State v. Kenvin, 2013 VT
104.
Today’s case provides a compelling look into a prevalent problem in our society today—that of our callous disregard for the safety of our neighbors when we get behind the wheel of a car. It also demonstrates the frustrations experienced by, and the sentences issuing from, our judiciary when confronted with tragedy, which resulted from carelessness, and highlights an issue that I address in my criminal law class—the difficulty presented by situations involving negligence, as a criminal mental state combined with a tragic outcome.
But
today’s major holding isn’t about any of that. Instead, it’s about how much
restriction on liberty prior to conviction or imposition of sentence
constitutes “custody” for purposes of a convicted defendant receiving “credit”
toward a sentence. In other words, today’s
case is a criminal defense practitioner’s dream.
Here’s
the lowdown. Defendant made a “lazy”
left turn into oncoming traffic, striking and killing a motorcyclist. At trial, a jury acquitted him of Gross
Negligent Operation with death resulting, but it did convict him of a lesser
charge of Negligent Operation, a misdemeanor (which appears to have been a
proper and somewhat brave determination by the jury, who, was able to
distinguish between the required criminal mental state and actions, on the one hand
and the tragic result, on the other. Hey, maybe one of them took my class).
Defendant
also had a prior motor vehicle record including “three
times [being] convicted of a dangerous activity with respect to a motor vehicle
on the highway.” As a result, upon
conviction, the court sentenced Defendant to the “maximum [it] could give
[defendant],” which was 11–12 months.
Having ducked a BIG bullet with his acquittal on GNO-Death (which
calls for a minimum of one year, and a maximum of 15 in prison), Defendant—who
is clearly something of a gambler—moved to stay imposition of his sentence
pending appeal, and the court agreed. (To
use poker lingo, he drew to an inside straight.)
This meant that he didn’t go to jail and didn’t start serving his
sentence while his case made its way through the court system. Defendant was convicted in February 2010, and
sentenced in March 2010. The accident
occurred in September, 2008. Between
September 2008 and March 2010, Defendant was subject to what are called
“conditions of release,” which are legally enforceable requirements imposed by
the court in lieu of “bail” or incarceration while awaiting trial. In March, 2012, Defendant had still not seen
the inside of a prison cell, the SCOV had granted him partial relief on his
appeal, and he was able, by playing the rules of criminal and appellate
procedure VERY well, file a motion for reconsideration of his original sentence—in
hopes of having it reduced.
And low and behold, Defendant draws yet another winning hand. This
time, the trial court hearing his motion for reconsideration of sentence finds
that the sentencing court was overly harsh, which the trial court on
reconsideration found was caused by the impact of the “distressing evidence
presented at trial” on the sentencing judge.
(I would love to be a fly on the wall for the conversation between those
two judges next time they meet at judicial college:
Sentencing judge
Dude, I wasn’t overcome by the evidence in the trial! That guy was death in a truck just waiting to
happen. And it happened!! I gave him that sentence because he was a
reckless, callous a**#@%@, and the case called for that sentence.
Sentence reducing judge:
Hmmm— yeah, “menace to society.”
Yet, this is as serious as you
can get—careless and negligent driving ? I mean, he made a lazy left hand turn- not
exactly Deathproof or Ricky Bobby for that
matter. I mean, even the jury only found
him guilty of the misdemeanor.
(At least, that’s how I like to imagine judicial conversations in
all my trial court fanfic.)
And Defendant draws a straight, 10 high, with the court reducing
his sentence from 11–12 months to 9–12 months. Under sentencing practice in place at that
time, he would have been eligible for release from prison after serving
approximately 90 days.
Not to mix metaphors and analogies, but Defendant decides even
after this win that the game ain’t over till the plus sized female vocalizes a
melody. He steps to the plate of the SCOV
(for the 2nd time mind you) for another swing—appealing the re-sentencing
court’s order on two grounds. First, he
argued that since the jury had not convicted him of grossly negligent
operation, the resentencing court could not, as a matter of law, consider him
to have been “very negligent” in his operation of the car, and therefore, the
sentence was based on an improper factor.
