2014 VT 64


Vermont v. Fontaine (2014-096)
 
2014 VT 64
 
[Filed 20-Jun-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.  Readers
are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2014 VT 64

 

No. 2014-096

 

State of Vermont


Original Jurisdiction


 


 


     v.


Superior Court, Orleans Unit,
Criminal Division


 


 


Joshua Fontaine


May Term, 2014


 


 


 


 


Howard
  E. Van Benthuysen, J.


 

James Lillicrap, Orleans County
Deputy State’s Attorney, Newport, for Petitioner-Appellant.
 
David C. Sleigh and Kyle L. Hatt of Sleigh Law, PC, St. Johnsbury,
for Respondent-Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.            
CRAWFORD, J.   The State’s petition for extraordinary
relief raises two issues concerning defendant’s sentencing: an objection to a
private meeting in chambers between the judge and the minor victim of the offenses
and the court’s decision to impose a “split” probationary sentence on the
charge of lewd and lascivious conduct with a child, first offense.* 
¶ 2.            
On September 12, 2013, defendant pled guilty to a felony charge of lewd
and lascivious conduct with a child as well as four counts of prohibited
acts.  The court ordered a pre-sentence investigation (PSI) and a
psychosexual evaluation.  Sentencing occurred on March 19, 2014 after
submission of the PSI report and the evaluation.  
¶ 3.            
In the course of the sentencing hearing, the defense sought testimony
from the victim, who was thirteen years old at the time the offense conduct
began and sixteen at the time of sentencing.  The victim is defendant’s younger
sister.  The defense requested that the judge speak privately with the
victim.  The State objected although it agreed “to allow the victim to
express her preference to the Court outside the presence of counsel.” 
Specifically, the record reflects that when the judge inquired if anyone “would
object to my meeting briefly with [the victim] to find out exactly what her
comfort level is,” the State responded that it had no objection.  
¶ 4.            
The judge met with the child in chambers.  A record was kept of
their conversation.  Reading from a prepared statement, the victim told
the judge that she did not want her brother to go to jail.  She indicated
that she knew what her brother had done to her was wrong, but she preferred
that he receive long-term treatment and counseling.  During the
conversation, the judge discussed general sentencing principles with the
victim.  The parties also discussed whether defendant had an anger
management problem and whether he was developmentally delayed.  The victim
noted that her brother had a history of seizures.  The trial judge offered
the victim a mixture of advice and sympathy and discussed ways to overcome
traumatic experiences in life.  At the close of the conversation, the
victim stated that she did not want to provide any additional testimony in open
court.
¶ 5.            
The court sentenced defendant to two-to-eight years, all suspended
except ninety days on the lewd-and-lascivious conduct charge.  In
describing the basis for the sentence, the court recognized the concern and
support that the victim had expressed for her brother.
¶ 6.            
We will consider the two claims made by the State in order, beginning
with its assertion that the court erred in meeting with the victim in
chambers.  The State has no right to a direct appeal on this issue, see 13
V.S.A. § 7403 (detailing circumstances under which State may appeal in
misdemeanor and felony cases), and it is not an appropriate subject for
extraordinary relief.  Extraordinary relief is a limited remedy.  One
must show more than a “mere inability to secure ordinary review of a particular
ruling,” and more than an abuse of discretion.  State
v. Forte, 154 Vt. 46, 48, 572 A.2d 941, 942 (1990).  We require
proof that the trial court’s actions amounted to a “usurpation of judicial
power or a clear abuse of discretion, or an arbitrary abuse of
power.”  Id.  (citations and
quotations omitted).  
¶ 7.            
The standard required for extraordinary relief is not satisfied
here.  The State complains that although it agreed to a limited private
conversation between the judge and the victim, the discussion in chambers was
broader in scope than agreed.  At most, this is a claim that the trial
judge exceeded the terms of the parties’ agreement in conducting the discussion
with the young victim.  We view the discussion as it appears in the
transcript in a more generous light.  The judge exercised his judgment in
directing and leading the discussion with a vulnerable young person.  The
exercise of judicial discretion is not an appropriate subject for extraordinary
relief unless the violation is clear and amounts to an abuse of
authority.  Nothing of the kind happened in this case.  As in Forte,
the record “is conspicuously unsupportive of an extraordinary remedy.”  Id. 

¶ 8.            
We turn to the State’s assertion that the court imposed an illegal
sentence by declining to impose a minimum incarcerative
sentence of two years.  The prosecution may seek review of a sentence on
grounds that it is illegal through a petition for extraordinary relief.  State v. Saari, 152 Vt. 510, 513,
568 A.2d 344, 347 (1989).  The sentence allowed by statute for
first offense lewd and lascivious conduct with a child appears at 13 V.S.A.
§ 2602(b)(1), which states:
A person who violates
[13 V.S.A. § 2602(a)] shall be:
 
(1) For a first
offense, imprisoned not less than two years and not more than 15 years, and, in
addition, may be fined not more than $5,000.00, or both. 
 
¶ 9.            
This mandatory-minimum provision does not exclude or forbid the
suspension of all or part of the sentence.  Trial courts may suspend
sentences in all cases in which incarceration is not specifically required by
the Legislature.  28 V.S.A. § 205.  There is
no specific requirement of an incarcerative sentence
in § 2602(b)(1).  
¶ 10.         In
contrast, 13 V.S.A. § 2602(c)(1) prohibits probated
sentences for second and third offenses and specifically requires
incarceration.  Under familiar principles of statutory construction, the
inclusion of such a term with respect to two provisions of the statute and the
exclusion of it in another demonstrates legislative intent to exclude mandatory
incarceration from the first-offense penalty.  See, e.g., Grenafege v. Dep’t of Emp’t
Sec., 134 Vt. 288, 290, 357 A.2d 118, 120 (1976) (recognizing “the
time-honored precept of ‘expressio unius est exclusio
alterius,’ ” that is, the expression of one thing is
the exclusion of another); see also Hopkinton Scout Leaders Ass’n v. Town of Guilford, 2004 VT 2, ¶ 8, 176 Vt. 577,
844 A.2d 753 (mem.) (“Where the Legislature includes
particular language in one section of a statute but omits it in another section
of the same act, it is generally presumed that the Legislature did so
advisedly.”).
¶ 11.         The
legislative decision to allow the trial judge discretion to suspend part or all of the mandatory minimum is consistent with common
sense.  Lewd and lascivious conduct with a child includes a broad range of
offense conduct.  Some conduct may require that the full period of the
sentence be served in prison.  For other conduct a split sentence,
including elements of incarceration and supervision on probation, may be
appropriate.  The mandatory-minimum provision ensures that in the event of
a violation the defendant may receive up to two years in prison.  This
incentive to comply with conditions of probation would be reduced if the
underlying minimum sentence were less than two years.  
¶ 12.         We
find no violation of the sentencing provisions applicable to this
offense.  Accordingly, we deny the State’s petition for extraordinary
relief.   
The State’s petition for
extraordinary relief is denied.
 
 

 


 


FOR THE COURT:


 
 


 


 


 


 


 


 


 


Associate
  Justice

 







* 
A “split sentence” is one in which a portion of the minimum sentence is served
in jail and the balance is suspended with conditions of probation.



