State v. Therrien, 2021-059

Docket Nº2021-059
Citation2022 VT 35
Case DateAugust 05, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 35

State of Vermont

Randy F. Therrien

No. 2021-059

Supreme Court of Vermont

August 5, 2022

On Appeal from Superior Court, Chittenden Unit, Criminal Division Alison S. Arms, J.

Evan Meenan, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

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


¶ 1. Twelve years after the trial court ordered defendant Randy Therrien to pay restitution, defendant filed a motion to vacate the order. The court denied the motion, concluding that it was untimely under Vermont Rule of Criminal Procedure 35. We agree and affirm but remand for the trial court to correct a computational error in the order pursuant to the parties' stipulation.

¶ 2. Defendant pleaded guilty to possession of stolen property in January 2008. Defendant's counsel stipulated that the probable-cause affidavit set forth a sufficient basis for the charges. The affidavit alleged that multiple customers of a storage company in Essex, Vermont, reported that property had been taken from their units. One customer, Michael Gladu, reported that several items, worth about $5000, were stolen from his unit. Another customer, Robert


Lefebvre, similarly reported that several items were stolen, including a three-wheel all-terrain vehicle (ATV). He believed that some tools and concrete finishing items were also stolen and was trying to discern precisely what was missing.

¶ 3. The court accepted defendant's guilty plea and sentenced defendant to eight months to two years' imprisonment. The plea agreement provided that a restitution hearing would be held. The court informed defendant that if the State pursued restitution, he would be obligated to pay it. Defendant responded that he understood but did not want to be transported to the restitution hearing as he anticipated serving his sentence in an out-of-state facility to receive vocational or educational training and did not want the hearing to interrupt his training. The court told defendant that he could participate by telephone, and defendant agreed to do so. The court told defendant that his "counsel would be here" and "she can thump the table when you're not here."

¶ 4. The restitution hearing proceeded over three days. The hearing was first scheduled in May 2008. One of the State's witnesses was unavailable, so the hearing was continued to June. Defendant participated by telephone, and his counsel confirmed that he would do the same at the continued hearing.

¶ 5. The second day of hearing was held on June 16, 2008. Defendant was not present, but the docket entries reflect that his attorney agreed that the hearing could proceed in his absence. The State presented testimony from Mr. Lefebvre, who stated that he had consulted with a vendor to determine how much it would cost to replace the stolen items. The State introduced exhibits that listed the stolen property, including the ATV and several tools, and the corresponding replacement value. The sum was $13,348.07. The court questioned whether replacement value was an appropriate measure of restitution, given the age of the items. It asked the State to find an expert or some other witness who could testify to their fair market value. The State agreed to present expert testimony about the fair market value of the items, and the court agreed to hold the next hearing on June 27.


¶ 6. On June 27, 2008, the final day of the hearing was held before a different judge. Neither defendant nor his attorney were present. The court acknowledged that defendant was to appear by telephone and asked court staff whether defendant had called into the clerk's office. Court staff said that they had received no call, and the court replied, "Okay, so we can proceed." Only the State presented testimony and evidence. Ultimately, the court issued a $11,023 restitution judgment order.[1]

¶ 7. In November 2020, defendant moved to vacate the restitution order and requested a new restitution hearing. Because the June 27, 2008, hearing was held without defendant or his attorney present, he argued that the proceeding violated his constitutional rights and Vermont Rule of Criminal Procedure 32(g)(1), which guarantees due process in restitution hearings. Defendant did not raise Rule 35 as a basis to vacate the order. The State opposed the motion as untimely, noting that Rule 35 requires a motion to correct a sentence to be filed within ninety days of the court imposing the sentence and defendant's motion was filed more than twelve years after restitution was ordered. It acknowledged that "some allowance may be made for the time he was incarcerated" but asserted that he had been released as of June 2009 and made no effort to contest the order until 2020.

