Thursday, July 24, 2014


In re Allen, 2014 VT 53

By Jeffrey Messina

WARNING: This SCOV Law summary contains graphic material that may not be suitable for all audiences. Parental guidance is suggested . . . .

This case involves allegations of a pretty horrible act on a child, and how much discretion a trial court has to consider facts not in evidence when determine sentencing.

Petitioner appeals a summary judgment ruling in his quest for post-conviction relief (“PCR”) on the basis that the court applied improper legal standards in reaching its decision on his claim of ineffective assistance of counsel.

Petitioner entered a plea agreement in which he pled guilty to lewd and lascivious conduct with a child in lieu of aggravated sexual assault. The charged allegations stemmed from him "penetrating his eight year old granddaughter with his finger.”

The presentence investigation report ("PSI") referred to the digital penetration of the victim, and the probation officer recommended eight-to-fifteen years, all suspended except eight years to serve. In support, the PO cited petitioner's "minimization of harm caused to the victim and her family and his lack of empathy." Petitioner focused his response on refuting the contention he minimized his conduct and its impact, and specified mitigating factors like his age, health and remorse. He did not, however, object to the mention of penetration in the PSI.

At sentencing, the State argued for ten-to-fifteen years to serve, centered on the nature of the crime, petitioner's failure to take responsibility or acknowledge the actions harmed the victim. Defense counsel argued for one-to-five, all suspended but one year, and again did not address the PSI penetration issue. Ultimately, petitioner was sentenced to eight-to-fifteen years to serve. The court found the victim’s description of the offense reliable - including the penetrationand in its soliloquy, stated the "petitioner is immediately in custody." Of note, the judge was apparently so incensed by the nature of the crime, that he was “beet red” and . . . ummm . . . drooling. According to the defense attorney, the judge “was hunched over and leaned forward when he spoke and saliva was literally coming out of his mouth as he spoke.”

After sentencing, defense counsel objected, essentially saying the court's conclusions were outside the scope of the offending conduct "relative to [the] alleged penetration." Counsel further asserted the allegations of penetration "were never attested and were never probed." [Yes, he said probed.]

In the direct appeal, petitioner argued the court erred as a matter of law by sentencing him based on digital penetration as it was a disputed issue. According to defendant, no evidence had been presented regarding penetration at sentencing, and the State conceded it could not prove the fact. For the initial appeal, SCOV decided a sentencing court has discretion "to consider a broad range of relevant information including the particular facts of the offense, even if such facts are not explicitly an element of the charge," and continued that "under Vermont Rule of Criminal Procedure 32, the sentencing court may consider information from a variety of sources including the PSI." The High Court stressed the rules set forth a detailed process for objecting to facts in a PSI.

The petitioner put forth, and SCOV rejected, the assertion that he was not required to object to the mention of penetration in the PSI because the State admitted it could not prove the fact. The SCOV found no such admission by the State and also concluded that because petitioner did not challenge the penetration evidence before being sentenced, he waived any objection to the lower court’s use of it on appeal. Petitioner then filed a PCR.

The PCR claimed trial counsel was ineffective since he failed to object to the allegation of penetration in the PSI and, but for the error, there was a reasonable probability that he would have received a lesser sentence. The State moved for SJ (summary judgment), arguing whether or not petitioner could establish a poor performance by counsel was irrelevant: he could not prove the sentencing court actually relied on penetration to reach the sentencing decision. Therefore, he could not show prejudice. Petitioner opposed the motion and cross-filed for SJ. The State gets the “W” for SJ.

The PCR court explained that petitioner needed to showby a preponderance of the evidencethat his counsel's performance "fell below an objective standard of reasonableness informed by prevailing professional norms," and, if he could meet that burden, needed to also show "counsel's performance prejudiced the defense by demonstrating ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’" To petitioner’s credit, the PCR court indeed found a prima facie case against counsel's performance, but the trial court also concluded petitioner could not show a reasonable probability he would've received a lesser sentence.

The PCR court explained that the majority of the parties’ arguments, as well as the court's explanation of the basis of its sentence, did not mention penetration. Instead, the lower court’s stated reason for the sentence was the betrayal of an innocent child. Additionally, the lower court focused on petitioner's failure to acknowledge the harm to the victim and the purposeful act. (The man had laid out a towel and had oil at the ready.) Accordingly, the PCR court determined the lower court’s reasons for the sentence had nothing to do with penetration. It also pointed out the sentence was less than the 10 to 15 years the State sought.

