Fleming-Pancione v. Menard, No. 38-1-16 Wncv (Tomasi, J., May 6, 2016)

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                                       VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                           CIVIL DIVISION
Washington Unit                                                                          Docket No. 38-1-16 Wncv

                                                               │
Shayne Fleming-Pancione,                                       │
 Plaintiff,                                                    │
                                                               │
    v.                                                         │
                                                               │
Lisa Menard, Commissioner,                                     │
Vermont Department of Corrections,                             │
 Defendant.                                                    │
                                                               │

                            Opinion and Order on Vt. R. Civ. P. 75 Petition

         Mr. Shayne Fleming-Pancione seeks Vt. R. Civ. P. 75 review of the Vermont

Department of Corrections’ (DOC’s or the State’s) refusal to recalculate his sentence

in conformity with Serre v. Pallito, No. 45-2-15 Bncv, 2015 WL 5176790 (Vt. Super.

Ct. June 24, 2015). In short, he seeks substantial credit for time served on an

earlier out-of-state sentence applied to a later-imposed, “concurrent” Vermont

sentence for periods of custody long predating any that could possibly be connected

to the Vermont sentence. While the analysis in Serre appears to lead to the result

Plaintiff seeks, Serre represents a dramatic departure from binding Vermont

Supreme Court decisional law, which counsels to the contrary. The Court

respectfully disagrees with the Serre Court and sees no legal basis for the relief

sought in this case.1



1The parties have fully briefed the issues and the facts in the record are sufficient
and undisputed. While the parties’ filings are not strictly framed in compliance
      1.     Standard

      Summary judgment is appropriate if the “movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Vt. R. Civ. P. 56(a). “In determining whether a genuine issue of fact

exists, the nonmoving party receives the benefit of all reasonable doubts and

inferences.” Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996).

“Where . . . the moving party does not bear the burden of persuasion at trial, it may

satisfy its burden of production by indicating an absence of evidence in the record to

support the nonmoving party’s case. The nonmoving party then has the burden of

persuading the court there is a triable issue.” Mello v. Cohen, 168 Vt. 639, 639–40

(1998).

      2.     Undisputed Facts

      The undisputed material facts are few. Plaintiff was sentenced in

Massachusetts in 2003 for a seven to ten year sentence. In 2010, he was released

on parole. In 2011, he was arrested on a Vermont warrant. In 2012, he was

sentenced on the Vermont charges to eight years to eight years and a day to serve,

concurrent to the not yet expired Massachusetts sentence, with credit for time

served as required by law.2 He was granted credit for time served from the date of

his 2011 arrest on the Vermont charges.


with Vt. R. Civ. P. 56, for purposes of analysis, the Court treats the filings in the
same manner as if the parties had more formally sought summary judgment.

2Plaintiff was also sentenced on a federal charge during the relevant time, but that
sentence has expired and is not relevant to the sentencing calculation issue in this
case.
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      Plaintiff’s argument in this case is that, because his Vermont sentence is

concurrent to the Massachusetts sentence, the two must first be aggregated as

though they were imposed simultaneously, and, then, he should receive credit for

time served in relation to any of the concurrent sentences as against the total

effective sentence. He claims a right to all time served on the Massachusetts

sentence (dating back to 2003) as against the later-imposed Vermont sentence,

including all such time before the two potentially overlapped in any way. He claims

that Vermont Supreme Court decisions and Serre require credit to be applied to

concurrent sentences in this manner even for periods in which those sentences were

not actually “concurrent.”

      3.     Analysis

      Plaintiff asserts that the outcome he seeks in this case is required by State v.

Blondin, 164 Vt. 55 (1995), and State v. LeClair, 2013 VT 114, 195 Vt. 295. But, the

analysis that would support it, if extended to apply to out-of-state sentences,

appears only in one trial court decision, Serre.

      In Serre, the plaintiff served time on his original Vermont sentence and was

subsequently released on probation. While on probation, he was charged with

obstruction of justice and several counts for violations of probation and conditions of

release. He was subsequently sentenced on the later charges, which were to run

concurrent to the original sentence, with credit for time served as required by law.

The DOC gave the plaintiff credit for being held 28 days prior to the second



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sentencing on all sentences (the time during which his custody, in effect, overlapped

with both sentences). It did not give him credit on the later sentence for the time

served on the original sentence before he began probation.

