In Re: Kilburn, No. S0241-04 CnC (Katz, J., Aug. 10, 2004)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT
Chittenden County, ss.:




IN RE KILBURN




                                   ENTRY

      Petitioner seeks to vacate his sentence on the grounds that he was
denied his right to allocution prior to sentencing. The state opposes by
arguing that allocution is not a fundamental right and that petitioner has not
proven that he was harmed by its loss. We disagree and grant relief.

       Post conviction relief is not premised solely on constitutional law.
13 V.S.A. § 7131 (allowing relief for sentence imposed in violation of state,
federal, and constitutional law). The fact that allocution comes historically
from the common law rather than the constitution does not deny its
fundamental nature. In re Stevens, 144 Vt. 250, 259–60 (1984). As part of
the rules of criminal procedure, a judge is required before imposing a
sentence to address the defendant personally and “ask him if he wishes to
make a statement in his own behalf and to present any information relevant
to sentencing.” V.R.Cr.P. 32(a)(1)(B). The rule further clarifies that it is
“the state, the defendant, and his attorney” who shall be allowed this
opportunity to comment. Id. at (c)(4). The Vermont Supreme Court tells
us that this opportunity must be meaningful. In re Stevens, 144 Vt. at 260
(emphasis in original). Merely allowing the petitioner’s attorney to speak is
not sufficient. As Justice Black wrote, “The most persuasive counsel may
not be able to speak for a defendant as the defendant might, with halting
eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304
(1961) (Black, J. dissenting), cited in In re Stevens, 144 Vt. at 259.

        The question of whether or not petitioner suffered harm as a result of
not having an opportunity to address the court is by its very nature
speculative. As the state notes in its brief, the specific sentence imposed
was motivated in part because the court felt it could not trust petitioner and
that his conduct merited the sentence. There is no reason to conclude that
petitioner’s statement would not have had an effect on his sentence. While
there was nothing concrete such as the self-incriminating note in Stevens,
there was the a certain amount of incriminating evidence in his prior
conduct for defendant to respond to during his allocution. More
importantly, petitioner’s plea agreement was flexible, which meant that
petitioner had a significant opportunity to lower his minimum sentence.
Allocution is meant to give a convicted defendant an opportunity to make
his case. If it is to be meaningful as a right, it cannot be revoked merely
because everyone else believes petitioner has nothing to say. Petitioner
must have that opportunity.
       Petitioner’s motion for summary judgment is granted. His sentence
is vacated and remanded for re-sentencing.

      Dated at Burlington, Vermont________________, 2004.




                                        ________________________
                                        Judge
