Thursday, May 11, 2017

Damned If You Do, Damned If You Did

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State v. Rondeau

This case feels like a long and winding road (sorry, Beatles), so stay with me.

Defendant Michael Rondeau was convicted of two counts of aggravated sexual assault following a jury trial.  The victim in this case is his daughter.  Count One of the State’s information (an information contains the charges which the prosecutor submits to the court – this gets the prosecutorial ball rolling) alleged that he committed aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8) at some time between October 1989 and October 11, 1997, when the complainant was under thirteen years old and defendant was at least eighteen years old.  This charge carries a potential sentence of ten years to life.  Count Two alleged that he committed aggravated sexual assault of a child as part of a common scheme in violation of 13 V.S.A. §3253a(a)(8), during the period between October 12, 1997 and October 11, 2000, when complainant was under sixteen and defendant was at least eighteen.  This charge carried a harsher sentence: twenty-five to life.  Needless to say, Rondeau was facing some hard time.

At sentencing, the Criminal Division raised significant issues about the charges that were included in the State’s information, specifically, that they listed the versions of the statutes in existence at the time of the trial, but not when the alleged crimes occurred.  This means that Rondeau was convicted of violating laws that were not in effect when the crimes were allegedly committed.  This didn’t sit well with the judge, and additional briefing was requested.

What happened next is nothing short of extraordinary.  After briefing and a few procedural niceties, the Criminal Division vacated Rondeau’s convictions and proceeded to consider whether or not he could be found guilty of violating statutes in effect at the time.  The court decides ‘yes,’ and on its own, and in one swift written order, changed the language of both Counts to fit the contemporaneous versions of the statutes, declared Rondeau was guilty of both Counts, and sentenced him.  Ouch.
Rondeau appeals to the SCOV and asks for his convictions to be reversed because (1) “the sentencing court usurped the role of the jury by entering a judgment of guilty on the altered information,” (2) “the court did not have the authority to amend the charges sua sponte (‘on its own’) and post-verdict,” and (3) “the jury’s verdict was not consistent with the newly identified charges and applicable penalties.”

In deciding whether or not to uphold Rondeau’s convictions, SCOV reaches a few constitutional issues: (1) did his convictions violate the Ex Post Facto Clause of the U.S. Constitution, (2) if so, did the Criminal Division have the authority amend the information to cure the ex post facto violation in the way it did, and (3) did the original information provide Rondeau with sufficient notice to sustain his conviction under the statutes in effect when the alleged crimes occurred?

SCOV decides each question with respect to both Counts.  This is a de novo review because we’re talking about questions of applicable law.  First SCOV asks if Rondeau’s conviction under Count One violated the Ex Post Facto Clause of the Constitution.  The Ex Post Facto Clause protects criminal defendants from “laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.” Here’s the gist:  Jim goes out and does X action on Monday.  On Friday, Congress makes X a crime, and Jim is charged with X and found guilty and sentenced.  The Constitution says the government can’t do this, because the Framers thought it would be pretty awful if people were punished for things they did that weren’t crimes at the time.

The seminal case on the Ex Post Facto Clause is Calder v. Bull.  The SCOTUS, in Calder, delineated 4 categories of ex post facto violations: (1) “every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action” (this was the scenario with Jim),  (2) “every law that aggravates a crime, or makes it greater than it was, when committed; (3) “every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed”; and (4) “every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”

SCOV finds an ex post facto violation in Rondeau’s case because he faced greater penalties under the statues listed in the amended information.  How so, you may ask?  Well, in the time between the occurrence of the alleged abuse and Rondeau’s conviction, the Legislature amended the aggravated sexual assault statute twice- once in 1990, and then again in 2006.  The penalty was increased both times.  Prior to the 1990 amendment, the maximum sentence for aggravated sexual assault was twenty-five years in prison.  The 1990 amendment changed the maximum sentence to life in prison.  Then, the 2006 amendment imposed a mandatory minimum of “not less than ten years” and kept the life in prison maximum.

