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State v. Rondeau
By Eric Fanning
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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