2015 VT 76
By Elizabeth Kruska
Mr. Delisle and his associate, Mr. Lacross, burgled a house in Enosburg, where they assaulted someone and stole some prescription drugs. Mr. Delisle pled guilty to the charge and wanted to have a sentencing hearing. Before the hearing, a pre-sentencing investigation was done and filed with the court. The hearing was held, evidence was presented, and the court imposed a sentence of 10-20 years to serve.
Here’s the problem. During the hearing, the trial judge mentioned that he also heard the co-defendant’s case, and was pretty familiar with the facts. The trial judge disagreed with evidence presented in Mr. Delisle’s hearing because he thought it didn’t exactly coincide with his view of the evidence as presented in Mr. Lacross’s hearing. Mr. Delisle presented a psychologist who said he was a follower, not a leader. The judge said he didn’t think that was the case due to things he learned in Mr. Lacross’s hearing.
Nobody knew the judge was going to do that. Mr. Delisle didn’t have notice that the judge was going to use information he used from the Lacross hearing, and he certainly didn’t have time to prepare a response. So, Mr. Delisle appealed.
SCOV reverses, and remands for resentencing in front of a different judge.
Trial courts have a lot of latitude at the time of sentencing. Sentences will be upheld, generally, so long as they are based on appropriate and accurate information that was properly before the court. The rule is that evidence to be presented has to be able to be examined ahead of time so that the defendant can appropriately rebut any information. For example, when a PSI report is done and filed, a defendant has the right to file objections to any inaccuracies.
Nothing in the record here suggests that anybody knew the judge was going to mention Mr. Lacross’s case. Nevertheless, the State argued on appeal that it was okay for the judge to use this information, because Lacross had been convicted of the charges, and that since they were co-defendants, Mr. Delisle and his team should have known this could come up.
SCOV is not convinced by that. The question isn’t whether or not the co-defendant was convicted of the same charges, the question is that there wasn’t any notice that this would end up getting used. SCOV cites a federal case where something similar happened, and that got reversed. To allow this would be to put the responsibility totally on the defendant to try to figure out what the State might argue for at sentencing. That’s not allowed.
The State also argued that the Rules of Criminal Procedure only specify that notice is required for information submitted to the court. Since the State didn’t submit the information about the co-defendant that the judge knew, there didn’t need to be notice from the state. SCOV is unconvinced by this, too, because the rule allows for notice of anything submitted, and also any factual information otherwise taken into account by the court for sentencing. The Court is allowed to consider a whole range of information, including information not necessarily supplied by the Department of Corrections. Fairness requires that a defendant be given notice of all the information, not just what is in the PSI. This is supported by some federal cases, as well.
SCOV finds that this was clearly prejudicial to Mr. Delisle, and so kicks it back to a different judge for resentencing.