Chandler v. Pallito

• Decision Date: 23 September 2016
• Docket Number: No. 2016-016,2016-016
• Citation: 2016 VT 104
• Court: Vermont Supreme Court
• Parties: Dennis K. Chandler v. Andrew A. Pallito

2016 VT 104

Dennis K. Chandler v. Andrew A. Pallito

No. 2016-016

Supreme Court of Vermont

June Term, 2016

September 23, 2016

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@vermont.gov 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.

On Appeal from Superior Court, Washington Unit, Civil Division

Timothy B. Tomasi, J.

Dennis K. Chandler, Pro Se, Baldwin, Michigan, Plaintiff-Appellant.

William H. Sorrell, Attorney General, and David McLean, Assistant Attorney General, Montpelier, for Defendant-Appellee.

Matthew F. Valerio, Defender General, and Jill Paul Martin, Montpelier, for Amicus Curiae Defender General.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. SKOGLUND, J. Plaintiff Dennis Chandler appeals a decision by the Superior Court, Washington Unit, Civil Division, denying his claim for summary judgment and granting the summary judgment motion filed by the Commissioner of the Vermont Department of Corrections. Plaintiff claims that several statutes and policies enacted after his incarceration had the collective effect of retroactively increasing the length of his sentence and, as a result, violated the Ex Post Facto Clause of the U.S. Constitution. We affirm, concluding that, because the statutes and policies did not retroactively alter or limit the Department's discretion over plaintiff's treatment programming and early release, their application did not result in a longer sentence than under the prior statutes and policies.

¶ 2. On February 6, 1997, plaintiff pled guilty to one count of aggravated sexual assault, one kidnapping count, and one count of burglary. He was sentenced in April 1997 to twenty-five to sixty years. At his sentencing hearing, an employee of the Department described the sex offender treatment programming available to plaintiff and indicated that programming would not be automatically available to plaintiff prior to his minimum release date, but that plaintiff would be eligible to have an assessment. The employee also testified that, based on plaintiff's participation in the programming and the Department's assessment of that participation, the goal of the sex offender treatment program was for plaintiff to be released at his minimum incarceration date in 2013.

¶ 3. At the time of plaintiff's incarceration, only the parole statute provided for release at an offender's minimum release date—the remainder of the offender's sentence would be served on parole. Under that statute—28 V.S.A. § 501(a) (1997)—offenders with a minimum term were not eligible for parole until they served the minimum sentence, less any reduction in time for good behavior.¹ Section 501(c) of the same statute granted the Parole Board the discretionary authority to place such an offender on parole as long as the Board determined that, after considering factors like the nature of the offense and the Department's examination reports, the offender could be alaw-abiding citizen.² The furlough statute in effect was also completely discretionary, but authorized the Department's Commissioner to grant a maximum fifteen-day furlough for certain purposes, such as securing a residence or employment upon release.³

¶ 4. Subsequently, in addition to the parole and basic furlough statutes, the Legislature added two new avenues for an offender to be released at his or her minimum release date: reintegration furlough was added in 2005 and conditional reentry was enacted in 2001.⁴ 28 V.S.A.§ 808(a)(8) of the amended furlough statute gave the Department discretion to grant reintegration furlough to an offender in accordance with Department directives and rules adopted to evaluate the offender's fitness for reintegration. An offender in plaintiff's position could be granted reintegration furlough up to 90 days prior to the completion of his or her minimum sentence, a timeframe the Legislature extended to 180 days in 2011.⁵ Similarly, the newly enacted conditional reentry statute, 28 V.S.A. § 723, allowed the Department discretionary authority to place an offender on conditional reentry status at the end of his or her minimum sentence. Supervision while on conditional reentry status was governed by another subsection of the amended furlough statute, § 808(a)(6). After 180 days of satisfactory supervision in the conditional reentry program, the Department could, in its sole discretion, submit a recommendation to the Parole Board that an offender convicted of offenses such as plaintiff's should be released on parole.⁶ The Parole Board could take this recommendation into account at its discretion; however, the Board's discretion and the criteria for placing an offender in the conditional reentry program on parole remained the same as the prior version of 28 V.S.A. § 501.⁷

