State Of Vt. v. Thomas, 2009-325

• Citation: 2010 VT 107
• Decision Date: 10 December 2010
• Docket Number: No. 2009-325,2009-325
• Court: United States State Supreme Court of Vermont
• Parties: State of Vermont v. Steven Thomas, Jr.

2010 VT 107

State of Vermont
v.
Steven Thomas, Jr.

No. 2009-325

Supreme Court of Vermont

June Term, 2010
Filed: December 10, 2010

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, 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 District Court of Vermont, Unit No. 1, Windham Circuit

Tracy Kelly Shriver, Windham County State ’s Attorney, and Ellen Kryger, Deputy State’s Attorney, Brattleboro, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Karen R. Carroll, J.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1.DOOLEY, J. Defendant appeals the district court’s order of restitution following his guilty plea to aggravated assault. On appeal, defendant argues that the court erred in ordering restitution because: (1) defendant’s conviction was for attempting to cause serious bodily injury, and therefore any resulting injury was not connected to defendant’s crime; and (2) neither of the recipients of the restitution were victims of defendant’s crime.^* In addition, defendant claims that because restitution was not part of his plea agreement the court committed plain error in not giving him an opportunity to withdraw his guilty plea prior to ordering restitution. We affirm the grant of restitution, but strike the portion of the order granting restitution to the hospital, and remand.

¶ 2.The basic facts of the incident leading to defendant’s arrest are as follows. In April 2007, defendant and the victim were at a friend’s party. Late in the evening, the victim went into a small room with a woman, who was apparently defendant’s ex-girlfriend, and fell asleep. The victim awoke to being punched in the head and face by several people, including defendant. The victim and his assailants were separated. A few minutes later, the victim went outside in front of the house, where he and defendant again had an altercation. Defendant wrestled the victim to the ground, punched him and choked him. The victim passed out. The victim was then driven to a friend’s house, and the next morning he went to the emergency room at Springfield hospital. He was transferred to Dartmouth-Hitchcock Medical Center (DHMC) where he was admitted and remained for four or five days. In October 2007, defendant was charged with aggravated assault for attempting to cause the victim serious bodily injury, in violation of 13 V.S.A. § 1024(a)(1).

¶ 3.In June 2008, defendant entered a plea agreement with the State, wherein he admitted to violating his probation and pled guilty to aggravated assault. The plea agreement recommended a combined sentence of eighteen-to-twenty-seven months to serve on a preapproved furlough program. The agreement made no mention of restitution. At the change-of-plea hearing, the court outlined the elements of the aggravated assault charge and the underlying facts. In response to the court’s questioning, defendant agreed that he had done the following acts: “while some people held [the victim]... [defendant] had punched him repeatedly in the face causing him to pass out and be hospitalized for a period of time.” The court found defendant’s plea was being made knowingly and voluntarily, and accepted it. Restitution was not discussed at the hearing. The court deferred sentencing to determine if defendant was eligible for a specific preapproved furlough program. The plea agreement stated that defendant could withdraw his plea if he did not qualify for this program.

¶ 4.Defendant was accepted into the furlough program, and at the sentencing hearing in August 2008, the State explained “there [was] a substantial amount of restitution to [the victim] for the assault, and [it] would be requesting restitution.” In response, defense counsel stated that defendant challenged the amount of restitution and whether there was medical causation for the injuries. Defendant did not challenge restitution based on its omission from the plea agreement, nor did defendant seek to withdraw his plea on this basis. On September 5, defendant noticed the court that he disputed restitution because he did not agree to it in the plea agreement and he lacked an ability to pay it. On December 5, 2008, the State filed a proposed restitution order, requesting that defendant pay $10,000 to the victims’ compensation program. Defendant opposed the request, asserting that restitution was not part of the plea agreement, that some injuries may have been the result of self-defense and therefore were not proximately caused by the crime, and that he did not have the ability to pay. Several further motions were filed by both sides.

¶ 5.At a status conference on February 17, 2009, the court attempted to narrow defendant’s challenges to restitution. Defendant argued that the court lacked authority to award restitution because it was not included as part of the plea agreement. The court concluded that restitution was properly before the court given that defendant knew when he accepted the plea agreement that the State intended to seek restitution and had agreed to cooperate with the restitution unit as part of his supervised community sentence. Defendant’s other challenges were scheduled for a full evidentiary hearing.

¶ 6.The court held a restitution hearing on August 4, 2009. The victim, defendant and several witnesses testified. Defendant argued at the outset of the hearing that he was not responsible for the victim’s injuries that occurred outside the house because the victim instigated that part of the altercation. In support, defendant sought to introduce the testimony of several witnesses. The court agreed to hear testimony if the evidence indicated that someone other than defendant caused an injury to the victim, but the court ruled it would not entertain a self-defense claim. The State introduced evidence to demonstrate that the victims’ compensation program had paid $10,000 in medical bills on the victim’s behalf and that there was a bill for $8673 outstanding to DHMC.

¶ 7.Based on this evidence, the court concluded the State had made a sufficient showing to support granting restitution. The court noted that defendant had entered a plea of guilty and agreed to the factual basis of the charge including that he had repeatedly punched the victim in the face causing the victim to be hospitalized. The court found that the victim’s injuries to his neck, spine, face and brain were caused by defendant’s actions and that there was no means to...