Friday, September 16, 2011

Return to Dogpatch

By Nicole Killoran

State v. Thompson, 2011 VT 98 (mem.).

Today’s case in part stems from our sister state’s refusal to allow a known child molester back into its neighborhoods.  Defendant Thompson, a Massachusetts resident, engaged in some inappropriate touching of his cousin’s buttocks (is there any other kind amongst cousins in this post-Lil’ Abner world?) while on a ski trip in Vermont.  In order to downgrade the charges from felony to misdemeanor, Defendant entered into a plea agreement with the State.  At the change-of-plea hearing, the parties agreed that Defendant could reside in Massachusetts during his probation, so long as Massachusetts probation officials agreed.  Defendant was sentenced to one-to-twelve months, all suspended, and placed on probation with various conditions, some specific to his status as a sex offender. 


When Defendant tried to return home to Massachusetts, the state’s officials advised Defendant that they would not allow him to return to his home due to his status as a sex offender, and the presence of children in the neighborhood.  Defendant filed an emergency motion asking that the trial court either allow him to withdraw his plea or strike the probation condition making it impossible for him to resume his life in Massachusetts.  After consulting with the parties at a July hearing, the trial court issued an order (the July Order) instead striking Defendant’s sentence, and keeping the plea agreement in place for thirty days to allow Defendant to find alternative housing.

Defendant never did find alternative housing.  Within a few months of the July hearing, Defendant moved again to amend and then withdraw his plea agreement, claiming it was flawed because his ability to live in his own home was an essential part of the agreement.  The State opposed Defendant’s motion to withdraw his plea.  After a subsequent hearing considering the merits of the motion to withdraw, the State then submitted a memorandum arguing for the first time that the trial court had no jurisdiction to consider the merits of Defendant’s initial post-conviction emergency motion to withdraw his plea. 

The trial court agreed.  Under Vermont Rule of Criminal Procedure 32(d), a defendant who is in custody under sentence may not make a motion to withdraw a plea.  Because Defendant was in custody under sentence when he moved to withdraw his plea, the court dismissed his motion for lack of jurisdiction, later reinstating his original sentence absent the condition restricting his residence based on the presence of children in the neighborhood.

The SCOV’s starts its two-part analysis of this tangled web of jurisdiction, motions, and pleas by noting that the issue before the SCOV is narrow: whether the State precluded a later jurisdictional challenge by initially acquiescing to the July order striking Defendant’s sentence.  The SCOV’s consideration is therefore limited to the time period surrounding the Defendant’s post-conviction motion to withdraw his guilty plea and the district court’s July Order striking Defendant’s sentence.

The SCOV initially considers whether the trial court had alternative grounds for jurisdiction over Defendant’s initial motion to withdraw his plea.  The trial court based its decision to strike its July Order on the “mistaken belief” that the only issue before the court at the time was Defendant’s motion to withdraw.  The SCOV notes that the Defendant also sought alternative relief, requesting that the court strike the portion of his sentence making it impossible to return home.  Unlike Defendant’s motion to withdraw, the court had jurisdiction over his request to reconsider his sentence under 13 V.S.A. § 7042(a) and V.R.Cr.P. 35(b).  The SCOV concludes that the trial court did not err in considering Defendant’s motion, and did not therefore invite the State’s “belated attack on a decision in which all of the parties acquiesced.”

The SCOV next considers the State’s “acquiescence” to the trial court’s decision to strike Defendant’s sentence.  The SCOV rests its analysis on the alternative relief Defendant plead for in his motion to withdraw, requesting modification of the sentence’s terms to remove the troublesome condition preventing his return home.    If the State wanted to object, the SCOV admonishes, it should have raised a timely objection at the July hearing, “not months later after a series of events stemming from the order had occurred.” 

In the end, the SCOV finds the State’s “belated jurisdictional challenge” insufficient—Defendant was not under sentence when he filed his subsequent motion to withdraw, over which the trial court had jurisdiction.  The SCOV remands to the trial court with instructions to consider first, the standard of review for the parties to focus their pleadings, and second, the merits of Defendant’s motion.

The dissent, written by Chief Justice Reiber and joined by Justice Burgess, contends that the trial court did not have jurisdiction over Defendant’s motion to withdraw at any point in the post-sentencing proceedings.  The Rules of Criminal Procedure are clear, the dissent claims, and preclude the district court from considering a motion to withdraw a guilty plea when a defendant is in custody under sentence.  The “proper avenue” and exclusive remedy for Defendant is a post-conviction relief proceeding after the initial trial and appeal.  Because the trial court did not have jurisdiction over Defendant’s motion to withdraw in July, the dissent insists the court did not have jurisdiction over the subsequent proceedings considering Defendant’s other motions to modify or withdraw his plea. 

The dissent also takes issue with the majority’s reliance on Defendant’s alternative grounds for relief in his July motion to withdraw.  Much of the majority’s conclusions rest on the assumption that Defendant asked the trial court to either withdraw his guilty plea or strike a term of his sentence, providing an alternative basis on which the court could assert jurisdiction.  But as the dissent notes, sentence reconsideration is “a limited remedy,” and “not intended as a forum to review post-incarceration circumstances or events.”  To allow what the dissent sees as a motion to withdraw a guilty plea to be labeled  a motion to reconsider is to risk intruding on the Department of Corrections’ “scope of responsibility with respect to those in custody under sentence” and the “superior court’s jurisdiction to entertain post-conviction proceedings.”

The dissenter further disagrees with the majority’s treatment of the State’s failure to raise the jurisdictional issue sooner.  It notes that jurisdiction can be raised at any time during the course of proceedings, and that the motions under consideration were all raised within the scope of the same proceedings and before the district court issued a final order.  The dissent also disputes that the district court had jurisdiction over even the general subject matter of the motion, citing to precedent uniformly limiting a district court’s jurisdiction over motions to withdraw guilty pleas to circumstances where the Defendant is not in custody under sentence.  It is important, the dissent concludes, to constrain the trial court’s jurisdiction in such matters in order to avoid a conflict with the State’s post-conviction relief statutes.   

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