        The Serre Court determined that, because all of the sentences were

concurrent, the DOC should have first calculated an effective sentence based on the

fiction that no time had been served on any sentence. It then should deduct all time

served on any sentence, no matter when it occurred in relation to any of the

component sentences, from that fictitious effective sentence. Thus, while there was

no conceivable way that time served on the earlier-imposed sentence prior to

probation overlapped with time served on the later-imposed sentence, this made no

difference. Serre stands for the proposition that concurrence should relate back to

the inception of the earliest imposed concurrent sentence no matter when the

component sentences were imposed or the time was served. This is what Plaintiff

wants the Court to do in this case, albeit with a twist: here, the earlier sentence was

imposed by a different sovereign.

        Applying Serre, Plaintiff reasons that the eight-year minimum from his

Vermont sentence establishes his minimum effective sentence. The ten-year

maximum from his Massachusetts sentence establishes his maximum sentence. He

claims credit for all time served under any sentence since 2003 as against this new

effective sentence—which, according to this logic, presumably expired sometime in

2013.




                                          4
      Plaintiff’s argument produces absurd results, has no support in Vermont

Supreme Court decisions, and runs contrary to the thrust of them. Plaintiff’s

position would mean that his eight-year Vermont sentence that was imposed in

2012, on a charge filed in 2011, expired in 2013 due solely to time served that had

no conceivable relation to the imposition of that sentence, that charge, or his

custody status in relation to either. It would allow one paroled from a thirty year

sentence in year twenty nine, who is then sentenced to a new twenty-year sentence

made concurrent to the earlier sentence to serve no additional time whatsoever.

The later prosecution that resulted in a substantial sentence would become an

entirely moot point, subsumed by the waning days of his earlier sentence.

      But, criminal sentences generally operate prospectively, not retroactively.

The potential exception is when the criminal defendant is in custody prior to the

imposition of the sentence. Under those circumstances, the defendant may be

entitled to credit for presentence custody as against a sentence that is imposed

later. Presentence credit is awarded, in part, to ensure that one who cannot afford

to post bail is in no worse position than one who can when the sentence actually is

imposed. See In re Lampman, 135 Vt. 226, 228 (1977). As the cases reflect, the

entitlement to and calculation of presentence credit can become considerably

complicated when there are multiple sentences, which may be consecutive or

concurrent to each other, particularly when they are imposed at different times.

      The presentence credit statute that applies to Mr. Fleming-Pancione’s

Vermont sentence provides:



                                          5
      The sentence of imprisonment of any person convicted of an offense
      shall commence to run from the date on which the person is received at
      the correctional facility for service of the sentence. The court shall give
      the person credit toward service of his or her sentence for any days
      spent in custody in connection with the offense for which sentence was
      imposed.

13 V.S.A. § 7031(b) (2012) (emphasis added).3

      As the Vermont Supreme Court has made clear, an overly literalistic

application of the “in connection with” expression, in some circumstances, produces

results at odds with the intent of this legislation. For example, a criminal

defendant may be held prior to the imposition of two sentences ordered to run

consecutively. Literally, he was held “in connection with” both of those sentences.

The statute does not, however, contemplate that he should receive “double”

presentence credit—credit for the same time served but applied to each consecutive

sentence. Blondin, 164 Vt. 59–61. In some cases, then, the analysis must turn

more on the intent of the statute rather than the precise language chosen by the

Legislature to express it.

      That is the lesson of Blondin. There, the plaintiff was on parole when he was

charged with and detained on new crimes and the violation of parole. His parole

was revoked and he was given credit against the paroled sentence for his post-

parole detention. Id. at 56. He was later sentenced on the new crimes. The later-

imposed sentence was order to run consecutive to the prior sentence and he was

given no presentence credit. He already had received a “single” credit accounting



3Subsection 7031(b) was significantly amended in 2013 and no longer includes the
heavily litigated “in connection with” expression.
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for all time served. The Vermont Supreme Court refused to permit credit against

both sentences because doing so “would, in effect, make the underlying and new

sentences concurrent” for the relevant period of presentence custody. Id. It also

would undermine the sentencing judge’s ability to impose consecutive sentences,

provide incentives for criminal defendants and the State to “manipulate the timing

of judicial proceedings so as to shorten or lengthen the ultimate sentence served,”

and put the defendant who could not afford bail in a far better position than the one

who did. Id. at 57, 64. Thus, while one could plausibly argue that the disputed

presentence custody was “in connection with” each of the consecutive sentences, the

reasons a defendant may receive presentence credit supported a single credit only

for the time served.

      The more broadly stated holding of Blondin is as follows:

      [W]e hold that when a defendant is incarcerated based on conduct that
      leads both to revocation of probation or parole and to conviction on new
      charges, the time spent in jail before the second sentence is imposed
      should be credited toward only the first sentence if the second sentence
      is imposed consecutively, but toward both sentences if the second
      sentence is imposed concurrently.

