This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Addison Unit, Civil Division. Helen M. Toor, J.
Michael Rose, St. Albans, for Petitioner-Appellant.
William H. Sorrell, Attorney General, and Sarah Katz, Assistant Attorney General, Montpelier, for Respondent-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Crawford, Supr. J., Specially Assigned.
[¶1] Petitioner Roy Girouard is in the custody of the Vermont Commissioner of Corrections serving a life sentence with a possibility of parole. Petitioner appeals the superior court's denial of a motion to reopen his Vermont Rule of Civil Procedure 75 post-conviction relief petition and to order the Department of Corrections (DOC) to release him on furlough. We reverse and remand.
[¶2] Petitioner was convicted of first-degree murder in 1975 and sentenced without a minimum prison term. Prior to 2001, an inmate's eligibility for furlough was not conditioned on the completion of a minimum prison term. 28 V.S.A. § 808 (2000); see also Girouard v. Hofmann ( Girouard I ), 2009 VT 66, ¶ 3, 186 Vt. 153, 981 A.2d 419. The Legislature amended 28 V.S.A. § 808 in 2001 to condition eligibility for conditional reentry furlough on the completion of the inmate's minimum term. See 28 V.S.A. § 808(a)(6) (2013).
[¶3] In 2007, petitioner filed a Rule 75 action against the DOC alleging that DOC's refusal to consider him eligible for furlough because he lacked a minimum sentence violated the Ex Post Facto Clause of the United States Constitution. The superior court dismissed petitioner's claim, concluding that 28 V.S.A. § 808, as amended, did not violate the Ex Post Facto Clause because it did not increase the penalty for petitioner's crime. Girouard I, 186 Vt. 153, 2009 VT 66, ¶ 1, 981 A.2d 419. On appeal, this Court instructed that if the 2001 amendment " created a sufficient risk of eliminating [petitioner's] eligibility for parole" then he " may prevail" on his Ex Post Facto Clause violation claim. Id. ¶ 11. We remanded to the superior court for further factual development to determine whether the amended statute, as applied to petitioner, " produced a significant risk of increasing [his] sentence." Id. ¶ 12.
[¶4] On remand, the superior court held a bench trial in which it heard testimony from the Vermont Parole Board Director regarding the effect of furlough on parole decisions. The court found that, while furlough is but one factor DOC considers in its parole decisions, it was historically rare for a violent offender to be paroled without first being furloughed. In its December 18, 2009 order, the court concluded that petitioner's inability to obtain furlough release because he lacks a minimum sentence impacts the likelihood of his parole and therefore " creates a significant risk of lengthening his period of incarceration." The court granted petitioner Rule 75 relief and ordered DOC to " evaluate [petitioner] for furlough under the pre-2001 version of the statute."
[¶5] Following the 2009 court order, DOC's Central Case Staffing Review ...