Many v. State
| Docket Number | 21-AP-223 |
| Decision Date | 11 February 2022 |
| Parties | Joshua Many* v. State of Vermont et al. |
| Court | Vermont Supreme Court |
In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
APPEALED FROM: Superior Court, Windsor Unit, Civil Division CASE NO. 21-CV-00828 Trial Judge: Robert P. Gerety, Jr.
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
Petitioner appeals the trial court's denial of his petition for habeas corpus founded on alleged due process violations in the revocation of his furlough status and recission of parole. The trial court granted summary judgment to the State, concluding that petitioner had failed to exhaust his administrative remedies and, alternatively, that his claims were unmeritorious. We affirm.
The following facts are undisputed. At the time of the court's summary judgment decision in September 2021 petitioner was incarcerated at Southern State Correctional Facility with a minimum release date of September 24, 2019 and a maximum sentence of September 11, 2023.
In August 2020, petitioner was released from prison on conditional reentry furlough. Though he remained under sentence and subject to conditions of supervision, petitioner was able to live at home with his family, including his fiancée and her two children. He was also allowed to seek and maintain employment, correspond freely and privately with friends and loved ones, and seek medical and mental health care from providers of his choice.
In February 2021, petitioner took his fiancée's twelve-year-old son, K.R., to the Saint Albans Police Department hoping that an officer would talk to K.R. about K.R.'s behavior. Officers noticed marks or bruising on the child's neck and spoke privately with K.R., who stated that petitioner had grabbed him and scratched his neck. K.R. nevertheless told officers that he felt safe going home with petitioner.
In a follow-up interview on March 1, 2021, K.R. recanted his allegations and repeatedly told investigators that he did not think petitioner scratched his neck intentionally. Later that day petitioner met with the Parole Board, which granted him parole.
Petitioner's parole officer scheduled petitioner to meet and sign his parole agreement on March 10, 2021. Shortly before that meeting, however, the parole officer learned that the Franklin County State's Attorney would be pursuing charges against petitioner based on K.R.'s allegations. On March 9, the parole officer asked the Parole Board to rescind petitioner's parole in light of these charges. When petitioner reported to the parole office as scheduled on March 10, he was arrested and sent to prison, though he had not yet been cited or charged with a new crime.
Shortly after being reincarcerated, petitioner received a notice of suspension report alleging that he had violated the following furlough conditions:
Around the same time, he was cited for misdemeanor domestic assault. The State arraigned petitioner on a simple-assault charge but never charged him with domestic assault.
Petitioner waived a furlough violation hearing, admitted guilt to violations of Conditions 1 and 3, and agreed to case-staffing. In light of two prior furlough violations for driving-related infractions, case staff interrupted his furlough for one year.
The Parole Board held a parole recission hearing for petitioner in April 2021, which petitioner attended. Prior to the hearing the Board received copies of the charging documents for petitioner's simple-assault case and report from his parole officer. Although petitioner's then-counsel was present remotely at the hearing, the Board did not permit counsel to represent him. Petitioner's counsel nevertheless raised due process concerns and offered to provide the Board with K.R.'s victim impact statement. Petitioner requested to call witnesses, including K.R. He also asserted that the parole recission request had been filed before he was cited for the new criminal charge, and that he had not been given the opportunity to sign his parole agreement as scheduled.
The Parole Board did not allow any evidence during the hearing and declined to speak with K.R. or any other witnesses. The Board explained that because petitioner had not signed the parole papers, it was not a violation-of-parole hearing and thus petitioner did not have the right to participate. The Board rescinded the grant of parole based solely on the charging documents and parole officer's report.
In April 2021 petitioner filed a petition for habeas corpus in the civil division, challenging the revocation of his furlough and rescission of his parole. Petitioner later amended his petition with the assistance of counsel. The parties filed cross motions for summary judgment.
The trial court granted the State's motion and denied the habeas petition. The court concluded that petitioner had the right to directly appeal his furlough revocation through Vermont Rule of Civil Procedure 74 and 28 V.S.A. § 724 because petitioner's furlough had been interrupted for one year. See 28 V.S.A. § 724(b) (); id. § 724(c) (). As such, the court concluded that habeas relief was not available to petitioner because he had failed to exhaust this statutory appellate process. Petitioner contended that he could not have appealed under § 724 because he was alleging a due process violation rather than an abuse of discretion, but the court rejected this argument, reasoning that due process issues could properly be considered in § 724 appeals. Alternatively, the court concluded that the Department of Corrections (DOC) did not violate petitioner's due process rights or otherwise commit error in revoking his furlough. The court also ruled that because parole never actually went into effect for petitioner, he had no due process rights in the rescission of parole.
In his principal appellate brief, petitioner argued that he had a liberty interest in his furlough status and parole status and that due process violations occurred both in the revocation of furlough and rescission of parole. As to furlough revocation, he contended that the appeal process established by 28 V.S.A. § 724 was not an adequate alternative to habeas relief under his circumstances because the reviewing court could entertain...
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