Id. at 61 (emphasis added). By “the time spent in jail before the second sentence is

imposed,” the Court is unmistakably referring to that period of time that arguably

was served “in connection with” both of the sentences—in Blondin, that period

began when the defendant was detained on the new charges. The Court certainly is

not referring to all time served on the first sentence regardless of whether it had

any connection to the second sentence.




                                          7
      The principles of Blondin were applied in the circumstances of a concurrent

sentence in LeClair. There, the defendant was charged with burglary (the 2010

charge) and taken into custody. He was later released from custody on conditions

set by the Chittenden County Adult Drug Treatment Court (ADTC). LeClair, 2013

VT 114, ¶ 2, 195 Vt. at 296. If he successfully completed ADTC, he would have

received a completely suspended sentence and been immediately discharged from

probation. If he was terminated from ADTC, he would have been sentenced for

burglary within certain parameters. While participating in ADTC, he was charged

with several new crimes and was taken into custody. His participation in ADTC

then ended but only much later did the State formally move to terminate him from

ADTC. Id., 2013 VT 114, ¶ 6, 195 Vt. at 298.

      He then was sentenced on the underlying 2010 charge to three to five years

with credit for time served (the first sentence). He was sentenced to two to five

years, with credit for time served, on the 2012 charges (the second sentence). The

second sentence was made concurrent to the first. The DOC gave the defendant

credit on the first sentence for the time he was held following the initial 2010 charge

but before he was released on ADTC conditions. It gave him credit on the second

sentence for the time served between his arrest on the new charges and the

imposition of both sentences. It did not give him credit on the first sentence for the

time served between his arrest on the new charges and the imposition of both

sentences. According to the State and the trial court, the defendant did not deserve

that credit because that time served was “in connection with” the 2012 sentence



                                           8
only (presumably because the State had not filed the motion to terminate him from

ADTC). Id., 2013 VT 114, ¶ 6, 195 Vt. at 298. The defendant countered that not

giving him credit on both sentences converted his concurrent sentences into

consecutive ones for the period of time at issue.

      On appeal, the State attempted to defend the trial court’s ruling using a pre-

Blondin decision expounding on the “in connection with” expression in the

circumstance of consecutive sentences. The Court emphasized, “the crucial factor

under Blondin is whether the earlier and later sentences are to be served

concurrently or consecutively.” Id., 2013 VT 114, ¶ 9, 195 Vt. at 300. The Court

rejected the State’s argument that ADTC is materially different from probation or

parole in some way suggesting that Blondin should not apply, and then ruled as

follows:

             As we noted in Blondin, denying or granting credit in
      concurrent-sentence situations like the instant one based on when
      revocation proceedings or resentencing was initiated or finalized would
      be illogical and unfair, as it would result in credit being awarded
      depending on factors beyond the court’s control, including how quickly
      or slowly the State acted in prosecuting the defendant. Accordingly,
      defendant is entitled to credit against each of the concurrent sentences
      for the entire period he spent in jail between arrest and sentencing on
      the additional charges.

Id., 2013 VT 114, ¶ 13, 195 Vt. at 301–02 (emphasis added, citation omitted).

      Though the Court does not use the expression in that paragraph, in effect,

the time served that was “in connection with” both sentences spanned “the entire

period he spent in jail between arrest and sentencing on the additional charges,”

regardless of when the State chose to file its motion seeking termination of ADTC.



                                           9
Because the sentences were concurrent and the charged conduct was connected to

both matters, 2013 VT 114, ¶ 12, 195 Vt. at 301, that time served applied to both

concurrent sentences. If they had been consecutive, it would have applied to one

and not the other.

      Neither Blondin nor LeClair provides any support for Plaintiff’s argument in

this case. In the reported cases, the Vermont Supreme Court has been careful to

ensure that credit for time served applies to all concurrent sentences when the time

served and those sentences can be fairly viewed as overlapping within the

contemplation of the version of Section 7031(b) that applies in this case. Where

there is not such linkage, it has been careful to avoid the unwarranted award of

double or multiple credits. See State v. Aubuchon, 2014 VT 12, ¶ 26, 195 Vt. 571,

585 (denying credit to furloughee for time spent in jail on later charges because

doing so would result in double credit due to the consecutive nature of the

sentences); Blondin, 164 Vt. at 61; Marden v. Walton, 142 Vt. 204, 209 (1982) (not

permitting double credit in consecutive sentence circumstances). Plaintiff’s instant

attempt at fabricating credit based solely on the concurrent nature of the sentences

-- without regard to whether the matters are otherwise connected -- has no merit.

