In re Hyde

Decision Date14 August 2015
Docket NumberNo. 14–373.,14–373.
Citation129 A.3d 651
CourtVermont Supreme Court
Parties In re Cherie HYDE.

Matthew Valerio, Defender General, and Kelly Green, Prisoners' Rights Office, Montpelier, for PetitionerAppellant.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for RespondentAppellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

SKOGLUND, J.

¶ 1. Petitioner Cherie Hyde brought an action for post-conviction relief (PCR), challenging her felony conviction and sentence for aiding another as an accessory to commit sexual assault on a child under the age of sixteen. She appeals from the trial court's order granting summary judgment to the State on that PCR petition. We affirm.

¶ 2. The following facts are taken from the trial court's decision. At the time in question, thirty-four-year-old Mark Hulett, described by petitioner as an old friend from school, stayed at the Hyde residence most Sunday and Monday nights. In 2005, Hulett was arrested and charged with two counts of aggravated sexual assault of a minor, K.G., then ten years old. K.G. is petitioner's daughter. Hulett pled guilty and was subsequently sentenced. Shortly thereafter, while in therapy to address her victimization by Hulett, K.G. disclosed to her therapist that petitioner, her mother, had witnessed Hulett sexually assaulting her in K.G.'s bedroom in petitioner's mobile home on at least six different occasions. On one occasion, her mother came into her room while Hulett was molesting her, did nothing to stop Hulett's assault, made direct eye contact with her, put a sleeping pill for K.G. on the dresser, and then left the room, closing the door behind her.

¶ 3. Following these revelations, the Chittenden Unit for Special Investigations (CUSI) began an investigation. The CUSI team interviewed Hulett at the correctional facility. He stated that he had stayed at petitioner's residence almost every Sunday and Monday night for years, that he slept in the same room and same bed with K.G., that petitioner had "told K.G. to go to bed with him," and that petitioner regularly saw them in bed together when she closed their bedroom door at night.

¶ 4. During the investigation, petitioner acknowledged allowing Hulett to sleep in the same room and bed with K.G., even after her husband raised concerns. She admitted to the incident disclosed by K.G. of walking in on Hulett molesting K.G., making eye contact, and doing nothing. She confirmed that she did not stop Hulett from assaulting her daughter.

¶ 5. Petitioner was initially charged in December 2008 with one count of misdemeanor cruelty to a child between 2003 and May 17, 2005 (the date Hulett was arrested and charged), based on neglect and endangering the child's safety and welfare. On January 16, 2009, the State filed an amended information against petitioner to add a second felony count of accessory to, and aiding another to commit, aggravated sexual assault between 2003 and 2005, based on Hulett's commission of that crime in violation of 13 V.S.A. § 3253(a)(8) (victim under thirteen years of age). See 13 V.S.A. § 3 (accessory aiding commission of felony).

¶ 6. On November 6, 2009, the State and petitioner reached a plea agreement dismissing the first count of misdemeanor child cruelty and amending the second, the felony count, to aiding and being an accessory to sexual assault under 13 V.S.A. §§ 3, 3252(c) (any sexual act with a child under age sixteen),1 instead of the previously charged crime of accessory to aggravated sexual assault. The court accepted petitioner's guilty plea to the amended information and sentenced her to the maximum allowable sentence consistent with the plea agreement: two to ten years.

¶ 7. Prior to the plea agreement, petitioner's trial counsel had filed a motion to dismiss the misdemeanor child-cruelty charge on the ground that prosecution for that offense was commenced outside the applicable statute of limitations for misdemeanor charges: "Prosecutions for other felonies and for misdemeanors shall be commenced within three years after the commission of the offense, and not after." 13 V.S.A. § 4501(e). Trial counsel considered, but did not file, a similar motion with respect to the felony charge of accessory to sexual assault. He concluded there was little chance of success, reasoning that a felony accessory charge, under Vermont statutory and case law, was not a different or separate "other felony" for purposes of § 4501(e), but would be deemed to be a prosecution for the same felony charged against the principal actor, with respect to statute of limitations.

¶ 8. In 2013, petitioner filed a PCR petition seeking to overturn her conviction and sentence. She raised three issues in her petition: (1) the three-year statute of limitations governing aiding in the commission of a sexual assault had expired, see In re Jones, 2009 VT 113, ¶ 9, 187 Vt. 1, 989 A.2d 482 ; (2) she was denied effective assistance of counsel when her attorney failed to raise the statute-of-limitations defense; and (3) the court failed to establish a factual basis for the claim, and therefore, her plea was not voluntary. The court denied her motion for summary judgment on all grounds and granted the State's cross-motion for summary judgment. This appeal followed.

