Wave Him Through

by Daniel Richardson

State v. Sheperd, 2011 VT 44 (mem.)

Today's case is brief, procedural footnote that belies a longer, complicated, and seamy back story. 

Defendant was working as a nanny when he was arrested and charged with molesting a ten-year-old boy under his care.  Defendant's transgressions went deeper than just this incident.  Police found hundreds of child pornography pictures on his computer and evidence indicating that Defendant was a known pedophile with a national track record.  Defendant’s modus operandi involved using the internet and Facebook to obtain nanny jobs that brought him into contact with children. 

You are not the only one who got a chill down the spine.

At the trial court level, Defendant pleaded guilty to two of the most serious charges, out of the dozen pending, and was sentenced to twenty-five years to life.  While you would expect this to be the end of the story, it is not.  Vermont Rule of Appellate Procedure 3(b)(2) gives an automatic appeal to anyone who receives a life sentence.  This right to appeal can only be waived "in open court."  So, whether Defendant sought an appeal or not, one was docketed and begun.

There is good sense to this rule.  Life imprisonment is the most serious penalty that can be imposed in the state courts of Vermont.  The State has an interest in making sure that such sentences are carefully reviewed and that convicted defendants have their day in (appellate) court to review any deficiencies in evidence or procedure at the trial court.  These interests could not be served if an appeal could be lost on technical grounds simply because the attorney or defendant failed to file the notice of appeal on time.  It would also be a waste of time for a represented defendant since such a mistake would likely warrant review and potential reversal on a petition for post-conviction review (a process akin to habeas corpus whereby a convicted defendant can ask a court to review the procedural fairness and adequacy of her representation).  In such cases, the SCOV wants to review the case the first time, clear up any substantive defects in the verdict or the judge's bench rulings and either remand while the case is still fresh or sign off on the conviction as being up to snuff.  We as a society want this type of check on the system because it brings more scrutiny to the process and weeds the mistakes from the meritorious earlier rather than later.   

The problem here is that neither the State nor the Defendant want to take an appeal.  Defendant's plea was pursuant to an agreement, and he has no reason to challenge it.  In fact, Defendant and the State filed a stipulated motion to dismiss the appeal.

Unfortunately, the language of Appellate Rule 3 gets in the way.  Defendant can only waive the appeal "in open court," which means that there needs to be a hearing, and the SCOV has to ask Defendant if he understands what he is doing and has to make sure that the decision is informed and voluntary.  So the SCOV rejects the stipulated dismissal and orders a hearing set for the waiver issue. 

Concurring with the majority, Justice Johnson goes on to note that this situation is a bit foolish since Defendant already entered into a plea agreement on the record with exactly the type of colloquy expected here.  A hearing will not change or clarify anything.  She agrees with the majority, though, that Rule 3 makes such a hearing mandatory, but expresses her opinion that it is clearly a foolish consistency.  She recommends that the Criminal Rules Committee take a look at the issue with an eye toward revising in light of such situations.

In the end, this case does not alter Defendant's fate one iota but simply adds one more step to the process.  We can take comfort in the exercise as proof that the SCOV and the system take the protection of such rights seriously, which is probably the only comfort one can expect in a case such as this.