State v. Koons, Jr., 2011 VT 22.
Defendant was convicted of one count of sexual assault on a minor and one count of lewd or lascivious conduct with a child. On appeal, he argued that his six-to-twenty-five-years-to-serve sentence wa grossly disproportionate to the crimes; and that “the sentencing court improperly relied on conduct underlying a prior acquittal without providing notice and an opportunity to respond.” The SCOV agreed with the second argument, vacates the sentence, and returns to sender (but a different postmaster) for sentencing.
This case arose—mostly—out of a consensual sexual relationship. However, at the time Defendant was nineteen and the complainant was fifteen. The relationship ended just short of the complainant’s sixteenth birthday. The complainant got pregnant and believed defendant to be the father. DNA testing later disproved his paternity. The charge of lewd or lascivious conduct stemmed from an incident in which Defendant and Complainant laid in bed with another fifteen-year-old girl. At trial, Defendant denied everything—including that he even known the girls.
The jury found Defendant guilty on both counts.
A presentence investigation report (PSI) showed an extensive criminal record and several probation violations, belying the Defendant’s relative youth. The PSI recommended a sentence of ten-to-twenty-five years to serve for the sexual assault and a consecutive sentence of five years to serve for the lewd or lascivious conduct.
The Defendant’s psychological evaluation, however, concluded that the recommended sentence was excessive. Among other things, the evaluation noted the relative severity of the offense; that Defendant might benefit from programming; and that he seemed to be taking responsibility for his offenses. Defendant submitted a sentencing memorandum arguing against the PSI recommendation.
The sentencing hearing—at least the part the SCOV finds worth sharing—reads like a What NOT to do at Sentencing manual. Let me paraphrase for you:
Prosecutor: Your Honor, remember how I totally prosecuted this kid before for, like, the same thing, and he got acquitted and how I thought that was totally bogus?
Judge: I do,
Prosecutor: Yeah, so I just thought I would mention it before your Honor sentences him today.
Judge: I hear you. You should have won that one—so here’s how it is going to go. Defendant, you beat the rap last time, but the rap has come back. I am going to sentence you for some extra time.
On this appeal, we’re in “clear error” territory because Defendant failed to challenge the use of the charge on which he was acquitted at sentencing. The standard is high. “First, there must be an error; second, the error must be obvious; and third, it must affect substantial rights and result in prejudice to the defendant.” Once you get past that threshold, it only gets corrected if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Still, the SCOV has no problem seeing the error here. Although I’ve exaggerated the exchange at issue, the error is self-evident—the State doesn’t get to bring up a previous acquittal for the first time at a sentencing hearing, and the trial court cannot factor that into the sentence. That’s just not fair.
The SCOV finds that the error here is obvious or “plain.”
’s Rules of Criminal Procedure require that, at the very least, information to be used at sentencing be disclosed so that the parties have sufficient time to react to it and determine how they might challenge it and so forth. It’s plain error to break out a charge that resulted in an acquittal for the first time at the sentencing hearing. So far, we’ve got two out of three. Vermont
With a dying gasp, the State asserts that there was no prejudice to Defendant because the trial court did not rely on the earlier-acquitted conduct, and even if it did, any possible reliance was inconsequential. The SCOV does not find this argument convincing, noting that the record reveals that there was significant reliance by the trial court on this information at sentencing. Next.
The SCOV notes that there is a final question as to whether the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” The SCOV concludes that the “trial court’s reliance on undisclosed acquitted conduct without the safeguards of Rule 32(c)(3) is precisely the kind of error that that may impair the integrity of the judicial process and tarnish its reputation for fairness.” Accordingly, the SCOV vacates Defendant’s sentence and remands for resentencing before a different judge.
While everyone has “the one that got away,” the prudent prosecutor will bear that cross in silence at sentencing.