Saturday, May 19, 2018

Suit For the Sewer

Did someone say "sewer"?
Hayes v. Mountain View Estates Homeowners Association, 2018 VT 41

By Elizabeth Kruska

Longtime readers of our fair blog know that we here at SCOV Law keep an eye on Vermont Supreme Court trends. We know the current hot issues tend to be shenanigans with probation conditions and shenanigans with homeowners associations. This is the latter. Sort of.

Did you know—and it is entirely possible you did not know this—that individual people are allowed to own sewer systems? I’m looking around my workspace right now and I see that I own a lot of things, many of which I probably don’t need. One thing I know I don’t own, nor do I want to, is a sewer system. Because the problem, apparently, is if you own a sewer system, that when you die (and really, I’m not trying to be grim but we’re all going to die), it probably ought to be clear what’s going to happen with that sewer system. And you know what, as an added bonus, let’s throw in some roads and a water system, also, just so that we’ve got a big problem to untangle.

Let’s back up to the late 1970s. Mr. and Mrs. Hayes owned some land in Manchester and decide to develop that land in to a housing subdivision. It was a different time. There was still lead in our gasoline. Coca-Cola came in glass bottles. “Bad President” was defined as “Peanut Farmer.”

Unstated Intent

Need to shed some light here.
In re Cynthia Pinheiro, 2018 VT 50

By Elizabeth Kruska

Ms. Pinheiro filed a motion for post-conviction relief (PCR) based on a defective plea colloquy. Specifically, her position was that during the plea colloquy where she pled guilty to an assault charge, the trial court didn’t identify the mental element of the crime.

Backing up. In 2014 Ms. Pinheiro pled guilty to aggravated domestic assault for shooting her ex-boyfriend in the leg. When a defendant pleads guilty to a criminal charge, the trial court has to go through a colloquy with the defendant. This is done so that it’s clear that the defendant knows he or she is giving up his or her Sixth Amendment trial rights and in some cases, appeal rights. The court has to be satisfied there are actual facts to back up the charge. Generally, this must be done in open court and the defendant must acknowledge that she is giving up these rights and the facts.

Here, the court asked the State’s Attorney to indicate on the record what it would have to prove at trial, and the facts backing it up. There was some discussion, and in this, the court never advised Ms. Pinheiro of the mental element of the charge she faced.

Alexa, Get Me Off the Registry

Careful what you say . . .
State v. Charette, 2018 VT 48

By Amy Davis

The Vermont Sex Offender Registry is a website available to the public that contains information about sexual offenders in Vermont who are required to register. This case questions whether an individual is required to register if the “victim” in the case wasn’t actually a kid, but an undercover police officer. In other words, does it really count if it’s just a sting? Why yes, yes it does.

Defendant pleaded guilty to attempting to lure a child based on his attempt to meet someone be believed was a minor. Supposedly, this wasn’t the guy’s first time trying to do that. Apparently, someone complained about him talking to minors inappropriately, so an investigator posed as a 13-year-old girl named “Alexa” and reached out to him on Facebook. Honestly, the guy should have just asked an Echo Dot to talk dirty to him (NSFW)—it would have ended better. But he asked “Alexa” to meet up with him for sex and he got arrested when he showed up for the meeting.

The plea agreement called for a to-serve sentence, but the parties disagreed as to whether Defendant was required to register as a sex offender. Defendant argued that the plain language of 13 V.S.A. § 5401(10)(B) requires a minor victim. The statute reads, “A person who is convicted of any of the following offenses against a victim who is a minor… (v) sexual exploitation of children as defined in chapter 64 of this title… (x) an attempt to commit any offense listed in this subdivision.” The court concluded that Legislature intended "minor victim" to include an undercover police officer posing as a minor. Defendant appeals.

Monday, May 7, 2018

Picky Pleadings

Are you sure about this? 
Bonk v. Bonk, 2018 VT 15

By Amy Davis

My primary focus in my law practice is divorce and everything that comes with it, such as, what do we do about the kids? Even if we work out a parenting agreement to finalize the divorce, things can change over time, sometimes warranting a change in the parenting schedule. This case looks at whether the trial court can modify parental rights and responsibilities when it’s not specifically raised in the parents’ pleadings.

Mom and Dad divorced in August 2016. They have two children. The parents resided in Enosburg while married, and after their divorce, Dad remained in Enosburg, and Mom relocated to St. Albans. The children continued to attend the same child care and school programs they did prior to the divorce.

The final stipulation ordered that the parents share legal and physical custody (we call it “rights and responsibilities” in Legal Land). The children’s primary residence was with Mom, and the children would attend school in the town where Mom resided (except St. Albans—apparently the parents didn’t like that school).

Sunday, April 29, 2018

Missing a Piece

You need all the pieces . . .
State v. Sawyer, 2018 VT 43 (mem.)

One day after the shooting at Stoneman Douglas High School in Parkland, Florida left seventeen people dead, Jack Sawyer was arrested and was charged with four felony complaints for allegedly attempting to cause a mass shooting at Fair Haven Union High School. One count alleged that he attempted to cause bodily injury to another with a dangerous weapon. Another alleged that he attempted to commit first-degree murder. The remaining two counts alleged that he attempted to commit aggravated murder.

At his arraignment, Sawyer entered pleas of not guilty, and the trial judge ordered him held without bail.