      While the concurrent nature of the sentences is, no doubt, a vital

consideration, it does not have the power to recreate history. The sentences in this

case were concurrent, but concurrent only from, at the very earliest, the initiation of

proceedings on the Vermont charges. The type of “retroactive” credit sought by

Plaintiff through invocation of the word “concurrent” has no parallel in Vermont



                                          10
case law. In Blondin, for example, the defendant had served a long sentence for

murder before being released on parole. His later criminal conduct led to a

revocation of parole and sentencing on new charges as well. When the Court

addressed the issue of credit, it focused on whether to afford defendant credit on

both offenses for the period between his arrest on new charges and the imposition of

sentence. It did not suggest that his new sentence could possibly have been

subsumed, in whole or part, by the twenty-four years he had already served on the

underlying murder conviction prior to his parole.

      Indeed, this Court has previously considered and rejected an argument

nearly identical to that raised by Plaintiff. In Lafayette v. Pallito, No. 111-2-11

Wncv, Decision (Vt. Super. Ct. July 7, 2011) (copy attached), the defendant was on

probation for arson when he was convicted and sentenced for murder. His

probation was revoked and he was ordered to complete his arson sentence. The

murder sentence was ordered to run concurrent to the arson sentence. The

defendant sought credit on the murder sentence for all time served on the arson

sentence merely because the sentences were “concurrent.”

      The Court was not persuaded. The “‘concurrent’ designation permitted Mr.

Lafayette to satisfy his murder and arson sentences at the same time in the years

following the second conviction.” Id. at 2 (emphasis added); see also In re Perry, 137

Vt. 168, 170 (1979) (“The words ‘consecutive’ and ‘concurrent’ are terms of art, used

to describe the relationship of two or more sentences which, at the same time, affect

an inmate’s imprisonment.” (emphasis added)). The Court determined that second



                                           11
sentence did not operate retroactively and that the defendant was not entitled to

credit for time served on the arson sentence predating custody in relation to the

murder charge.

      Such a result only makes sense. In this case, based on the concurrent nature

of the subsequent sentence and the overlap between the two sentences, Plaintiff is

likely entitled to credit on his 2003 Massachusetts sentence for any time spent in

jail related to the 2012 Vermont conviction.4 He is not entitled to credit on the

Vermont sentence for all time previously served on the unrelated Massachusetts

conviction, however. Absent some express statement of intent by the sentencing

judge, it would defy expectations and logic to conclude that, by imposing a

concurrent sentence, the Court intended the two sentences to function as if they had

both actually been entered on the same date in 2003. To the extent Serre counsels a

different result, the Court respectfully disagrees with that analysis.5

      In any event, Plaintiff’s argument fails for a more straightforward reason: it

runs directly contrary to State v. Coe, 150 Vt. 488 (1988). In Coe, the Supreme

Court adopted the “sole basis” rule to determine whether a person being held out of

4The Court expresses no opinion on whether the out-of-state nature of the original
sentence would militate against such a result.

5The Court does not believe the Defendant is bound by Serre under principles of
non-mutual, offensive collateral estoppel. See United States v. Mendoza, 464 U.S.
154, 159-62 (19184) (such estoppel is not available against the United States).
Though not all of the factors set out in Mendoza are applicable to the Vermont
setting, the Court believes it important to allow various trial courts to weigh in on
legal controversies and, ultimately, to allow the Vermont Supreme Court to decide
important legal issues. Strict imposition of estoppel against the State thwarts that
important process, and requires the State to appeal any adverse decision by a trial
court. While there may be instances where it would be appropriate to enforce non-
mutual, offensive collateral estoppel against the State, this is not one of them.
                                          12
state is entitled to presentence credit on a newly imposed Vermont sentence. Id. at

453. To receive credit, such a defendant “bears the burden of establishing that the

charge on which [the Vermont] sentence is imposed was the sole basis of the [out-of-

state] custody at issue.” Id. Plaintiff’s interpretation of the law would eliminate the

sole-basis rule and replace it with a no-basis rule -- the mere fact of a later-imposed

Vermont sentence running concurrent to an earlier imposed out-of-state sentence

alone would be sufficient to credit the Vermont sentence with all time served on the

extra-territorial sentence. That is not the law of Vermont. Since Plaintiff can make

no claim that the time he spent in Massachusetts custody from 2003 to 2011 had

any relation to the later Vermont charges, he is not entitled to credit under Coe.

                                      Conclusion

      For the foregoing reasons, summary judgment is granted to the State.

      Dated this __ day of May, 2016 at Montpelier, Vermont.



                                               _____________________________
                                               Timothy B. Tomasi,
                                               Superior Court Judge




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