Tuesday, July 1, 2014

The Court's Calculator

State v. LeClair, 2013 VT 114

By Ember S. Tilton

In this unanimous decision, the SCOV agrees with Prisoner's Rights. I'll spare you the math for the most part and get down to the nuts and bolts of the legal controversy. Mr. LeClair had been bad. Actually, he was bad over and over again. Finally, in an effort to deal with his multiple cases and settle the whole business of his numerous criminal charges, the State made a global offer involving some amount of jail (again, I will spare you the numbers).

The issue arose out of one of his cases that had been in drug court. Drug court is a program similar to probation where a defendant receives a sentence but does not serve the sentence so long as that defendant complies with the drug court's instructions. Drug court instructions might include things like looking for a job, going to meetings, getting clean, or finding a new apartment. Like probation, there are conditions and when those conditions are violated a defendant may lose their drug-court eligibility and be made to serve the entire underlying sentence or part of that sentence. One major difference between drug court and probation is that a judge acts like a probation officer and the defendant must discuss their life, progress, or failures in front of a group in a fairly court setting. The program achieves a great deal of success with some defendants but Mr. LeClair was arguably not one of them.

During his time with the drug court Mr. LeClair was charged with a few new crimes (by "a few" I mean a bunch of fairly serious crimes). For these new crimes, the court imposed bail of $50,000. Mr. LeClair didn't have $50,000 so he remained in detention. In addition, the drug court kicked him out of the program and imposed the underlying sentence.

Despite Mr. LeClair's poor behavior, he was a somewhat agreeable person and pled guilty to his new charges. The court imposed a sentence pursuant to a plea agreement and Mr. LeClair began serving his time. The court gave him credit for time served from his original charge for the time he was held for lack of bail. The court also gave him credit for time served for the time spent in prison after he was arrested the second time and held for want of bail. However, the court did not give him credit for a period he spent in jail for the second arrest towards his first sentence which had been suspended pending completion of drug court. When Mr. LeClair realized this, he felt tricked and betrayed (artistic license here I have no idea how he actually felt, but he most likely was displeased). So, he then filed a motion to correct or modify his sentence. The trial court denied the motions stating, "defendant was not held [the second time] for lack of bail on [the first offense] and therefore is not entitled to credit on that docket."

Ok, so let me re-summarize just to be clear. He received credit for time held on bail for the first sentence towards the first sentence only and time held on bail for the second sentence was credited towards the second sentence only. Seems fair right? Well, here's the spin. The second sentence was imposed to be served concurrently to all other sentences. Therefore, the question before the court was this: When two sentences are to be served concurrently and there was time served on each, does the time served get added together or does the time served also run concurrently?

SCOV rules that the credit for time served must be added together because it was served on the second charges while pending trial, and should also be credited against the first sentence. The reason for this is that neither the defendant nor the court has any control over when that first sentence might begin to run again. In a probation situation, it would not begin to run until the State brought a violation of probation, which could technically be brought on the first day of the detention due to lack of bail for the new charges. Any delay in filing the violation of probation would be purely attributable to the State. 
My apologies to the good people at Prisoner's Rights if I totally messed this up. Feel free to write me scathing emails and chastise me for my errors. But, just to be fair, here's the math for all of you very particular readers who want to know exactly how this works:

Sc = the length of the controlling sentence

S1 , S2 , S3 , … = the length of each of the other sentences to be served concurrently with Sc.

tc, t1, t2, … = the time served credited to each of Sc, S1 , S2 , respectively.

T = total time served.


T = Sc – (tc + t1 + t2 + … )

On the other hand, if the sentences are to be served consecutively then the final time to be served is given by:

T = (Sc - tc) + (S1 - t1) + (S2 – t2) + (S3 – t3) …

Equation curiosity of John Guenther


  1. 13 VSA 7031-32, have been amended by the legislature to reflect the holding in this decision. (eff. April 3, 2013.)


  2. I filed the appeal, I drafted the brief BY MY SELF. The only thing Seth did for me was deliver the oral argument... Who needs law school :)

  3. Excuse me for my last comment. I meant I filed Pro-Se. I was unsatisfied with the fact that I would have had to serve 3 years with only 170 days of pre-trial-detention credit for my 2012 charges. In essence, I was still serving 3 years toward my minimum term of incarceration without the benefit of the 279 days I spent incarcerated in 2010.

    I was not eligible, according to the DOC Sentence Comp, for release until March of 15'. This is because of a disparagement of 1 year between the minimum terms of concurrent incarceration on my 2010 docket (I received a sentence of 3 years) and my 2012 dockets (I received just 2 years). The 2012 dockets required me to atone for my sins for less time than the 2010 docket.

    Because the bail wasn't issued for the 2010 charge at the same time I arraigned for my 2012 charges I was paying penance for 279 days twice.

    I should have been seeing the parole board in May of 2014 and been eligible for release on furlough simultaneously. I should not have been scheduled to see the board in March of 15' (3 years from the day of my 2012 fiasco) by virtue of having received a completely concurrent sentence straight across the board by the sentencing judge. (I rejected the State's plea agreement and plea bargained with the sentencing judge instead)

    I decided to see if the trial court was reasonable enough to see that I should have only done just over 2 years. I drafted a Rule 35... Nope. The kick in the gonads for me was that the judge who rejected my sentence modification motion wasn't even the judge who sentenced me.

    I took the hint and decided to file a brief with the Supremes. Using the 5 and 14 Amendments' Substantive and Procedural Due Process Clauses, I reasoned that Parole and Probation were sufficiently similar to Drug Court in as much as their terms, agreements, rules and conditions. I was certain that the Justices would agree with me once they saw my exhibits.

    Differentiating the supreme's holding in Conway v. Cumming (furlough is not suffienctly simialr to parole) and the Supremes holding in State v. Blondin (revocation of parole or probation equals concurrent credit for the parole AND the new charge when the sentence is imposed concurrently). THE DOC NEVER, EVER AWARDED CONCURRENT CREDIT FOR AN INMATE ALREADY ON FURLOUGH WHEN PREPARING A SENTENCE COMP BEFORE APRIL OF 2013... UNLESS THEY HAD BEEN ON PROBATION OR PAROLE BEFORE ACCRUING NEW CHARGES. In 2012 (the year I was sentenced) this simultaneous credit was inapplicable in any instance where a consecutive sentence had been imposed regardless of whether or not the person was probation, parole or furlough.

    As of this writing the credit is now applicable toward the minimum term of incarceration.

    In order to win I needed to have the justices decide exactly what Drug Court legally in order to force DOC to award me an additional 279 days toward my 3 year minimum using the rational from Blondin.

  4. Wow, that is an incredible story. Thank you for sharing it. I hope my article did justice to the legal analysis and the issues raised.