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State v. Fontaine

Supreme Court of Vermont

June 20, 2014

State of Vermont
v.
Joshua Fontaine

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

Superior Court, Orleans Unit, Criminal Division. Howard E. Van Benthuysen, J.

James Lillicrap, Orleans County Deputy State's Attorney, Newport, for Petitioner-Appellant.

David C. Sleigh and Kyle L. Hatt of Sleigh Law, PC, St. Johnsbury, for Respondent-Appellee.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

OPINION

Page 1035

 Crawford, J.

[¶1] The State's petition for extraordinary relief raises two issues concerning defendant's sentencing: an objection to a private meeting in chambers between the judge and the minor victim of the offenses and the court's decision to impose a " split" probationary sentence on the charge of

Page 1036

lewd and lascivious conduct with a child, first offense.[*]

[¶2] On September 12, 2013, defendant pled guilty to a felony charge of lewd and lascivious conduct with a child as well as four counts of prohibited acts. The court ordered a pre-sentence investigation (PSI) and a psychosexual evaluation. Sentencing occurred on March 19, 2014 after submission of the PSI report and the evaluation.

[¶3] In the course of the sentencing hearing, the defense sought testimony from the victim, who was thirteen years old at the time the offense conduct began and sixteen at the time of sentencing. The victim is defendant's younger sister. The defense requested that the judge speak privately with the victim. The State objected although it agreed " to allow the victim to express her preference to the Court outside the presence of counsel." Specifically, the record reflects that when the judge inquired if anyone " would object to my meeting briefly with [the victim] to find out exactly what her comfort level is," the State responded that it had no objection.

[¶4] The judge met with the child in chambers. A record was kept of their conversation. Reading from a prepared statement, the victim told the judge that she did not want her brother to go to jail. She indicated that she knew what her brother had done to her was wrong, but she preferred that he receive long-term treatment and counseling. During the conversation, the judge discussed general sentencing principles with the victim. The parties also discussed whether defendant had an anger management problem and whether he was developmentally delayed. The victim noted that her brother had a history of seizures. The trial judge offered the victim a mixture of advice and sympathy and discussed ways ...


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