State v. Thompson

• Decision Date: 31 August 2011
• Docket Number: No. 10–045.,10–045.
• Citation: 2011 VT 98,30 A.3d 671
• Parties: STATE of Vermontv.Robert THOMPSON.
• Court: Vermont Supreme Court

30 A.3d 671

2011 VT 98

STATE of Vermont

v.Robert THOMPSON.

No. 10–045.

Supreme Court of Vermont.

Aug. 31, 2011.

Present: REIBER, C.J., BURGESS, DOOLEY, JOHNSON, SKOGLUND, and BURGESS, JJ.

ENTRY ORDER

¶ 1. Defendant appeals the district court's dismissal, on jurisdictional grounds, of his motion to withdraw his plea, arguing that: (1) the court had subject matter jurisdiction to consider his motion and inherent authority to review his sentence; (2) the plea procedure was fundamentally flawed and therefore invalid; (3) there were fair and just reasons to withdraw his plea; and (4) the Vermont Department of Corrections misapplied the Interstate Compact on Probation. We find unavailing the State's after-the-fact jurisdictional challenge to defendant's motion to withdraw his plea, and therefore we reverse the district court's decision and remand the matter for the court to consider the merits of his motion.

¶ 2. Defendant resides and works in Massachusetts. Following a ski visit to Vermont, defendant's minor nephew alleged that defendant had inappropriately touched his buttocks. Based on this allegation, in December 2007, defendant was charged with lewd or lascivious conduct with a child, a felony, in violation of 13 V.S.A. § 2602. On April 22, 2009, on the morning of the trial jury draw, defendant entered into a plea agreement with the State wherein he pled no contest to an amended charge of engaging in a prohibited act, a misdemeanor, in violation of 13 V.S.A. § 2632(a)(8). The agreement recommended a suspended sentence and probation. At the April 22, 2009 change-of-plea hearing, the prosecutor noted that the parties had specifically agreed that defendant could reside in Massachusetts during his probation. The prosecutor explained that the agreement to allow defendant to live in Massachusetts was contingent upon it being approved by probation officials. The prosecutor saw “no reason to think that he would not [be approved], but [could not] guarantee that.” The court accepted defendant's plea, finding it was made knowingly and voluntarily, and on June 22, 2009 sentenced defendant to one-to-twelve months, all suspended. Defendant was placed on probation with various conditions, including sex offender special conditions. The plea agreement stated that “defendant may reside in Massachusetts.”

¶ 3. Ten days after sentencing, on July 2, 2009, defendant filed an emergency motion, asking the court either to allow him to withdraw his plea or to strike a special probation condition that was making it impossible for him to return to his home and job. He alleged that, contrary to his understanding and the terms of the plea agreement, he was forced to stay at a motel in Vermont because he could not return to his Massachusetts residence. Apparently, Massachusetts officials had refused to allow defendant to reside in his Massachusetts home based on their conclusion that his doing so would be contrary to the special sex offender condition that prohibited him from living in a neighborhood with large numbers of children. At a hearing on the motion that same day, the court suggested to the parties that it strike defendant's sentence, but keep the plea agreement in place, for thirty days to allow defendant to obtain alternative housing in Massachusetts. The court stated its intent to “put [defendant] back to where we were on June 21st,” the day before he was sentenced. The court further stated that “if we have to argue at a later point for withdrawal of the plea, then I'm—you know, I'm going to want memoranda and so forth from—from counsel as to whether—the only thing this would fit under is so-called manifest injustice.” Pursuant to the understanding reached by the court and the parties at the hearing,¹ the court issued an order that same day striking defendant's sentence, keeping the plea agreement in place, and continuing the matter for thirty days for resentencing on the same agreement after defendant obtained alternative housing in Massachusetts. Unfortunately, once the court struck defendant's sentence, Massachusetts officials refused to approve any housing for defendant or otherwise remain involved in the case.