¶ 5. In response to these legislative changes, the Department promulgated a series of directives to manage the conditional reentry and reintegration furlough programs; broadly speaking, Directive 371.15 governs conditional entry and Directive 371.26 controls thereintegration furlough process. To administer the conditional reentry program, the Department created a three-tiered classification system that puts each offender on a custody level—Level A, B, or C—depending on the Department's validated risk assessment of each offender and the offender's program needs. An offender's level of custody informs the creation of an offender's case plan and also affects the reentry options available to an offender. Similarly, an offender's eligibility for release on reintegration furlough depends on factors like his or her compliance with the case plan, the offender's risk of reoffense, and the level of violence involved in the original crime. Unlike conditional reentry, however, the reintegration furlough directive does not explicitly require the Department to consider the offender's classification level; instead, the level implicitly affects the Department's decision to grant or deny reintegration furlough because an offender's ability to complete the programming and case plan—explicit factors in reintegration furlough—depend on his or her classification level. Ultimately, like conditional reentry decisions, reintegration furlough determinations are at the discretion of the Department.

¶ 6. As of 2008, plaintiff's case plan listed his Level of Services Inventory (LSI) risk at twenty-four and his combined reoffense and violence risk score at sixty-three.⁸ Together, these validated assessments apparently placed plaintiff in custody Level B.⁹ Level B offenders areeligible for sex offender treatment programming only after the Department considers a number of discretionary factors, such as the risk evident in the instant offense and the appropriateness of the specific programming methods.¹⁰ Once a Level B offender is placed in a program and "satisfactorily" participates in the required treatment programming, conditional reentry will be granted at the offender's minimum release date, subject to additional discretionary exceptions, such as "risk to public safety."¹¹ In the plaintiff's case, his case plan or Offender ResponsibilityPlan (ORP) scheduled him to begin the Vermont Treatment Program for Sexual Abusers (VTPSA) on September 1, 2009, well in advance of his minimum release date.¹²

¶ 7. On July 1, 2009, the Legislature enacted 28 V.S.A. § 204b, which prohibited parole, furlough, or any other type of early release until seventy percent of a "high risk" offender's maximum sentence was completed. An offender was "high risk" under § 204b if, pursuant to 13 V.S.A. § 5411b, the offender was convicted of a listed crime and the Department designated the offender "high risk" while he or she served the sentence. The definition for "high risk" was drawn from § 5401(16), which defines "high risk" as "a high degree of dangerousness that a sex offender poses to others."¹³

¶ 8. On October 21, 2009, the Department reclassified plaintiff a Level C offender pursuant to Directive 371.10, the governing directive for some listed offenses. The brief case note accompanying the plaintiff's redesignation indicates that the Level C classification was based on the kidnapping of the victim, the sexual violence that occurred, the victim's vulnerability and emotional trauma, and the premeditated nature of the crime.¹⁴ Unlike Level B offenders, the caseplans for Level C offenders are focused on long term confinement; under Directive 371.11, Level C offenders are not even eligible for treatment programming until the offender has served his or her minimum sentence. Then, to be eligible for conditional reentry, Level C offenders must complete any programming in an "exemplary fashion" consistent with public safety. Although the focus of Level C is long term confinement, Level C offenders are not entirely foreclosed from the conditional reentry and reintegration furlough programs; similarly, Level C offenders are still eligible for traditional parole.

¶ 9. In February 12, 2010, the Department acknowledged in another case note that plaintiff's designation as a Level C offender was a mistake; instead of classifying plaintiff as a Level C offender, the Department had intended to merely evaluate plaintiff's appropriateness for Level C. The Department indicated that plaintiff's classification would be restored to Level B.

¶ 10. Five days later, on February 17, 2010, another Department case note described in a "Programming Determination Decision" that the Department would base plaintiff's case plan on his anticipated maximum release date. The case note cited supporting factors like the seventy percent of maximum release date requirement articulated in 28 V.S.A. § 204b, plaintiff's "high risk" designation, his...