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| Eventually the coyote sabotages himself. |
By: Elizabeth Kruska
There were four opinions this week, so we here at HQ decided to split them. Delaney did two, I’m doing two, and this all feels very equitable. I’ll keep it short because it’s summer and we all have better things to do than to be inside staring at screens. Like, we should be outside staring at screens.
First up is a case on sentencing. Briefly, the defendant pled guilty to two counts of sexual assault. He and the state negotiated a split sentence – some time in jail and some time on probation (where “some” is the rest of his life). The disagreement was about how much time he’d spend in jail. The parties agreed he could argue for not less than 3 years, and the state agreed it would argue for not more than 7 years. He also spent a bunch of time on a 24-hour curfew while the case was pending, and he wanted to be able to ask for that to count as time toward any jail time.
He pled to the charges, and the court set the case for a sentencing hearing. At the sentencing hearing the victim and her family showed up and made statements about how the crime affected her; a victim has the right to address the court at sentencing. They also made lots of statements about some uncharged allegations against the defendant. There was no notice of the uncharged information, and the court said it wouldn’t consider it. Ultimately, the court sentenced him to the full 7 years to serve on the split portion of the sentence and refused to give him credit for the 24-hour curfew time.
Defendant appealed, and SCOV affirmed. The standard of review for sentencing decisions is the abuse of discretion standard. First, there was some question about whether the court actually accepted the plea agreement, or whether it didn’t and if it didn’t give him the chance to withdraw his plea. SCOV finds this was not an issue. SCOV also found that the court did what it said, and didn’t consider the uncharged conduct, and sentenced him within the agreed-upon cap and floor. The court also wasn’t allowed by law to give credit for the time spent on the 24-hour curfew. Because this is a review of the law, it’s a plain error analysis, and SCOV affirms this, as well. State v. Hirzel, 2026 VT 24.
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My understanding, and I have been wrong before, is that the best way to trap a coyote is to get a roadrunner, let that roadrunner taunt the coyote, and then let the coyote sabotage himself. It turns out I’m wrong about this, and there are not only rules about taking coyotes, but rules about how to take coyotes using dogs.
In 2022 the legislature allowed taking coyotes using dogs. Of course, there need to be rules about how this can actually be done. Enter the Vermont Administrative Procedure Act. The legislature generally says, “we want X.” But the legislature isn’t the governmental body that actually knows how to do the thing, so they leave that up to the various agencies who do know how to do the thing. The agencies make rules. The rules to do the thing have to carry out the legislature’s intent and they can’t be arbitrary.
Here, the Fish and Wildlife Board engaged in rulemaking consistent with the legislature’s intent, and plaintiffs objected. Without getting into all the factual objections (again with the definition of “public trail” – this is becoming a SCOV greatest hits topic in 2025 and 2026), the long and short is that the Board was able to prove the validity of the rules to which the plaintiffs objected. If you are interested in administrative rulemaking, give this opinion a read. Protect Our Wildlife, et al. v. Fish and Wildlife Board, 2026 VT 21.
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