So let’s look at closely at what we’re dealing with here:  Rondeau would face a ten year minimum and a potential life sentence under the amended laws.   Under the pre-1990 law, he’d have a twenty-five year max (though only for the alleged conduct that occurred prior to 1990) with no mandatory minimum. For the alleged conduct that occurred between 1990 and 1997, he’s looking at life in prison without a mandatory minimum.  So basically, by applying the updated law in Count 1, Rondeau’s facing a mandatory minimum and a greater risk of a lifetime sentence. SCOV finds a violation of Calder’s third category, so this cannot support the conviction.  Still with me?  Good.
SCOV next looks to the issue of whether or not the Criminal Division could amend the information sua sponte after Rondeau’s conviction.  This one’s relatively easy, because all SCOV has to do is look to the plain language of Vermont Rule of Criminal Procedure 7(d):  “If no additional or difference offense is charged and if substantial rights of the defendant are not prejudiced, the court may permit an indictment or information to be amended at any time after trial has commenced and before verdict.”  The words “before verdict” make it pretty clear that the intent here was to preclude any-post verdict amendment.  So, no goin’ rogue for the sentencing court on this one.
SCOV also addresses the issue of prejudice in the amended information, but since they already settled the question on the pre or post-verdict issue, I’m not going to spend time on it here.
The crux of the third question for the SCOV is whether or not, on its face, the original information was adequate to give Rondeau notice of the charges that did actually apply to his alleged actions (i.e. the pre-1990 and pre 1997 statutes).  In other words, were all of the necessary elements of the crimes included in the information?  This is an objective question, not a test of what a defendant “actually understood.”  SCOV says no. 

SCOV finds substantial differences between the allegations in the State’s information and the pre-1990 and pre-1997 statutes.  The pre-1990 statute, for example, contained an element that the complainant sustained a “serious bodily injury.”  The prosecution failed to include this element in Count One.  In addition, the statute in effect from 1990 to 2006 required the victim to be under ten years old.  Count One against Rondeau, on the other hand, alleged that the victim was under thirteen.
The State argues that the second defect doesn’t really matter because the State’s affidavit described conduct that occurred when the victim was under ten.  SCOV disagrees, because this is still not sufficient to put Rondeau on notice that Count One was based on that specific conduct.  Speaking more broadly, the State is strictly responsible for defects in its information, and if an essential element of the crime is omitted, then the conviction is no good.

Another part of why SCOV can’t support the conviction is that the jury found beyond a reasonable doubt that the crimes occurred when complainant was under thirteen, not ten.  With a 3 year age gap between the initial charge and the altered charge, the sentencing court essentially presumed that the jury did find that Rondeau’s alleged victim was under ten.  Rondeau says the court usurped the jury’s role in determining this essential fact.  SCOV sees a due process violation here, and Count One is gone.

Now, on to Count 2.  SCOV finds another ex post facto violation here.  This one’s a bit plainer to see because the law specifically prohibiting sexual assault of a child did not exist at all at the time of the alleged acts (remember, for Count 2, we’re talking about 1997-2000).  This law wasn’t enacted until 2009, so we’re talking way beyond the prosecution’s timeframe.
There was an analogous law in existence at the time- aggravated sexual assault as part of a common scheme, however that law imposed a lesser mandatory minimum than the statute Rondeau was convicted of violating.  SCOV finds another Calder violation here, because even if Rondeau could be convicted under the contemporaneous statute, he’s facing a greater penalty than that statute would provide for.

For Count 2, SCOV reiterates their holding that V.R.C.P. 7(d) does not allow the sentencing court to amend the information sua sponte and post-verdict.  No further explanation needed on this one.
Last but not least, SCOV looks to the sufficiency of the information to determine whether Count Two’s original language could support his conviction.  SCOV first notes that Count Two included the defendant and victim’s respective ages, however unlike Count One, age is not an essential element of the aggravated sexual assault statute that was in effect at the time- so it’s merely surplus information and SCOV is fine with that.

