Fleming-Pancione v. Menard, 38-1-16 Wncv

• Citation: 38-1-16 Wncv
• Case Date: May 06, 2016
• Court: Superior Court of Vermont

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

No. 38-1-16 Wncv

Superior Court of Vermont, Civil Division, Washington Unit

May 6, 2016

OPINION AND ORDER ON VT. R. CIV. P. 75 PETITION

Timothy B. Tomasi, Superior Court Judge.

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]

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, concur rent 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.

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 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.

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:

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

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