Supreme Court concluded the trial court did not abuse its discretion in admitting the testimony. The Court thus reversed the trial court’s ruling denying defendant’s motion to suppress and remanded for further proceedings. View "Vermont v. Calabrese" on Justia Law

In an interlocutory appeal, the State contested a trial court’s order granting defendant Shannon Barry’s motion to suppress statements she made to law enforcement officers before her arrest. In June 2019, the Barre City Police Department launched an investigation after Heather Larocque died from taking fentanyl-laced heroin. The investigation led the officers to believe defendant sold the fentanyl-laced heroin to Larocque. Officers found defendant enter a convenience store and asked to talk to her as she exited. At no point during the discussion, which lasted between ten and twenty minutes, did the officers tell defendant she was free to leave or to not answer their questions. Defendant never requested to leave but believed she would have been arrested if she had tried to do so. She did not feel threatened and did not feel the officers were being dishonest in their conversation with her. Throughout the conversation, defendant was not handcuffed, and the officers’ weapons remained holstered. At the conclusion of the conversation, the officers arrested defendant. At no time prior to her arrest was defendant informed of her Miranda rights. Defendant was charged with selling or dispensing a regulated drug with death resulting. The Vermont Supreme Court concluded that defendant was in custody and had not been advised of her Miranda rights outside the convenience store, therefore the Court affirmed the suppression order. View "Vermont v. Barry" on Justia Law

Plaintiff Zachary Rose challenged the decision of the Vermont Department of Corrections (DOC) to terminate him from treatment programming without a hearing. He argued his program termination constituted punishment under 28 V.S.A. 851, and therefore required a hearing and due process under section 852. The superior court granted summary judgment to DOC, concluding that the termination was not punishment and that plaintiff’s claim was not reviewable under Vermont Rule of Civil Procedure 75. The Vermont Supreme Court concluded that DOC’s decision was reviewable, but on this record, neither party was entitled to summary judgment. Accordingly, judgment was reversed and remanded. View "Rose v. Touchette" on Justia Law

Defendant Devan Calabrese appealed his convictions for aggravated assault with a deadly weapon, unlawful possession of a firearm, and violation of conditions of release, arguing that the court erred in denying his motion to suppress and permitting the State to introduce evidence that he made certain racially charged statements. After review, the Vermont Supreme Court concluded the trial court erred in concluding the trooper’s search did not violate Article 11 and the trial court’s denial of the motion to suppress was thus error. With respect to the evidence that defendant made statements evincing racial animus, the Supreme Court did not specifically rule on defendant’s challenge, but set forth the principles that should guide the trial court if the issue arose on remand. View "Vermont v. Calabrese" on Justia Law

The issue this interlocutory appeal presented for the Vermont Supreme Court's review centered on whether evidence seized by federal Border Patrol agents during a roving patrol (pursuant to their authority to conduct warrantless searches under 8 U.S.C. 1357) was admissible in a state criminal proceeding when that search did not comply with Article 11 of the Vermont Constitution. Defendants Phillip Walker-Brazie and Brandi-Lena Butterfield argued that because the overwhelming purpose of Vermont’s exclusionary rule was to protect individual liberty, the Supreme Court should apply the exclusionary rule and suppress the evidence pursuant to Article 11. To this the Supreme Court agreed, holding that such evidence is inadmissible in Vermont criminal proceedings. View "Vermont v. Walker-Brazie" on Justia Law

In December 2006, petitioner Laura Hernandez was charged with two counts of selling or distributing heroin, based on two sales of heroin by petitioner to an informant. Petitioner’s first counsel was assigned in January 2007. The parties executed a discovery stipulation, requiring all affirmative defenses, including entrapment, to be noticed within ten days of the close of depositions. In September 2007, petitioner’s first counsel withdrew and new counsel was assigned. The parties engaged in extensive discovery, including depositions of various witnesses. Defendant did not notice any affirmative defenses. On the first day of trial, in January 2009, Attorney Kolitch filed proposed jury instructions and in that proposal requested an entrapment instruction for the first time. The court ultimately declined to instruct on entrapment, concluding that petitioner had not made a timely request in accordance with the parties’ stipulation and that this delay prejudiced the State. During deliberations, the jury sent a question to the court asking whether it should consider whether petitioner was pressured by the informant to sell. The court answered: “You may consider the evidence of whether or not the defendant was pressured by the confidential informant and the terms of [the Informant Agreement] the same as you consider all other evidence.” The jury found petitioner guilty. Petitioner moved for a new trial, arguing that the court erred in declining to instruct on the entrapment defense. Before that motion was resolved, petitioner entered a plea agreement resolving this and other cases. As part of the plea, petitioner agreed to withdraw her motion for sentence reconsideration and to give up all rights of appeal in connection with the criminal charges involved in the plea agreement. In 2018, petitioner filed this PCR, arguing that Attorney Kolitch provided ineffective assistance of counsel in her criminal case by failing to timely raise an entrapment defense and to make constitutional arguments in support of allowing an instruction despite the late notice, and that she was prejudiced by Attorney Kolitch’s failures. The Vermont Supreme Court concluded the undisputed facts demonstrated that any error by counsel did not prejudice petitioner, and therefore affirmed. View "In re Laura Hernandez" on Justia Law

Defendant Ryan Hovey appealed his convictions on two counts of aggravated sexual assault, arguing that the two convictions violated double jeopardy because, as charged under the circumstances, they constituted one offense. Additionally, defendant argued that probation condition 41, which required him to work and reside where his probation officer approved, was an improper delegation of power to his probation officer. The Vermont Supreme Court agreed that, as charged under the circumstances, defendant’s convictions violated double jeopardy and remanded for the State to elect which aggravated-sexual-assault conviction should stand. Furthermore, because the trial court failed to support condition 41 with findings, the case was remanded to give the trial court an opportunity to justify, revise, or remove the condition. View "Vermont v. Hovey" on Justia Law