Wool v. Pallito, s. 17–131 & 17–274

• Decision Date: 29 June 2018
• Docket Number: Nos. 17–131 & 17–274,s. 17–131 & 17–274
• Citation: 193 A.3d 510
• Parties: Kirk WOOL v. Andrew PALLITO, Commissioner Bernard Carter v. Lisa Menard, Commissioner
• Court: Vermont Supreme Court

193 A.3d 510

Kirk WOOL

v.Andrew PALLITO, Commissioner

Bernard Carter

v.Lisa Menard, Commissioner

Nos. 17–131 & 17–274

Supreme Court of Vermont.

January Term, 2018

June 29, 2018

Kirk Wool, Pro Se, Camp Hill, Pennsylvania, Plaintiff–Appellant.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for Plaintiff–Appellant Carter.

Thomas J. Donovan, Jr., Attorney General, and David McLean (2017–131), Assistant Attorney General, Montpelier, and Emily A. Carr, Assistant Attorney General, Waterbury, for Defendant(s)–Appellee(s).

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

SKOGLUND, J.

¶ 1. Plaintiffs are inmates in the custody of the Department of Corrections who claim that a statute and certain administrative policies enacted after their incarceration operate together to retroactively increase the length of their sentences, in violation of the Ex Post Facto Clause of the United States Constitution. We conclude that plaintiffs have failed to demonstrate an ex post facto violation and therefore affirm the trial court's award of summary judgment to the Department in each case.

I. Wool v. Pallito, No. 2017–131

¶ 2. Kirk Wool was convicted by jury in 1992 of two counts of aggravated sexual assault. He is currently serving a sentence of twenty-nine to seventy-three years for these and other crimes. His minimum sentence expired in January 2011 and his maximum sentence expires in December 2034.

¶ 3. In December 2013, Wool filed a complaint for injunctive relief alleging that the Department violated the Ex Post Facto Clause by classifying him as a Level C offender, thereby denying him access to the programming necessary to be eligible for furlough and parole.¹ He later amended his complaint to claim that the retroactive application of 13 V.S.A. § 5301(7), which categorized his offense as a "listed crime," increased his punishment by foreclosing the possibility of parole.² In March 2017, the trial court granted summary judgment to the Department, ruling that this Court's decision in Chandler v. Pallito, 2016 VT 104, 203 Vt. 482, 158 A.3d 296, disposed of Wool's ex post facto claims. Wool appealed.

II. Carter v. Menard, 2017–274

¶ 4. Bernard Carter is serving a sentence of thirty-five years to life for a 1992 aggravated sexual assault. Carter's minimum sentence expired in May 2016. In 2012, the Department determined that Carter had completed the paperwork necessary to enter sex offender treatment programming with a projected start date in May 2014. Had he begun treatment at that time, he theoretically could have completed programming before his minimum sentence expired. In 2013, however, the Department designated Carter as a Level C offender. Since that time, based upon its own directives, the Department has not offered Carter the programming necessary to be eligible for furlough or to be recommended for parole.

¶ 5. Carter had his first parole hearing in April 2016. The Parole Board denied Carter's application, noting that Carter was a high-risk sex offender who needed sex offender treatment "to address risks in the community." To improve his chances of being released on parole, the Board stated that Carter should successfully complete sex offender treatment programming and a period of time on conditional reentry, remain free of disciplinary violations, and obtain steady employment and an approved residence.

¶ 6. Carter filed a complaint for injunctive relief against the Department in November 2015, alleging that the enactment and application of 13 V.S.A. § 5301(7) and the implementation of the Department's Level C directives retroactively increased his sentence in violation of the Ex Post Facto Clause. In June 2017, the trial court granted summary judgment to the Department on the ground that Carter's case was controlled by our decision in Chandler v. Pallito, 2016 VT 104, 203 Vt. 482, 158 A.3d 296. Carter appealed. We consolidated his and Wool's appeals for purposes of oral argument and decision.

III. Standard of Review

¶ 7. We review summary judgment decisions de novo, using the same standard as the trial court. In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. ; V.R.C.P. 56(a).