¶ 8. The court held hearings on defendant's motion in January and February 2021. The State reiterated that it opposed defendant's motion on timeliness grounds. The State then presented testimony of defendant's case manager from the Vermont Restitution Unit and introduced into evidence case notes memorializing all contacts between the Unit and defendant. The case manager testified that defendant had notice of the approximately $11,000 restitution order and knew about this balance "from the beginning in 2008 going forward." Defendant then testified that he had


called into the court to participate in the June 27, 2008, hearing. He explained that he did not believe that any defense attorney was present on his behalf. He said he "heard the attorney's name . . . But after that, my phone went right out. I heard nothing more after that." He further testified that he knew nothing about the $11,000 order until he was released from incarceration in 2016.

¶ 9. The court issued an order denying defendant's request to vacate the restitution order. The court first reasoned that Rule 35 applied because "[a]n obligation to pay restitution is part of a criminal sentence." 13 V.S.A. § 7043(p). Rule 35 provides that the court, "on its own initiative or on a motion of the defendant, may reduce a sentence within 90 days after the sentence is imposed." V.R.Cr.P. 35(b). The court noted that the Reporter's Notes to Rule 35 explain that the ninety-day time limit is codified by statute and uses "language similar to that used in the federal rule," which "is viewed as jurisdictional so that it cannot be enlarged or extended for any reason." Because the restitution order was more than ten years old, the court concluded that defendant's motion was "grossly untimely." Alternatively, it reasoned that defendant failed to show that the court abused its discretion in determining the amount of restitution, and that counsel's absence from the June 27, 2008, hearing did not constitute ineffective assistance because defendant had been represented at the June 16 hearing.

¶ 10. Defendant moved to reconsider, arguing that he had been denied his constitutional rights to be present and represented by counsel at a critical stage of the proceeding, and therefore, his sentence was illegal and could be corrected at any time under Rule 35(a). The court denied the motion, noting that defendant had not refuted that his motion was untimely under Rule 35(b). It also rejected defendant's argument that his sentence was illegal under Rule 35(a) and could therefore be corrected at any time, explaining that Rule 35 differentiates between an illegal sentence-one not authorized by statute-and a sentence imposed in an illegal manner-one imposed under a "legally deficient or unlawful procedure." Reporter's Notes, V.R.Cr.P. 35. The


court reasoned that by objecting to the court's procedure, defendant claimed that the order was imposed in an illegal manner under Rule 35(a). Rule 35(a) provides that a sentence imposed in an illegal manner may be corrected "within the time provided herein for reduction of a sentence." Therefore, the ninety-day time limit in Rule 35(b) applied, and the claim was still untimely.

¶ 11. Defendant appealed. He argues that the court erred by denying his motion to vacate the restitution order because in his view, the ninety-day period to correct a sentence imposed in an illegal manner is neither mandatory nor jurisdictional. He contends that he was entitled to be present and be represented by counsel during the restitution hearing, and that the court violated his constitutional rights by holding the hearing without him or his attorney. He maintains that he was prejudiced because the court double counted the three-wheeler in its restitution award, and relied on the replacement value of some of the items when such a method had not been approved as a measure of restitution and contradicted the prior judge's determination that fair market value was the appropriate measure.

¶ 12. This Court usually reviews denials of motions for sentence reconsideration for abuse of discretion. State v. Oscarson, 2006 VT 30, ¶ 7, 179 Vt. 442, 898 A.2d 123. The legal issue in this case, however, is whether the trial court had discretion to consider a motion filed beyond the time limit set forth in Rule 35(a). We review this question of law de novo. Id.; see also State v. Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126 ("The interpretation of procedural rules is a question of law which we review de novo.").

¶ 13. We generally construe procedural rules in the same manner as statutes and therefore begin with the rule's plain language. State v. Gurung, 2020 VT 108, ¶ 23, ___ Vt. ___, 251 A.3d 572. We also "consider the purpose [the rule] was designed to serve." Amidon, 2008 VT 122, ¶ 16. Further, we interpret the rule in accordance with other statutes and rules relating to the same subject as parts of a unified system. New Eng. Phoenix Co. v. Grand Isle Veterinary Hosp., 2022 VT 10, ¶ 25, ___Vt. ___...

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