Second, Defendant argued that based on the SCOV’s findings regarding
restitution in his case (in an earlier appeal), the resentencing court could
not, as a matter of law, find he had “caused the death” of the motorcyclist.
Going back to our poker metaphors, this argument was like
discarding three jacks when you are holding the king and ace of a different
suit in hopes of drawing the 10, jack, and queen of the same suit for a
straight flush. In other words, it’s a
hell of a long shot. And the SCOV does not waste much paper making that very
clear.
But our intrepid appellant isn’t done yet, dear friends. Oh, no he isn’t. His last claim is that he should have been
given “credit” toward his sentence for time he was on what we in the crim–biz
call “conditions of release.”
In Vermont, people convicted of crimes are entitled by law to
receive “credit” for time spent “in custody” prior to the sentence. For example, if the court imposes a
requirement that in order for you to remain “at liberty” while awaiting trial
someone must post a bail (cash or surety of a certain amount) and no one “posts
bail” you will remain in jail until the outcome of your case.
Pretty simple, right?
But what if you are not in “jail” but the court imposes a bunch of
restrictions on you that are tantamount to a home incarceration (commonly
referred to as “custody?” what then?
“The court shall give the person [convicted of an
offense] credit toward service of his or her sentence for any days spent in
custody in connection with the offense for which [the] sentence was imposed.” 13 V.S.A. § 7031(b).
The statute “call[s] for a case-by-case factual
determination” as to whether a defendant’s conditions of release amount to
custody under § 7031(b). When the sentencing court is presented with a
request for credit for time spent in custody under § 7031, the calculation
involves a legal question, known as the Platt/McPhee
analysis. The Court reviews questions of
law de novo.
On a certain level, Defendant may have wished that his lawyer
wasn’t so good at his job, because if lawyer had been a bit less effective, it
seems possible that the original judge would have kept him on such strict
conditions of release that the Supremes might have felt compelled to equate it
to “custody” as defined above.
Instead, while Defendant was clearly
restricted in his liberty, he was not so restricted as to reasonably be found
to be “in custody,” which the SCOV equates with factors such as:
·
Being required to live in a
specific residence
·
Being released into the
“custody” of an adult who has appeared before the court and agreed to report if
Defendant violates court conditions
·
Being restricted from any
type of travel from the home
·
Being restricted from-
walking your dog for less than an hour at a time
·
Active monitoring
·
Other forms of similar
restraint
In other words, the SCOV finds that, since conditions of release
are an option available to the court prior to trial to ensure a defendant’s
future appearance AND to protect the community from defendant’s actions, and as
conditions of release in this case were imposed in lieu of bail, it was OK that
they were pretty darned restrictive—but the restrictions were not so draconian
as to equate to institutional custody. And
while I am loathe to concede any further erosion of liberty interests for
anyone, and particularly for those not yet convicted of any crime, my two cents
is that this is a proper analysis of pre-conviction restrictions vis-à-vis
credit toward a later sentence.
So, no credit, and Defendant must prepare to don the orange and
serve his 9–12 months in prison 5 years after he accidently killed a guy on a
motorcycle while making a lazy left turn.
But wait!
Our intrepid appellant isn’t quite done yet. In fact, the SCOV
finds that, for 12 days in March, 2010, Defendant was in fact in “custody”
pursuant to the Platt/McPhee analysis
and orders that he receive credit for those 12 days when he finally (one
assumes) surrenders to serve his sentence. Under my best understanding of current DOC
policy and Vermont statute, this means that he will have 10 months, 18 days to
serve on the “max” part of his sentence. This is akin to standing on a pair as your
bank has been whittled away and going “all in” to create a small blind—and
having that pair win the hand. In other
words, it ain’t nothin,’ but it ain’t exactly what Defendant was hoping for—because
when you do the math, if Defendant had gotten the credit for pre-trial
detention that he was seeking, then the State would actually have owed him some
days since he had more than a year of credit that he was seeking.
And that, my friends, is some kind of poker face.
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