State v. Kuhlmann, 2020-041

Docket Nº2021-151
Citation2022 VT 28
Case DateJune 24, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 28

State of Vermont

Roy H. Kuhlmann

Nos. 2020-041, 2021-151

Supreme Court of Vermont

June 24, 2022

On Appeal from Superior Court, Rutland Unit, Criminal Division. Thomas A. Zonay, J.

Matthew Valerio, Defender General, and Joshua S. O'Hara and Rebecca Turner, Appellate Public Defenders, Montpelier, for Appellant.

Rosemary Kennedy, Rutland County State's Attorney, and L. Raymond Sun, Deputy State's Attorney, Rutland, for Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.


¶ 1. Defendant Roy H. Kuhlmann appeals the criminal division's denial of his pro se motion for a new trial filed during the pendency of his appeal from sentencing and final judgment. We conclude that the trial court did not have jurisdiction to consider defendant's motion and therefore affirm.

¶ 2. The uncontested procedural history of this case is as follows. Defendant was initially charged in February 2018 and a jury convicted him of five charges on February 12, 2019. Defendant had assistance of counsel for the duration of this matter post-trial, although his representation changed several times throughout. Defendant says that the day after the verdict, he wrote a pro se motion for a new trial, which he at some point mailed to his mother for her to send


to the court via certified mail. The court never received this document and defendant has been unable to locate proof of receipt. His mother is now deceased. Defendant wrote another pro se motion for a new trial, which he hand-dated February 16, 2019, and at some time mailed to his mother for her to mail to the court. This motion was entered into Odyssey, the judiciary's onlinefiling system, as a "letter from defendant," and backdated to February 16, 2019; however, the court never date-stamped it or stamped it as filed, and there is no evidence of when or how the court received it. The court did not rule on this document.

¶ 3. On February 22, 2019, defense counsel filed a motion for acquittal and a motion for a new trial. The trial court denied both motions on March 15, 2019. That same month, defendant filed a pro se motion for a "mistrial," which went unanswered.

¶ 4. Following his sentencing on June 25, 2019, defendant filed three pro se notices of appeal on July 3, 5, and 11, respectively. Defendant's appeal from his conviction and sentencing was accepted and entered as Docket No. 2019-237. See State v. Kuhlmann, 2021 VT 52, ___Vt. ___, 260 A.3d 1115.

¶ 5. On December 12, 2019, while his appeal in Docket No. 2019-237 was pending, defendant filed another pro se motion for a new trial. The criminal division denied this motion, concluding that it was untimely and noting that defendant had already appealed his conviction. On January 16, 2020, defendant responded to the trial court in a letter that argued his motion was timely and included a copy of his February 2019 pro se motion. The same day, defendant filed a pro se notice of appeal from the trial court's denial of his December 2019 motion. This appeal was accepted and entered as Docket No. 2020-041.

¶ 6. In August 2020, defendant, represented by the Defender General's Office for his appeal in Docket No. 2020-041, and the State filed a joint motion stipulating that the criminal division did not adequately state its basis for denying defendant's December 2019 motion for a new trial and requesting this Court remand the case to the trial court "for further findings


addressing more fully the issues of (1) whether the untimeliness of the motion for [a] new trial was due to excusable neglect, V.R.Cr.P. 45(b), and (2) how the pendency of an appeal affected the [criminal division's] disposition of the motion." Based on the parties' stipulation, we granted the motion, remanded the matter to the trial court for consideration of the two issues presented in the joint motion, and placed defendant's appeal in Docket No. 2020-041 on waiting status.[1]

¶ 7. On remand, the criminal division reiterated its denial of defendant's December 2019 motion for a new trial and expanded upon its reasoning. It first concluded that the motion was untimely because it was filed approximately 300 days after final judgment, well after the fourteen-day limit prescribed in Vermont Rule of Criminal Procedure 33. Relying on the facts above, the court determined that defendant had not shown excusable neglect to justify an extension of time to file this motion under Vermont Rule of Criminal Procedure 45(b)(1). Moreover, it stated that even if defendant's motion were timely, the court was not required to consider it under Vermont Rule of Criminal Procedure 49(d) because it was not signed by an attorney and defendant had not obtained permission for hybrid representation. Lastly, as separate grounds for denying the motion, the criminal division concluded that it did not have jurisdiction to consider the motion while defendant's appeal in Docket No. 2019-237 was pending in this Court.

¶ 8. The next day, we terminated the remand and removed defendant's appeal in Docket No. 2020-041 from waiting status. Defendant filed a notice of appeal from the trial court's order issued during the remand, which was entered as Docket No. 2021-151. We consolidated the two dockets for this appeal.


¶ 9. On appeal, defendant requests that we reverse and remand for the trial court to consider his December 2019 motion for a new trial on the merits. He argues that the trial court had jurisdiction to consider his December 2019 motion because trial courts retain jurisdiction to consider any motion filed while an appeal is pending absent a specific statute stating a rule to the contrary.[2] To support this argument, he contends that the rule stated in Kotz v. Kotz, 134 Vt. 36, 38, 349 A.2d 882, 884 (1975), that "when a proper notice of appeal from a final judgment or order of the lower court is filed the cause is transferred to this Court, and the lower court is divested of jurisdiction as to all matters within the scope of the appeal," is no longer good law in light of the 1974 constitutional reorganization of Vermont courts. He also argues that the criminal division should not have denied his motion as untimely under Rule 45, because he needed only-and did- show good cause for the delay in filing. His last argument is that the criminal division erred in denying his pro se motion for lack of an attorney signature under Rule 49(d), because in doing so, it effectively denied him the opportunity to pursue hybrid representation without exercising its discretion on whether hybrid representation would be appropriate in his case.

¶ 10. We conclude that the criminal division lacked jurisdiction to consider defendant's December 2019 motion for a new trial, and therefore do not reach defendant's other arguments.


¶ 11. Whether the trial court had jurisdiction to consider defendant's motion is a question of law reviewed de novo. Paige v. State, 2013 VT 105, ¶ 8, 195 Vt. 302, 88 A.3d 1182.

¶ 12. Under the Vermont Constitution, "[t]he judicial power of the State shall be vested in a unified judicial system which shall be composed of a Supreme Court, a Superior Court, and such other subordinate courts as the General Assembly may from time to time ordain and establish." Vt. Const. ch. II, § 4. The Vermont Supreme Court's jurisdiction is derived from the Constitution, which states this Court "shall exercise appellate jurisdiction in all cases, criminal and civil, under such terms and conditions as it shall specify in rules not inconsistent with law." Id. ch. II, § 30. Trial courts, on the other hand, have "jurisdiction as provided by law," id. ch. II, § 31, meaning their jurisdiction is" 'shaped by the [L]egislature.'" In re Mountain Top Inn & Resort, 2020 VT 57, ¶ 24, 212 Vt. 554, 238 A.3d 637 (quoting State v. Saari, 152 Vt. 510, 518, 568 A.2d 344, 349 (1989)).

¶ 13. To effectuate this constitutional framework, the legislature has promulgated several statutes on the subject of jurisdiction. Three are of note for this appeal. The criminal division has jurisdiction over criminal matters, 4 V.S.A. § 30(a)(1)(B), and to "try, render judgment, and pass sentence in prosecutions for felonies and misdemeanors." Id. § 32(a). Meanwhile, this Court has "exclusive jurisdiction of appeals from judgments, rulings, and orders of the Superior Court . . . unless otherwise provided by law." Id. § 2(a).

¶ 14. There is no debate that this Court had appellate jurisdiction over defendant's appeal from final judgment and...

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