¶ 4. Entrapped by this Catch–22 situation, defendant remained in limbo. In early August 2009, he moved again to amend the plea agreement, and then on September 1, 2009, he asked the court either to order his supervision in Massachusetts by Vermont officials or to allow him to withdraw his plea. The thrust of defendant's motion to withdraw was that the entire plea was flawed because an essential part of the plea was his ability to live in his own home and yet he was unable to do so. In two separate memoranda of law filed in September and October of 2009, the State opposed defendant's motion to withdraw his plea, but not on the basis that the court lacked jurisdiction to consider the motion. An October 9, 2009 hearing focused exclusively on the merits of the motion, with defendant, his attorney, and his probation and parole officers testifying as to their understanding of the terms and conditions of the agreement. At the close of the hearing, the court invited the parties to submit memoranda. In a November 2, 2009 memorandum of law submitted four months after the district court's July 2 order vacating defendant's sentence, the State argued for the first time that the court lacked jurisdiction to consider the merits of the motion that led to the July 2 order.

¶ 5. The court agreed with this argument and, on November 20, 2009, dismissed defendant's motion on jurisdictional grounds. According to the court, on July 2 when defendant first moved to withdraw his plea, he was in custody under sentence and therefore the court lacked jurisdiction to entertain the motion under Vermont Rule of Criminal Procedure 32(d). The court further explained that because it lacked jurisdiction over the initial motion, it had “no jurisdiction to consider the motion [to withdraw] further.” Following a January 4, 2010 hearing, the court reinstated defendant's original sentence except for striking the condition restricting his residence based on the number of children in the neighborhood. Defendant appealed, and the court granted his request to stay his sentence pending this appeal.

¶ 6. For two interrelated reasons, we conclude that the court erred by nullifying its July 2 order striking defendant's sentence and by refusing, on jurisdictional grounds, to consider defendant's motion to withdraw his plea. Before we discuss the reasons, we emphasize the narrowness of the issue before us. The issue is not whether the court made the right decision in issuing the July 2 order or whether the order is an abuse of the court's discretion. The issue is only whether the State's jurisdictional challenge is sufficient for the State to belatedly attack an order in which it acquiesced. To prevail, the State must show that the July 2 order was beyond the subject matter jurisdiction of the court so as to permit a belated attack on the order. The State fails to make the required showing.

¶ 7. First, the district court's decision to strike its July 2 order was based on its mistaken belief that the only relief defendant sought in his July 2 motion was the withdrawal of his guilty plea—relief that the court could not provide because defendant was in custody under sentence. ² In fact, defendant sought alternative relief in the nature of sentence reconsideration to eliminate the part of the sentence that made it impossible for him to return to his home. The court had jurisdiction to grant this relief, even though defendant was under sentence, because he made the motion within ninety days of the imposition of the sentence. See 13 V.S.A. § 7042(a); V.R.Cr.P. 35(b). Although it was not the exact relief defendant sought, the July 2 order must be viewed as a form of sentence reconsideration, which was within the court's discretion to grant. Indeed, even if defendant had not requested sentence reconsideration, the court could have granted such relief on its own motion. See 13 V.S.A. § 7042(a); V.R.Cr.P. 35(b). In effect, the court did so here by granting relief different from what defendant requested.³

¶ 8. We recognize that the sentence in question was based on a plea agreement, see State v. Hance, 157 Vt. 222, 227, 596 A.2d 365, 368 (1991) (stating that although Rule 35 has “limited usefulness” when a plea bargain is involved, “[w]e do not suggest that a sentence adopted pursuant to a plea agreement should never be subject to modification” under § 7042(a) and Rule 35), and that the grounds for the request for reconsideration arose after the imposition of the sentence, see State v. Sodaro, 2005 VT 67, ¶ 9, 178 Vt. 602, 878 A.2d 301 (mem.) (“It is well established that sentence reconsideration pursuant to 13 V.S.A. § 7042 is not intended to address post-incarceration matters.”). But see State v. Martinsen, 156 Vt. 643, 643, 590 A.2d 885, 886 (1991) (mem.) (stating that “a proper use of sentence reconsideration” under § 7042(a) is “to change a sentence imposed under a mistake about its legal effect on defendant's incarceration”). But such considerations go to whether the court properly exercised its jurisdiction under the circumstances rather than whether it had subject matter jurisdiction over a request such as defendant's. Certainly, the court's decision to exercise its discretion in the manner that it did does not rise to the level of a jurisdictional flaw that would allow, months later, a belated attack on a decision in which all of the parties acquiesced.

¶ 9. This brings us to our second reason why the court's decision to nullify its July 2 order was erroneous. The State did not object to the court's decision to strike defendant's sentence; indeed it acquiesced in the decision. Even if we found that the court improperly exercised its jurisdiction in its July 2 order, that erroneous exercise of jurisdiction is not the type of fundamental...