Wednesday, January 13, 2016


State v. Goewey, 2015 VT 142

By Elizabeth Kruska

Turns out, if you don’t know a number, you can’t figure out a percentage of that number. That’s a fairly important thing SCOV points out with this case. Other things also happened in this case, but this is one that I want to start with because it answers a question I’ve had since the legislature made the so-called 70% rule.

In Vermont, criminal defendants, if sentenced to a period of incarceration, are required by law to receive a sentence with a minimum and a maximum. You’ll never see a Vermont sentence of just, say, six months in jail. If that’s the goal, the sentence has to be something like 179-180 days in jail. Some other jurisdictions can make six-month sentences like that; Vermont just isn’t one of them.

A few years ago, the legislature overhauled lots of statutes involving sexual offenses. One such statute that was amended involved the release of high-risk sex offenders. It says, in summary, that a sex offender who is designated as high-risk, can’t be released until he or she has served at least 70% of the maximum sentence. For the sake of easy numbers, let’s say a defendant has a sentence on a sex crime of 10-20 years to serve. If, after being assessed by the Department of Corrections, the person is determined to be “high risk” that person can’t be released until he or she has served 70% of 20 years. Under other circumstances, that person might be able to get out at 10 years, but instead must serve at least 14. The balance of the sentence is served on some sort of community supervision.

But. There are some offenses, like the one with which Mr. Goewey was charged and convicted, that have a requirement that they receive indeterminate life sentences. That means there has to be a minimum and that the maximum must be life. As you can imagine, the crimes that generate a life sentence are bad; nobody’s getting life for doing a Jean Valjean and stealing some bread. Someone might get life for repeatedly sexually assaulting a child.

Somebody being sentenced for that offense, and getting a maximum sentence of life, might very well be determined to be “high risk.” Under the 70% rule, now the Department of Corrections has to figure out what 70% of life is. SCOV says that rule does not apply to life sentences. Know why? Nobody’s birth certificate has an expiration date. “Life” is not a number that can be determined at the time of sentencing; you can’t figure out 70% of that.

Lest anybody think that DOC is going to be willy-nilly letting out high risk sex offenders, that’s not the case. Someone sentenced to 20-life is eligible for release after 20 years; the Department of Corrections doesn’t have to let that person out after 20 years. Chances are DOC wasn’t going to release the high-risk offenders at their minimums anyway, regardless of whether there was a statute. DOC also, though, doesn’t get to put on a Carnac the Magnificent hat and prognosticate how much longer the person is going to live and keep them there 70% of that time.

The argument that gets made here is that it’s a separation of powers problem. The court is in charge of making a sentence, so the Department of Corrections should not be allowed to step in and make someone’s jail time longer than the court envisioned by holding the person past his or her minimum. If the judge wanted a longer minimum, the judge would have imposed a longer minimum.

SCOV addresses this and says that it really isn’t a problem. When someone is in commission of a sentence with a minimum and maximum, the person is in the custody of Corrections for the maximum amount of time. DOC can have someone in its custody either in jail or out of jail. Whether DOC lets the person out at their minimum is up to DOC; their job is to enforce the sentence, which means enforcing the whole of the sentence. The minimum means the person isn’t getting out of jail before that time (for the most part but there are exceptions that don’t apply here).

I see where there might be a correlation between the really serious crimes with mandatory life sentences and offenders ultimately designated as high risk. I also envision that this particular population was exactly the one the legislature had hoped to incarcerate longer by enacting the 70% rule. Looks like that’s not going to work.

So, on to Mr. Goewey, who was sentenced to 20 years to life for aggravated sexual assault on a child. He was 61 at the time he was sentenced. Putting on my Carnac hat, I’m prognosticating that his minimum is probably effectively a life sentence; indeed, there was testimony and argument about his poor health. At his minimum he would be 81. I think we can agree 81 is pretty old.

The defense argued for a shorter sentence; the prosecution argued for a longer sentence. The judge effectively split the difference and imposed 20 to life. The defense argued a lot about the 70% rule, which the judge did not consider. The judge might not have been able to consider that fully anyway, because the risk assessment is done post-sentencing. SCOV says it is fine that this was not considered.

On appeal, both parties agree that the sentence imposed was legal. The defense argues that the way the judge got there was not appropriate. SCOV disagrees, although ultimately it makes a ruling about the 70% rule, which I’ve already talked about.

The judge apparently repeatedly used the word “sodomy” or “sodomized” to describe the actions by Mr. Goewey. As I understand the facts, Mr. Goewey performed oral sex on a young man. Mr. Goewey argues on appeal that the judge’s choice of language was inappropriate. SCOV declines to overturn based on this for a couple reasons. First of all, it wasn’t objected to at the time of the hearing, so the issue wasn’t preserved. Second, even though the word carries different connotations, there was no indication that the judge had a personal animus toward Mr. Goewey, or tried to impose some sort of personal beliefs onto him.

The judge also mentioned another case where she considered the defendant’s medical conditions at sentencing, and that the person had pretty shortly thereafter violated her probation. Mr. Goewey argued it wasn’t appropriate for the judge to consider circumstances of someone else’s case in his case. SCOV sees it differently, and took the position that the judge was making an observation about considering medical factors as mitigating evidence in general. SCOV says this was okay here.

So, the sentence is affirmed.

Justice Robinson concurs, and Justice Skoglund joins. She writes separately because she really was bothered by the trial judge’s use of the word sodomy. This is a really nice piece of persuasive writing, and I don’t want to do it a disservice by trying to summarize it. Read it. I think it’s a great example of the evolution of language. Although a word might technically mean something, it may also carry with it different meanings and different connotations than what the speaker meant to convey. The meanings of words change over time, and it’s important to know what you’re really trying to say while finding the right words to use.

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