State v. Tobin
| Citation | 2018 VT 108 |
| Decision Date | 12 October 2018 |
| Docket Number | No. 2017-267,2017-267 |
| Court | Vermont Supreme Court |
| Parties | State of Vermont v. Michael W. Tobin |
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 by email at: JUD.Reporter@vermont.gov or by mail at: 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 Superior Court, Bennington Unit, Criminal Division
Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, and Michael Tobin, Pro Se, Camp Hill, Pennsylvania, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. REIBER, C.J. Defendant appeals his conviction and sentence for aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8). We affirm.
¶ 2. In October 2015, the State charged defendant with aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8) based on allegations that defendant had sexually abused his biological son while the child was under the age of thirteen. After a jury trial in December 2016, the jury found defendant guilty.
¶ 3. After a hearing in July 2017, the trial court sentenced defendant to serve fifteen to twenty-five years, with credit for time served. After defendant left the room, but before the hearing concluded, the State suggested to the court that 13 V.S.A. § 3271(b) required a maximum life sentence for a conviction under 13 V.S.A. § 3253(a)(8). The court retained the initial sentence and instructed the State to file a motion, and the State accordingly filed a motion on the next business day to correct the sentence pursuant to Vermont Rule of Criminal Procedure 35. The court held a hearing on the State's motion in August 2017, at which defendant and his counsel were present, but it did not make a decision at that time. In November 2017, the court issued an order correcting defendant's sentence to fifteen years to life. Defendant timely appeals.
¶ 4. On appeal, defendant was represented by counsel, who submitted a brief on defendant's behalf. We also granted defendant permission to submit a separate brief and to make oral argument. Defendant, on his own and through counsel, makes several arguments on appeal. We understand the arguments as follows: (1) there was insufficient evidence that the victim was under thirteen years old because the State provided no evidence of the victim's date of birth; (2) defendant was not properly informed of the charge; (3) there was a Brady violation because the State withheld recordings of witnesses' statements; (4) defendant's counsel provided ineffective assistance; (5) the State violated 3 V.S.A. § 129a; (6) the case was outside the statute of limitations; (7) his conviction violated the Double Jeopardy Clause and was untimely filed; and (8) the trial court committed plain error in correcting defendant's sentence when he was not present. We address each argument in turn.
¶ 5. Defendant argues that the State produced insufficient evidence to prove the complainant was under thirteen years old, which is an element of the crime under 13 V.S.A. § 3253(a)(8), because the State did not establish the complainant's date of birth. To consider a challenge based on the sufficiency of the evidence, we review the State's evidence "in the light most favorable to the prosecution and excluding any modifying evidence," and we decide "whether that evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt." State v. Brochu, 2008 VT 21, ¶ 21, 183 Vt. 269, 949 A.2d 1035 (quotation omitted). Here the Statepresented evidence that the conduct underlying the criminal charge took place between January 2007 and March 2007 and that the complainant was seventeen years old in December 2016. The complainant also testified that he was six or seven years old when the assault occurred. This evidence was not contested and amply supports the conclusion that the complainant was under thirteen years old when the offending conduct occurred.
¶ 6. Defendant argues that he was never properly informed of his charge. Perhaps confusingly, there are two similarly numbered sections in Title 13: § 3253(a)(8) and § 3253a(a)(8). Section 3253(a)(8) criminalizes sexual assault of a victim under thirteen years old by a person at least eighteen years old. Section 3253a(a)(8) criminalizes "repeated nonconsensual sexual acts as part of the same occurrence" or "as part of the actor's common scheme and plan" where the actor is at least eighteen years old and the victim is less than sixteen years old. Defendant suggests the State charged him with violating § 3253a(a)(8), rather than § 3253(a)(8), without properly informing him that it had done so. He also points out that § 3253a was not in effect until 2009.
¶ 7. Unquestionably, "[o]ne of the most fundamental principles of our criminal justice system is that a person charged with a crime must be notified of the charges against him." State v. Cadorette, 2003 VT 13, ¶ 4, 175 Vt. 268, 826 A.2d 101. That notice must be "official, on the record notice." Id. (). The record shows defendant was given a copy of the information and the supporting police affidavit, and he waived a reading of the information at his arraignment hearing in October 2015. The information by the State's attorney states that the State charged him with conduct "in violation of 13 V.S.A. § 3253(a)(8)." Defendant received proper notice of his charge. Additionally, given that the State charged defendant with violating § 3253(a)(8), defendant's argument that he was charged underan ex post facto law is without merit. Section 3253(a)(8), in its current form, has been in effect since May 2006, before the charged conduct occurred. 2005, No. 192 (Adj. Sess.), §§ 10, 32 ().
¶ 8. Defendant contends that the State violated its obligation under Brady v. Maryland, 373 U.S. 83 (1963), by withholding certain recordings of police interviews. The State violates the Brady rule if it suppresses material evidence favorable to the defendant, resulting in prejudice to the defendant. Id. at 87; State v. LeClaire, 2003 VT 4, ¶ 8, 175 Vt. 52, 819 A.2d 719. Here defendant does not show that the State failed to disclose any evidence required to be disclosed by Vermont Rule of Criminal Procedure 16, and thus we conclude there is no Brady violation.
¶ 9. At the August 2017 hearing, defendant argued there had been a Brady violation because the State had withheld recordings of police interviews with the victim and two other witnesses. But the record reflects the State and defendant's attorney acknowledged the recordings at issue had been delivered to defendant's attorney. See United States v. Anspach, 910 F.2d 524, 526 (8th Cir. 1990) (); Halliwell v. Strickland, 747 F.2d 607, 609 (11th Cir. 1984) (same). Defendant's request to the court was that his attorney, not the State, turn over the requested discovery to him. Given that context, it appears defendant's Brady-violation argument in this appeal relates to his concern about ineffective assistance of counsel.
¶ 10. Defendant claims his attorney provided ineffective assistance because he failed to call certain witnesses during the trial at defendant's request. As stated above, his argument includes his attorney's failure to share the witness interviews with him. We generally do not consider an argument based on ineffective assistance of counsel on direct appeal, and we see no reason to make an exception here. See State v. Judkins, 161 Vt. 593, 594, 641 A.2d 350, 352(1993) (mem.) ( that "[g]enerally, the question of ineffective assistance of counsel is limited to petitions for post-conviction relief" because Court lacks adequate record to review claim on direct appeal); State v. Gabaree, 149 Vt. 229, 232-33, 542 A.2d 272, 274 (1988) (); see also 13 V.S.A. § 7131 ().
¶ 11. Defendant claims the State violated 3 V.S.A. § 129a, which prohibits a "licensee" from engaging in "unprofessional conduct," including "[w]illfully making or filing false reports or records." 3 V.S.A. § 129a(a)(7). A "licensee" in this chapter refers to professionals licensed or permitted by the Office of Professional Regulation. Id. §§ 121-122. These professionals include architects, chiropractors, and engineers, but not attorneys. Id. This Court has exclusive regulatory authority over Vermont attorneys, including prosecutors. Vt. Const. ch. II, § 30 (); In re Brittain, 2017 VT 31, ¶ 17, 204 Vt. 572, 169 A.3d 1295 ().
¶ 12. In any case, by stating nothing but that the State somehow violated this statute, defendant has failed to...
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...if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987); see also State v. Tobin, 2018 VT 108, ¶ 20, 208 Vt. 518 (in determining whether defendant right to be present at particular stage, question is whether defendant's absence affec......