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:
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.
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.