In short, the PCR court concluded petitioner could not show by "preponderance of the evidence" that the court would have imposed a lesser sentence and added the court had the discretion to impose the sentence it did. Its reasoning supported the sentence even without considering statements made in the PSI.

The PCR court also rejected petitioner’s claim the sentencing court's statement "[petitioner] is immediately in custody" proved the court was prejudiced by the penetration issue. The sentencing court made the statement at the conclusion of its remarks, following the actual imposition of the 8-to-15-years-to-serve sentence. Even if petitioner was being removed from the courtroom before defense counsel objected, the PCR court found no indication in the record, or in defense counsel’s affidavit, that the sentencing judge had ordered that action. The PCR court points out that the defense attorney’s request that the court allow petitioner 30 days to put his affairs in order before reporting was denied. Additionally, the lower court stated counsel should communicate with DOC about petitioner's medical needs, and the court further offered its assistance in getting petitioner medication. Those facts combined, the PCR court found no prejudice.

The PCR court also rejected petitioner’s assertion that the judge's “beet red” and drooling appearance meant the sentence was harsh because of the issue of penetration. The judge’s complexion and anger could not be traced to a single aspect of the crime. Accordingly, because petitioner could not meet the second element of his claim, the court granted summary judgment to the state. This appeal followed.

SCOV reviews summary judgment decisions de novo.

Petitioner's first argument is that the court applied the wrong legal standard to evaluate his ineffective assistance of counsel claim because there was a discrepancy in the language of the decision. SCOV treats it as a mere misstatement, and harmless error, because the court cited the correct standard numerous times in the decision. SCOV then turns to petitioner's second argument: that the court failed to give him "the benefit of all reasonable doubts and inferences" in reaching its decision, which means he is entitled to an evidentiary hearing to determine if he suffered prejudice from the alleged unprofessional errors.

SCOV rejects all of petitioner's assertions and concludes as a matter of law that there is no reasonable probability that, but for counsel's alleged unprofessional errors, the sentencing result would have been different. The court explains a "reasonable probability is a probability sufficient to undermine confidence in the outcome," which requires a reasonable probability that petitioner would have received different sentence. Prejudice for purposes of an ineffective assistance of counsel claim rely on "[t]he likelihood of a different result must be substantial, not just conceivable."

SCOV finds the issue of penetration did not form the basis of the sentencing. Instead, SCOV cites petitioner's minimization of the damaging affect his actions were likely to have on the victim, and the deliberate nature of his actions. SCOV also notes the sentence was for less time than the State sought, and less than what was allowed under the plea agreement.

SCOV finds similar results across the board with all of petitioner's argument. SCOV states no inference can be drawn from the record that the court was so angry based solely on the fact of digital penetration that it ordered petitioner into custody before the end of the hearing. Instead, the sentencing court merely ordered the sentence to begin immediately, which SCOV states is supported by defense counsel's request to allow 30 days before commencing sentence.

Finally, SCOV opines the fact that the judge was distressed while pronouncing the sentence means nothing. It does not prove the judge was upset due solely and specifically to the penetration, nor does it prove he imposed a harsher sentence because of it.

Because petitioner failed to show a reasonable probability he would have received a lesser sentence “but for counsel's unprofessional errors,” summary judgment was appropriately granted to the State.


  1. I've become increasingly irritated with the tone of this blog criminal case summaries. While it may be a "horrible crime" in your book (who would argue with you?), it is undisputed that the defendant received an extreme sentence for the charge particularly given his lack of criminal record and the circumstances of the crime. Check the sentencing stats.

  2. Kelly, let me be the first to apologize if the tone came across badly. We try to be impartial here. Most of us are defense attorneys, as you know. I believe Jeff's exact wording was "allegations of a pretty horrible act," not that it was a "horrible crime."

    In my personal opinion (which I try to keep out of my summaries as much as I can), this is a bad decision by the majority. It's an example of the "special" summary-judgment standard that gets applied to PCRs. The language is the same as other cases, but the application is markedly different. As Justice Dooley pointed out in his dissent (which should have been covered in this summary), "In particular, in deciding the prejudice question as a matter of law, the court ignored perhaps the most fundamental principle of the summary judgment standard: that the trial court must view the facts most favorably to the nonmoving party and afford that party—in this case petitioner—the benefit of all reasonable doubts and inferences."

    I further agree with you that—and feel free to correct me if I've misread your comment—petitioner was by all appearances sentenced for an aggravated sexual assault and not an L&L.