¶ 9. We review summary judgment decisions de novo, using the same standard as the trial court. In re Barrows, 2007 VT 9, ¶ 5, 181 Vt. 283, 917 A.2d 490. This Court will affirm the decision of the trial court if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Ross v. Times Mirror, Inc., 164 Vt. 13, 17–18, 665 A.2d 580, 582 (1995) ; V.R.C.P. 56(a).

¶ 10. The Vermont statute of limitations for criminal acts sets the time period in which prosecutions for crimes may be commenced. See 13 V.S.A. § 4501. Prosecutions for felonies must be commenced within three years after the commission of the offense unless they are specifically listed in the statute and given a longer period. Id. § 4501(e). Aggravated sexual assault is one such specifically listed crime. At the relevant time, prosecutions for aggravated sexual assault, aggravated sexual assault of a child, murder, arson causing death, and kidnapping could be commenced at any time after the commission of the offense.2 In other words, there was no limitations period. See id. § 4501(a). Under § 4501(b) as it read in November 2009, prosecutions for sexual assault could be "commenced within six years after the commission of the offense, and not after."

¶ 11. Petitioner argues that the crime of aiding in the commission of a felony is not specifically listed in the statute of limitations under either § 4501(a) or (b) and, therefore, prosecutions for the crime must be commenced within three years after the commission of the offense, relying on § 4501(e). As noted above, subsection (e) provides that prosecutions for misdemeanors and other felonies shall be commenced within three years. Her premise fails because an accessory to felony charge under 13 V.S.A. § 3 is not a separate and distinct "other felony" for purposes of 13 V.S.A. § 4501(e), as it is not wholly divorced from the principal crime to which the person is allegedly an accessory.

¶ 12. Section 3 of Title 13 establishes accomplice liability. It states that "[a] person who aids in the commission of a felony shall be punished as a principal." 13 V.S.A. § 3 ; see State v. Jaramillo, 140 Vt. 206, 208, 436 A.2d 757, 759 (1981) (explaining that aiding in commission of felony will support conviction as principal). "Accomplice liability is meant to convict defendants who intended to, and did in fact, aid in the commission of the charged offense, but who were not the primary perpetrators of the crime or did not participate in every aspect of the planned illegal act.’ " State v. Pitts, 174 Vt. 21, 23–24, 800 A.2d 481, 483 (2002) (quoting State v. Bacon, 163 Vt. 279, 290, 658 A.2d 54, 62 (1995) ). This Court has time and again emphasized that the accessory is in all respects to be treated—in the words of 13 V.S.A. § 3, "punished"—in exactly the same manner as one charged with the principal crime, including the requirement of a common plan and the same degree of specific intent. Id. at 26, 800 A.2d at 485 (citing Jaramillo, 140 Vt. at 208, 436 A.2d at 758 ). In contrast, 13 V.S.A. § 5, enacted as part of the same bill that established 13 V.S.A. § 3, sets forth a distinct penalty for "accessories after the fact" without reference to the principal, making it clear that "accessory after the fact" is a separate crime, whose perpetrators must be treated differently from principals. If one is to be "punished" for aiding and abetting a felony offense the same as the principal actor, then one can fairly and rightfully expect to be brought to justice for that crime within the same limitations period as the principal.

¶ 13. This view has support in other jurisdictions as well. See, e.g., United States v. Campbell, 426 F.2d 547, 553 (2d Cir.1970) (reviewing similar statute proscribing accessory aiding in commission of felony and holding that accessory statute "does not define a crime; rather it makes punishable as a principal one who aids or abets the commission of a substantive crime"); Reed v. State, 793 N.W.2d 725, 734 (Minn.2010) ("[F]or statute-of-limitations purposes, a charge of aiding and abetting first-degree murder is indistinguishable from a charge of first-degree murder.").

¶ 14. Petitioner's citations to contrary authority are unpersuasive. She cites three out-of-state decisions that place inchoate offenses in the default statute-of-limitations provisions of their respective statutory schemes, but their statutory schemes are unlike that of Vermont, and thus inapposite. She also sets forth an untenable reading of State v. Stewart, 140 Vt. 389, 438 A.2d 671 (1981), claiming this Court implied that "embezzlement and aiding in the commission of an...

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