Vermont law generally prohibits defendants from being held without bail, but makes an exception when two elements are satisfied: one, the defendant is charged with an offense punishable by life imprisonment and, two, the evidence of guilt is great. In Sawyer’s case, the trial judge ruled that the State had satisfied its burden with respect to both prongs.

Credit for Custody?

The "fence" has to be intact
State v. Byam, 2017 VT 47 

By Eric Fanning

Defendant/convict Dale Byam appeals a trial court’s denial of his motion seeking credit for time served while he was under pretrial conditions of release. SCOV affirms—but let’s look at the facts of the case first.

Byam was charged with aggravated domestic assault and cruelty to a child. The Orange County Criminal Division imposed conditions of pretrial release including a 24-hour curfew (with exceptions for legal and medical appointments), and that he had to stay in Orange County. The court allowed two exceptions to his curfew. The first allowed him to leave home on Saturdays from 9:00 a.m. to 12:00 p.m. to run errands like checking his mail, going to the bank, and visiting his mother, etc. The second allowed him to visit one of his kids in Washington County.

While he was out awaiting trial, Byam was arrested in Windsor County after being caught driving with a suspended license, and the State charged him with five misdemeanors: two counts of violating conditions of release, driving with a suspended license, resisting arrest, and escape. He posted bail and the Windsor Criminal Division released him on conditions similar to the ones the Orange Criminal Division had imposed, namely a 24-hour curfew with exceptions for medical and legal appointments. The Windsor court referred his case to the Orange Court, and he ended up pleading guilty to the original charges, as well as escape, and violating his conditions of release. 

Competency Conundrum

Owl give you one chance . . .
State v. Sharrow, 2017 VT 25

By Elizabeth Kruska

Let’s have a little bit of a refresher about competency in criminal cases. The government cannot prosecute someone who is not competent to be prosecuted. Competence in the criminal court context is a little different than competence in other areas. Someone could need to have a guardian for purposes of their finances, but be perfectly competent to stand trial in a criminal case. The relevant question is whether a defendant has the present ability to consult with his lawyer with a rational degree of understanding, and whether the defendant has a factual understanding of the proceedings.

Sometimes a person just can’t do it. Whether it’s because of mental illness or even potentially because of organic brain issues, like dementia, a person just might not be able to communicate with his or her lawyer or understand what’s going on.

Even though sometimes it seems clear that someone is or isn’t competent, the court needs to make findings before ruling on the question of competence. The way to get to that ruling is to have testimony from someone qualified to make that determination. That person usually is a forensic psychiatrist.

Sunday, April 22, 2018

Overlooked Objection

Any objections? 
In re Sharrow, 2017 VT 69

By Andrew Delaney

This is a “Yeah, but . . .” appeal.

Attempted second-degree murder is one of those charges that requires the State to prove that there wasn’t any passion or provocation. And attempted voluntary manslaughter is generally a lesser-included offense. Mr. Sharrow’s trial counsel failed to object to jury instructions that didn’t have these elements, and Mr. Sharrow was convicted of second-degree murder.

So Mr. Sharrow filed a post-conviction-relief (PCR) complaint. The PCR court said, “Yeah, that’s not good. We’re going to vacate your conviction because trial counsel was ineffective.” The State appeals, arguing “Yeah, counsel was ineffective, but it wasn’t prejudicial, so the conviction shouldn’t be vacated.” SCOV disagrees with the State and affirms the PCR court.

Sunday, April 15, 2018

Crushing Expectations

It puts the granite in the crusher.
In re North East Materials Group LLC, 2015 VT 79


This is a prequel. I’m no George Lucas, but I can do things out of order too. Here’s the aftermath, which I’ve been told I missed some of the facts in. I can’t promise this one is going to be any better in that regard. Grossly oversimplifying is kind of what we do here. 

This case is about whether multiple quarries and one stone-crushing operation before 1970 grandfather a post-1970 rock-crushing operation. The trial court concluded that “pre-1970 dimension-stone-quarrying operations included intermittent crushing operations throughout the large tract, and that the new crushing operation thus fell within the grandfathered development and did not constitute a cognizable physical change to that preexisting development.” The SCOV majority concludes that the trial court used the wrong legal framework and one of its critical findings wasn’t supported by the evidence. So the whole thing gets kicked back to the trial court (and then goes back to the SCOV, which you can read about here).

So . . . between ’08 and ’12, district coordinators issued a series of jurisdictional opinions with the same conclusion” that North East Materials Group LLC’s (NEMG) rock-crushing activities didn’t need an Act 250 permit because there wasn’t a cognizable change from pre-1970 stuff. Thirteen neighbors calling themselves Neighbors for Healthy Communities (Neighbors) appealed a 2012 decision to the Environmental Division, which reached the same no-cognizable-difference conclusion.

Bail Affirmed

What's the connection? You tell us. 
State v. Stimpson, 2017 VT 97 (mem.)

By Elizabeth Kruska

This is a bail appeal, so it’s fairly short and was heard by three justices.

Mr. Stimpson was initially charged with domestic assault in June of 2017. He pled not guilty to the charge and was released on some conditions of release, including that he could not have contact with the complainant and had to stay at least 300 feet away from her, her home, and her workplace. No monetary bail was set.

This is pretty common. What is less common is what happened next.