Where SCOV finds error is in the use of the incorrect citation in the information.  Failure to use the correct statutory citation doesn’t automatically warrant a dismissal if the facts alleged in the information are clearly charging a violation of the right statute (in this case, the citations are pretty close anyway- 13 V.S.A. § 3253a(a)(8), vs. 13 V.S.A. §3253(a)(9)).  SCOV (or at least the majority), finds prejudice in Rondeau’s inability to know the penalty he faced.  Just going off of the information and affidavit would suggest that Rondeau faced a mandatory minimum of twenty-five years and a life maximum.  Under 3253(a)(9) he would not have that mandatory minimum, but SCOV says that no reasonable defendant would have been able to know this based on the language in the charges brought against him. SCOV says this is prejudicial error because it would have a substantial impact on Rondeau’s decision on whether or not to enter into plea negotiations, and now Count Two is gone too. 

Chief Justice Reiber dissents.  He agrees that Count One was an ex post facto violation and that it had to go, but argues that the majority shouldn’t have vacated Count Two.  The Chief Justice agrees that the statutory citation was incorrect, but disagrees with the majority’s conclusion that the information mislead Rondeau to his prejudice because of the inability to know the penalty he faced.  His dissent says that the impact on plea negotiations isn’t part of the prejudice determination because the prejudice test only goes so far as to determine whether a defendant was able to prepare an intelligent defense- so plea negotiations don’t factor in.

Also, at no point before or during trial did Rondeau allege that he was prejudiced, either in the plea negotiations, or the preparation of his defense.  Since Rondeau was put on notice of the elements of the crime for which he could be convicted, the dissent says the conviction on Count Two should stand.

Thought that was the end of the matter, right?  Wrong.  Following SCOV’s decision, Mr. Rondeau was again charged, but this time the State filed the correct charges.  At arraignment, the Criminal Division granted the State’s request to hold him without bail, and he appeals.  This Entry Order literally was published while I was beginning to work on this post.  Lucky me.

So now we have a nice bail appeal, and Rondeau argues (1) “the court’s finding that the evidence of guilt was great was improper because the court did not find that defendant’s conduct satisfied every element of the statute under which he was charged,” and (2) “the court abused its discretion in holding defendant without bail because it failed to consider the factors regarding conditions of release set forth in 13 V.S.A. § 7554(b).”

The Criminal Division is allowed to deny bail if the defendant is charged with a crime that is punishable by life in prison, and if the evidence of guilt is great. Rondeau says that the trial court abused its discretion because it failed to find that his conduct satisfied every element of the statute.  SCOV disagrees because the trial court clearly assessed all of the elements of the statute in its decision, and it relied on testimony from the first trial and not the convictions themselves, so basically they had enough evidence to go off of, the evidence went to each element.

Next SCOV looks to Rondeau’s contention that the Criminal Division abused its discretion by failing to consider all of the factors regarding conditions of release, set forth in this statute.  Rondeau argues against the presumption in favor of incarceration when the State has shown facts sufficient to sustain a guilty verdict.  In many other cases, Rondeau would have a winning argument, because usually the presumption is in favor of bail (it’s in the Vermont Constitution).  SCOV shoots down Rondeau’s argument, however, because the constitution also includes exceptions to the rule- one of them being, you guessed it- when the defendant is charged by a crime punishable by life in prison (with evidence of guilt).

Rondeau’s next argument is kind of like one you would hear in 4th grade class room:  well, you let me out on bail the first time, so why not this time too?  SCOV says this ignores the broad discretion of the trial court.  As we all know from being devoted readers of this blog, SCOV will not disturb the criminal division’s decision absent clear error or abuse of discretion.  SCOV finds no error here because the trial court did consider the statutory factors: (1) nature and circumstances of the offense charged, (2) defendant’s family ties, employment, financial resources, (3) character and mental condition (there are a few others which aren’t addressed in the Order).  SCOV finds no abuse of discretion because the record shows that (1) the crimes he is charged with are very bad, (2) he has no job lined up and family members willing to take him in, and (3) he’s not honest or trustworthy according to family members, and has made threats against them.

SCOV affirms the bail decision, and Rondeau is held without bail pending his new trial.

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