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In re Blow

Supreme Court of Vermont

August 30, 2013

In re Jason Blow

On Appeal from Superior Court, Chittenden Unit, Civil Division Geoffrey W. Crawford, J.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for Petitioner-Appellant.

William H. Sorrell, Attorney General, and David McLean, Assistant Attorney General, Montpelier, for Respondent-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.


¶ 1. Petitioner, who was sentenced to three to eight years in prison for lewd and lascivious behavior, appeals the trial court’s dismissal of his request for post-conviction relief on his claim of an Ex Post Facto Clause violation. During petitioner’s incarceration, the Legislature enacted a delayed-release statute extending the minimum terms inmates convicted of certain crimes must serve before becoming eligible for early release, such as parole. Although petitioner successfully challenged in an earlier suit the application of the statute to him as a violation of the Federal Constitution’s prohibition on the retroactive enhancement of punishment, he nevertheless claims that the Department of Corrections’s (DOC) now-rectified application of the delayed-release statute constitutes an ongoing violation because it delayed his participation in pre-release rehabilitative programming, effectively denying him a chance for parole upon the completion of his minimum sentence. Petitioner also argues that this delay violated his plea agreement. We conclude that the trial court already remedied the Ex Post Facto Clause violation by restoring petitioner’s minimum sentence and that he is serving the sentence for which he bargained. We therefore affirm.

¶ 2. Petitioner pleaded guilty in July 2008 to three counts of lewd and lascivious conduct under 13 V.S.A. § 2601. The plea agreement recited consecutive sentences of one-to-five years, one-to-five years, and one-to-three years for the three charged counts, respectively. In the aggregate, the agreement contemplated a total sentence of three-to-thirteen years, although petitioner remained free to argue for a lower sentence. In January 2009, petitioner was sentenced to an effective sentence of three-to-eight years to serve. Inmates are generally eligible for parole consideration upon the completion of their minimum prison terms, 28 V.S.A. § 501(2), which, for petitioner, the DOC initially calculated to be Feb. 3, 2011. [1] Before the DOC would recommend petitioner for parole, however, it required him to complete the Vermont Treatment Program for Sexual Abusers (VTPSA), a program designed to teach offenders to modify their behavior. According to petitioner’s uncontested statement of undisputed facts, his VTPSA participation would take twelve to eighteen months to complete. The DOC generally attempts to time the beginning of the program to permit completion around the time an inmate becomes eligible for parole consideration at the expiration of his or her minimum sentence. [2]

¶ 3. In this case, according to petitioner, the DOC would not permit him to participate until he was within twelve to eighteen months of completing his minimum sentence. Based on the DOC’s original minimum-release date calculation, the DOC informed petitioner he would be eligible to begin VTPSA in June 2009. Before petitioner began VTPSA, however, the Vermont Legislature enacted 28 V.S.A. § 204b to require that inmates convicted of certain designated sexual crimes and classified as high-risk under Vermont’s sex-offender registry statutes serve at least seventy percent of their maximum sentence before becoming eligible for parole. In accordance with 13 V.S.A. § 5411(b), the DOC classified petitioner as high risk, which is defined as posing a “high degree of dangerousness... to others.” See Wood v. Pallito, Nos. 947-12-09 Wnsv, 963-12-09 Wncs, 964-12-09 Wncv, 102-2-10 Wncv, 121-2-10 Wncv, 2010 WL 4567692 (Vt. Super. Ct. Nov. 3, 2010) (citing statutory definition of high risk from 28 V.S.A. § 5401). On that basis, the DOC determined that the delayed-release statute, which became effective July 1, 2009, applied retroactively to petitioner and adjusted his minimum sentence accordingly. Because of the increase in petitioner’s minimum sentence, the DOC determined petitioner was no longer within his twelve-to-eighteen-month pre-release window for VTPSA and delayed his entry into the program.

¶ 4. In February 2010, petitioner and other similarly situated inmates filed a motion for post-conviction relief in superior court, challenging the DOC’s use of 28 V.S.A. § 204b to recalculate their minimum sentences as a violation of the Ex Post Facto Clause of the Federal Constitution. The trial court granted summary judgment to the inmates in November 2010, ruling that a violation occurred because the application of 28 V.S.A. § 204b retroactively increased the measure of the inmates’ punishment by lengthening their minimum sentences. According to the trial court, the change had the effect of categorically foreclosing eligibility to apply for furlough or parole. After the grant of summary judgment, the DOC restored petitioner’s original minimum sentence date of February 2011.

¶ 5. Following the restoration of petitioner’s original minimum sentence, petitioner had a parole hearing scheduled for January or February 2011, approximately coinciding with his restored minimum-sentence date. Petitioner waived the parole hearing after, he said, his case worker told him he had no chance of parole because he had not entered sex-offender programming. Petitioner began VTPSA programming in March 2011, about twenty-five months later than he initially anticipated. Petitioner had another parole hearing in early February 2012. The DOC recommended against parole, citing “the offender’s lack of adherence to his/her case plan to the satisfaction of the Department.” In the parole summary, petitioner’s case worker indicated that, among other things, petitioner would need to continue to participate in VTPSA and complete the program successfully before being recommended for parole. [3] Petitioner also needed to complete 180 days on conditional release. The board again denied petitioner parole.

¶ 6. In February 2012, petitioner returned to court seeking post-conviction relief. In his complaint, he maintained that the lingering effects of the alleged sex-offender-programming delay constituted an ongoing violation of the Ex Post Facto Clause because his late entry into VTPSA “created a sufficient risk of eliminating petitioner’s eligibility for parole in February[] 2012.” He argued in the alternative that the programming delay effectively rendered his plea agreement involuntary because, he claims, he bargained for the ability to apply for furlough or parole at the conclusion of his minimum sentence. Petitioner sought relief in the form of release without the required VTPSA programming, an order instructing the DOC to provide expedited programming, or an order to the parole board requiring them not to consider the petitioner’s lack of VTPSA programming when reviewing his request for parole. The State filed a motion to dismiss for failure to state a claim under Vermont Rule of Civil Procedure 12(b)(6). In response, petitioner filed a motion for summary judgment and a memorandum in opposition to the State’s motion to dismiss. The trial court granted the State’s motion to dismiss, obviating the need to dispose of petitioner’s motion for summary judgment. [4]

¶ 7. In its decision, the trial court concluded that its earlier order remedied the unconstitutional retroactive application of the delayed-release statute by restoring petitioner’s original minimum sentence. No new Ex Post Facto Clause violation occurred when petitioner was later denied parole because there was “no retroactive change to the rules concerning eligibility for sex offender programming.” Further, the trial court found the plea voluntary because petitioner was serving exactly the sentence he had bargained for. Petitioner timely appealed the court’s dismissal order.

¶ 8. A dismissal for failure to state a claim upon which relief can be granted is appropriate when “it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Richards v. Town of Norwich, 169 Vt. 44, 48, 726 A.2d 81, 85 (1999) (quotation omitted). On appeal, we review de novo the trial court’s decision to grant a motion to dismiss. Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040. As the trial court must when considering a motion to dismiss, we assume the truth of all factual allegations in the complaint and accept “all reasonable inferences that may be derived from [the] plaintiff’s pleadings.” Richards, 169 Vt. at 48-49, 726 A.2d at 85. Although our review of a motion to dismiss under Rule 12(b)(6) is confined to the pleadings, a court may take judicial notice of certain facts. See Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 10 n.4, 186 Vt. 605, 987 A.2d 258 (mem.); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in ...

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