The Furlough Waltz

By Nicole Killoran

In re LeClair, 2011 VT 63 (mem.)

As with so many mootness cases, the conclusion of today’s case is rather anticlimactic, and the reader is left with a nagging sense that the SCOV dodged an easy bullet.  But even though the SCOV never gets to the meat of defendant’s appeal, there are at least two lessons for us to draw: first, a criminal defendant does not have a legally cognizable interest in receiving credit for time served if he has “sufficient prospects” for participating in drug court on a new charge; and second, habitual burgling leads to a confusing array of overlapping sentences. 

Defendant is apparently incapable of avoiding the temptation burgling offers.  Though, his concomitant tendency to get caught makes him more Apple Dumpling Gang than Deacon Brody. 

Defendant begins our tale on conditional furlough and serving a three-to-eight-year sentence for two counts of burglary and six other crimes.  In November 2006, he violates the terms of his furlough and is re-incarcerated temporarily.  At that time, police are able to link Defendant through DNA evidence to an April 2004 burglary, and the Department of Corrections revokes his furlough status on a permanent basis for violating his agreement not to commit any illegal acts.  Defendant remains in jail and does not pay bail on his new charge.

Defendant then challenged the revocation of his furlough status.  The trial court concluded that the Department of Corrections had improperly revoked his furlough status because the 2004 burglary had actually occurred before the furlough agreement was created.  The court also sentenced defendant to a term of zero-to-two years, to be served consecutively with his earlier sentences for the 2004 crime.

You might think that this would conclude this convoluted story of sentences, furloughs, and burglaries (oh my!), but you would be wrong.  Defendant sought credit for the 279 days he served between the DOC revoking his furlough status and the trial court’s reversal.  DOC refused and the trial court declined to give him double credit, regardless of whether the Department of Corrections had improperly revoked his furlough status.

As some may face adversity with ice cream, Defendant went out and accrued yet another burglary charge in March of 2010.  At that time, he resurrected his earlier arguments for double credit and appealed to the SCOV under Rule 75.  Defendant argued that he had a “constitutionally protected liberty interest” in his furlough status.  He claimed that the DOC’s improper revocation of his furlough status should translate to double credit.  The SCOV’s analysis is brief: this issue is moot.  Double credit would not result in less time served because defendant has already served his sentence.  Defendant has nothing to gain.

Defendant’s backup argument is a little more sophisticated.  While a case is moot if the party lacks a “legally cognizable interest in the outcome” of a case, there is an exception where there is a “sufficient prospect” that declining to reach a conclusion in an otherwise dead case would result in negative consequences for the litigant.  Under this theory, Defendant argued, he would be negatively impacted if he did not receive credit toward any new sentence he may receive for his new burglary charge, for the time he served in between his new charge and his anticipated release date after fulfilling his previous sentences.  An interesting variation on the pay it forward theory.

Defendant’s attempt to receive credit falls flat.  The SCOV dismisses this issue as moot.  Defendant has not yet been sentenced for his new charge, and he has been admitted into drug court.  The SCOV notes that in all likelihood defendant will not have a sentence to receive credit for because after graduating from drug court he will receive a two-to-five year sentence, “all suspended, with immediate discharge from probation.”  Even if there were “sufficient prospects” that defendant would not graduate from drug court, the State conceded that defendant would receive this credit anyways because he had completed his previous sentences, and was technically serving time for his new charge. 

In other words, buck up kiddo, it won’t be that long.  For the rest of us, perhaps we’ll see Defendant again in the future.  After all, there’s a great big world out there, and not everyone locks their doors at night.