IV. Analysis

¶ 8. On appeal, plaintiffs contend that the enactment of 13 V.S.A. § 5301(7) and the Department's Level C directives effectively eliminated the Department's discretion to provide plaintiffs with treatment programming prior to the expiration of their maximum sentences. Without access to programming, they argue, they will not be considered for furlough or parole. Thus, they claim that the retroactive application to them of the statute and directives increases their punishment, in violation of the Ex Post Facto Clause.

¶ 9. The Ex Post Facto Clause prohibits a state from enacting a law that retroactively increases the punishment for a crime after it was committed. Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ; U.S. Const. art. I, § 10, cl. 1. "Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept." Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). The "controlling inquiry" is "whether retroactive application of the change in ... law created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’ " Id. (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) ). Although the United States Supreme Court has declined to articulate a specific formula for determining whether a given change in law is significant enough to violate the Ex Post Facto Clause, it has stated that a change that merely creates a "speculative and attenuated possibility" of increasing punishment is insufficient. Morales, 514 U.S. at 509, 115 S.Ct. 1597.

¶ 10. Under the laws in effect in 1992—when plaintiffs committed the criminal acts that led to their incarceration—there were only two possibilities for early release, that is, release from incarceration prior to expiration of the maximum sentence. An offender was eligible to be released on parole after serving the minimum sentence, less any reductions in time for good behavior, if the Parole Board in its discretion decided that the offender could be released "without detriment to the community or himself." 28 V.S.A. § 501(a) (1983). A separate statute gave the Department discretion to grant an offender furlough for up to fifteen days for certain designated purposes, such as to contact a prospective employer or obtain a suitable residence for use upon discharge. 28 V.S.A. § 808(a) (1973). The Department also had the power to establish treatment programming and a system of classification for inmates, to make rules governing its treatment programs, and to periodically review programming decisions. 28 V.S.A. § 102(b)(2), (c)(1), (c)(8). Although the Legislature has since expanded the options for early release, the statutes governing the Department's authority over treatment programming and classification are the same today as they were in 1992.

¶ 11. In 1999, the Legislature amended the victims' rights statute to add 13 V.S.A. § 5301(7), which created a category of "listed crimes." See 1999, No. 4, § 1. Victims of listed crimes are entitled to special rights, including the right to receive certain information about the offender and the right to testify at the offender's sentencing and parole eligibility hearings. 13 V.S.A. §§ 5305(c), 5314(b), 5321(d) ; 28 V.S.A. § 507. Aggravated sexual assault—the crime committed by plaintiffs—is a listed crime. 13 V.S.A. § 5301(7)(G).

¶ 12. In 2001, the Legislature enacted the conditional reentry statute, which gave the Department discretion to conditionally release an offender at the end of his or her minimum sentence. See 2001, No. 61, § 89 (codified at 28 V.S.A. §§ 721 – 726 ). If an offender convicted of a listed crime satisfactorily completed 180 days in the conditional reentry program, the Department could recommend to the Parole Board that the offender be released on parole. 28 V.S.A. § 725. The Parole Board retained the ultimate discretion to decide whether the offender should be released on parole, however. Id. § 502a. The Legislature further expanded the options for early release in 2005 when it gave the Department discretion to grant up to ninety days of reintegration furlough to an offender to evaluate the offender's fitness for reintegration into the community.³ 2005, No. 63, § 6.

¶ 13. The Department responded to these legislative changes by adopting a series of directives that created a three-tiered prisoner classification system. Chandler, 2016 VT 104, ¶ 5, 203 Vt. 482, 158 A.3d 296. Under the system, each offender is designated by the Department as Level A, B, or C, "depending on the Department's validated risk assessment of each offender and the offender's program needs." Id."An offender's level of custody informs the creation of an offender's case plan and also affects the reentry options available to an offender." Id. The classification directives do not govern the Parole Board or limit or alter its discretion to release an offender after his minimum sentence expires.

¶ 14. In this case, both plaintiffs have been designated as Level C offenders. To be classified as Level C under Directive 371.10, an offender must be convicted of a "listed offense." Listed offenses include the listed crimes defined in 13 V.S.A. § 5301(7) as well as several other violent crimes identified by the Department in a separate directive. In addition to being a listed offense, the offender's crime must be determined to be "egregious," based on certain specific criteria, and the offender must have a score of 24 or above on the Level of Services Inventory and a score of...