Saturday, October 12, 2013

Potential Parole Push

In re Blow, 2013 VT 75

Unfortunately for Petitioner, the fallout from an ex-post-facto misapplication of law isn’t necessarily radioactive in the legal sense.    

Petitioner pleaded guilty to three counts of lewd and lascivious conduct and was sentenced to three-to-eight years in prison.  While Petitioner was in prison, the legislature enacted a delayed-release statute that the DOC applied to Petitioner’s convictions to extend his minimum sentence.

Petitioner successfully challenged the extension of his minimum sentence with an ex-post-facto claim, and the Department of Corrections (DOC) corrected his sentence.  Petitioner’s current claim is that the corrected application delayed his participation in required pre-release programming, which effectively denied him a chance at parole once his minimum was complete.    


Inmates are generally up for parole consideration when they complete their minimum prison terms.  In Petitioner’s case, that was in February 2011.  But before the DOC would recommend Petitioner for parole, it required him to complete a 12-to-18-month sex-offender-treatment program.  The timing of the programming is generally calculated so that the programming completes close to the inmate’s potential release date.

But the legislature passed the delayed-release statute in the meantime, which pushed Petitioner’s release date out several years.  Petitioner and several other inmates challenged the DOC’s application of the statute to them as an ex-post-facto violation and were successful.  And so, Petitioner’s minimum sentence returned to February 2011.  Petitioner waived his early 2011 parole hearing, however, “because his case worker told him he had no chance of parole because he had not entered sex-offender programming.”

Petitioner began the required programming in March 2011.  Just under a year later, he had a parole hearing and was denied parole.  So he filed a petition for post-conviction relief, basically arguing that the aftereffects of the misapplication of the delayed-release statute effectively denied him early release and violated his plea bargain—in which he bargained for a shot at early release. 

The State moved to dismiss for failure to state a claim upon which relief could be granted and Petitioner moved for summary judgment.  The trial court granted the State’s motion and Petitioner appealed.

A dismissal for failure to state a claim upon which relief can be granted is appropriate when there ain’t a snowball’s chance in hell for the plaintiff’s claim.  No deference here, the SCOV reviews the case de novo.  All evidence is viewed in the light most favorable to the plaintiff.

Petitioner’s first argument is essentially that if it weren’t for the DOC’s damned application of the found-to-be-ex-post-facto law, he’d have had a shot at getting out early.  The SCOV sidesteps this argument to a certain extent, reasoning that the parole board had other reasons for denying his release and Petitioner actually has been eligible for parole since his minimum release date.  Ain’t no way he was getting out without completing the programming, but still, technically eligible

The SCOV acknowledges Petitioner’s frustration with the interaction between the improper application of the statute (oops—but it’s now fixed) and DOC’s internal programming requirements.  The SCOV notes that if it weren’t for that snafu, Petitioner might have completed programming; he might have gotten released. 

But that doesn’t cut the mustard.  While Petitioner’s dilemma may be collaterally related to the now-remedied improper application of the delayed release statute, it’s only one of many factors contributing to Petitioner’s continued incarceration.  

And the DOC’s programming requirement has always been there.  It was there before the statute was improperly applied because Petitioner   was told he would be eligible to enter programming in June of ’09.   The DOC didn’t change anything, so there’s no retroactive application of a harsher punishment.

And the SCOV reasons that the program is rehabilitative, not punitive.  The SCOV articulates it thus: “Put simply, petitioner is not eligible for release because he is an untreated sex offender, not because a retroactively applied statute continues to bar his release.”

And so, the trial court properly granted the motion to dismiss as far as any ex-post-facto claim goes.

But we’re not quite done.  Petitioner also argues that “the temporary application of the delayed-release statute rendered his plea agreement involuntary.”  Essentially the argument is that he made a deal which gave him a real possibility of parole and the DOC’s misapplication of the statute yanked that away.    
The SCOV begins its analysis of this claim by noting that parties to a plea agreement are bound by its express terms.  The SCOV sees no express promise of parole in the terms of the plea. 

The SCOV does acknowledge that even so, Petitioner has a “chance” if there was a material misunderstanding regarding his parole eligibility when he entered his plea.  Petitioner’s “snowball” here would require (1) that he reasonably relied on a material misunderstanding regarding his parole eligibility; and (2) that he was prejudiced by the misunderstanding.  Under this heat lamp, Petitioner’s snowball melts. 

The SCOV points to a 2008 decision dealing with a change in parole regs after a plea was entered.  Though the inmate claimed knowledge of the parole regs at the time he entered his plea, and the DOC subsequently changed up the rules, the SCOV concluded, after a survey of other states’ laws, that a change to parole-eligibility law after a plea agreement does not render a plea involuntary.  The SCOV reaches the same conclusion here.  You can’t predict the future and such. 

Finally, the SCOV reasons that Petitioner is serving precisely the sentence he bargained for.  The programming was never guaranteed or contemplated in the agreement.  Petitioner doesn’t present a claim upon which relief can be granted.  The SCOV affirms the dismissal.


Who can blame Petitioner for wanting to get out?  And Petitioner’s gripe is legitimate—the SCOV acknowledges that willingly.  But as far as the law goes, Petitioner will just have to do his programming and jump through the DOC’s hoops ‘cause his PCR is DOA.  

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