This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Civil Division. Geoffrey W. Crawford, J.
Devin McLaughlin of Langrock Sperry & Wool, LLP, Middlebury, for Petitioner-Appellant.
Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Andrew R. Strauss, Deputy State's Attorney, Burlington, for Respondent-Appellee.
Present: Reiber, C.J., Dooley and Skoglund, JJ., and Arms, Supr. J. and Burgess, J. (Ret.), Specially Assigned. DOOLEY, J., dissenting.
[¶1] Petitioner appeals from the trial court's order granting summary judgment to the State on his petition for post-conviction relief (PCR). He argues that the court applied improper legal standards in reaching its decision on his ineffective-assistance-of-counsel claim. We affirm.
[¶2] Petitioner was originally charged with aggravated sexual assault for allegedly penetrating his eight-year-old step-granddaughter with his finger. Petitioner entered into a plea agreement and pled guilty to lewd and lascivious conduct with a child. The amended charge stated that petitioner's hand had contact with the victim's vulva. The State's description of the offense, to which petitioner agreed, was as follows: " On or about November 22, 2007, [petitioner] took his granddaughter to his workshop and they were going to be playing some games. He set her up on a desk and put oil on his hands, some sort of lubricant from his workshop, and actually touched her vaginal area."
[¶3] A presentence investigation report (PSI) was completed prior to sentencing. The PSI contained statements referring to petitioner's digital penetration of the victim. Specifically, the PSI included both the victim's original statement to police that petitioner had put his finger a " little bit inside" and petitioner's admission during police questioning that he touched and digitally penetrated the victim. In addition, the PSI reported that petitioner minimized the seriousness of the event and its impact on the victim. The probation officer recommended a sentence of eight-to-fifteen years, all suspended except eight years. The PSI stated the following rationale in support of this recommendation: " [A]fter a thorough discussion considering several factors, ultimately, the focus continued to revert back to [petitioner's] minimization of the harm caused to the victim and her family and his lack of empathy." In his written response to the PSI, petitioner focused on rebutting the contention that he had minimized his conduct and the impact that it had on the victim, and he highlighted mitigating factors, such as his age, health, and remorse. Petitioner did not object to the mention of penetration in the PSI.
[¶4] At the sentencing hearing, the State argued for a sentence of ten-to-fifteen years to serve based on the nature of the crime, petitioner's failure to take responsibility, and his failure to acknowledge that his actions harmed the victim. After its closing argument, the following exchange occurred:
THE COURT: There's ... several references in [the PSI] and the affidavits and statements of everybody, to the effect that [petitioner] put his finger into this child's vagina... . [D]id I read those correctly, Ms. Hardin [the attorney for the State]?
MS. HARDIN: The contention was that -- well, first of all, [the victim] wouldn't be able to testify whether he went inside or not. The contention was, on the part of the defense, that [petitioner] was somehow bullied into making that statement after repeatedly being asked by the police officer... . That would have entailed motions to suppress and all sorts of motions to dismiss. And -- and we, in making this plea agreement, decided that we would forego
those and -- and not have the child have to come in and testify at a 12(d) hearing and this is the way we resolved the case. But yes, in fact ... the affidavit was replete and the interview was replete with that. It was initially charged as a sexual assault.
THE COURT: Well, I understood that. And ... the plea, obviously, has limited the potential incarceration... . Title 13 says that the sentencing court is to consider the nature and circumstances of the crime. And the affidavits, submitted by the defendant, and the statements that are made by the adults who talked to the child later, are ... a part of this record. Okay. Okay.
MS. HARDIN: And, Your Honor, just to add, I would say that ... the use of lubricant was pretty clear as to what the intent was.
[¶5] Petitioner's trial counsel argued for a sentence of one-to-five years, all suspended but one year, but did not address the penetration issue. In response, the State argued only that petitioner's allocution further illustrated his lack of empathy for the victim.
[¶6] In handing down its sentence, the sentencing court stated at the outset that it found the victim's description of the offense to be reliable and it recounted her version of events, including penetration. The court then stated the basis for its sentence:
[Petitioner], in his interviews, has minimized what he did. He says that the incident probably had no impact on the child, unless people would tell her otherwise. Words can't describe how serious an offense this is, because of the betrayal of this innocent child.
Much of the defense arguments [have] gone to the point of saying well, this is only one incident... . [I]t's one incident, but it's an incident that has caused so much damage that a severe sentence must be imposed. This is a horrible offense.
The common law says I must consider general deterrence, specific deterrence, rehabilitation, and punishment. Contrary to what [petitioner] has represented to this Court, his act will have a dreadful impact on this child. I don't wish it, but I've been in this business many, many years and I'm sorry to say that the prognosis is difficult for this child. The statements that I heard in Court here from the parents show that the bad impact is already being felt by this little girl. I've dealt with many people as adults who have been damaged in this way as children and the consequences of this act cannot be exaggerated.
When punishment is imposed by a court in Vermont, it must reflect the harm that has been done. The harm that is done here is almost beyond calculation. And this was not an impulsive act, this was a deliberate act that was designed and executed in several ...