Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-091

                                      DECEMBER TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
 Nathan Berres                                         }    DOCKET NO. 1181-11-10 Bncr

                                                            Trial Judge: David A. Howard

                          In the above-entitled cause, the Clerk will enter:

       Defendant appeals from a trial court order dismissing a five-count information without
prejudice based on the State’s inability to locate the complaining witness. Defendant contends
the court abused its discretion in failing to dismiss with prejudice. We affirm.

        The material facts are undisputed. On November 29, 2010, defendant was arraigned on
charges of first degree aggravated assault, unlawful restraint, and interference with access to
emergency services stemming from a single incident involving the complainant. Defendant was
held without bail, and requested trial within sixty days. Jury draw was set for January 11, 2011
and trial for January 18, 2011.

        Shortly after the arraignment, complainant sent a letter to the state’s attorney, dated
November 30, 2010, stating that she was “withdrawing [her] statements” against defendant and
“asking the state to drop” the charges. Her whereabouts thereafter became an issue. Defense
counsel was unable to get complainant to come to a deposition scheduled for January 7, 2011.
The following week, the State attempted to serve complainant with a subpoena to appear and
testify at trial. A deputy sheriff was unable to locate complainant at her listed address, a
previous address, or her mother’s residence; efforts to find other possible addresses through
various state agencies were unavailing; and repeated attempts to contact her by telephone were
unsuccessful, as was a “be on the lookout” alert issued through law enforcement for a vehicle
that she was likely driving. On January 14, 2010, a Friday, the State filed a motion for
recognizance to assure complainant’s appearance at trial. The trial court denied the motion in the
absence of an opportunity for complainant to respond. Efforts to locate complainant over the
weekend were also unsuccessful.

       On the scheduled trial date, January 18, 2011, the State moved to continue the trial or
dismiss without prejudice to allow additional time to find and serve complainant. Defendant
moved for dismissal with prejudice. The trial court cancelled the trial and ordered defendant
released on conditions. Following a hearing and additional briefing, the court issued a written
ruling in early February 2011.

        Citing State v. Jones, 157 Vt. 553 (1991), the court acknowledged its authority to dismiss
a case with prejudice but noted that it was the rare case where this was appropriate. Reviewing
the record, the court concluded that the facts did not “approach” the concerns that underlay the
dismissal with prejudice in Jones, where the State had sought to dismiss a case without prejudice
in a transparent attempt to circumvent the trial court’s earlier denial of a continuance. See id. at
555 (upholding dismissal with prejudice where trial court found that “the State’s actions were
entirely motivated to obtain a continuance to which it was not entitled”). Here, the court found
no evidence of prosecutorial bad faith in seeking to dismiss without prejudice due to the
complainant’s absence. Indeed, the court found that the State had made “serious efforts to obtain
[complainant’s] presence from the time the trial was scheduled.” The court further found that no
prejudice to defendant would result from granting the State’s motion, noting that defendant was
released on minimal conditions, the offenses had occurred relatively recently, and there was no
claim that evidence would grow stale or memories fade due to the delay. Finally, the court found
that the charges were serious, involving violent felonies. Accordingly, the court granted the
motion to dismiss without prejudice. This appeal followed.

        As the trial court here recognized, a court may dismiss an information if it “concludes
that such dismissal will serve the ends of justice and the effective administration of the court’s
business.” V.R.Cr.P. 48(b)(2). As the court also correctly observed, separation-of-power
concerns and the public interest in prosecuting those charged with criminal offenses limit a
court’s discretion to dismiss with prejudice, against the wishes of the prosecutor, to those “rare
and unusual” cases where “compelling circumstances require such a result to assure fundamental
fairness.” State v. Sauve, 164 Vt. 134, 140 (1995). Sauve set forth a non-exclusive list of factors
for courts to consider in deciding the issue, including the seriousness of the charged offense,
prejudice to the defendant from the passage of time, and the conduct of the prosecution. Id. We
review the trial court’s decision to dismiss solely for abuse of discretion, and will disturb its
ruling only where that discretion was “entirely withheld” or exercised “for clearly untenable
reasons.” State v. Fitzpatrick, 172 Vt. 111, 116 (2001).

        The record here, summarized above, reveals no basis to overturn the trial court ruling.
The court carefully reviewed the relevant factors and, as noted, found no prejudice to defendant,
no evidence of prosecutorial bad faith, and considerable diligence in the State’s efforts to locate
the complainant. Although defendant challenges these findings, asserting that the State
somehow engaged in “covert manipulation” of the trial court docket, the record does not support
the claim. See State v. Bain, 2009 VT 34, ¶ 15, 185 Vt. 541 (we will affirm trial court’s findings
unless there is no reasonable or credible evidence to support them). That the State was aware by
mid-December 2010 of difficulties locating the complainant does not alter this conclusion or
demonstrate, as defendant claims, an “insidious” effort to rob the court of control over its docket.
This distinguishes the instant case from Jones, where the dismissal with prejudice was based on
the trial court’s specific finding of an attempt to manipulate the docket. 157 Vt. at 555.
Accordingly, we find no abuse of discretion, and no basis to disturb the judgment.




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Affirmed.

            BY THE COURT:

            _______________________________________
            Paul L. Reiber, Chief Justice

            _______________________________________
            Brian L. Burgess, Associate Justice

            _______________________________________
            Beth Robinson, Associate Justice




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