On Appeal from Superior Court, Chittenden Unit, Civil Division. Dennis R. Pearson, J.
Matthew Valerio, Defender General, and Kelly Green, Prisoners' Rights Office, Montpelier, for Petitioner-Appellant.
Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] Petitioner Cherie Hyde brought an action for post-conviction relief (PCR), challenging her felony conviction and sentence for aiding another as an accessory to commit sexual assault on a child under the age of sixteen. She appeals from the trial court's order granting summary judgment to the State on that PCR petition. We affirm.
[¶2] The following facts are taken from the trial court's decision. At the time in question, thirty-four-year-old Mark Hulett, described by petitioner as an old friend from school, stayed at the Hyde residence most Sunday and Monday nights. In 2005, Hulett was arrested and charged with two counts of aggravated sexual assault of a minor, K.G., then ten years old. K.G. is petitioner's daughter. Hulett pled guilty and was subsequently sentenced. Shortly thereafter, while in therapy to address her victimization by Hulett, K.G. disclosed to her therapist that petitioner, her mother, had witnessed Hulett sexually assaulting her in K.G.'s bedroom in petitioner's mobile home on at least six different occasions. On one occasion, her mother came
into her room while Hulett was molesting her, did nothing to stop Hulett's assault, made direct eye contact with her, put a sleeping pill for K.G. on the dresser, and then left the room, closing the door behind her.
[¶3] Following these revelations, the Chittenden Unit for Special Investigations (CUSI) began an investigation. The CUSI team interviewed Hulett at the correctional facility. He stated that he had stayed at petitioner's residence almost every Sunday and Monday night for years, that he slept in the same room and same bed with K.G., that petitioner had " told K.G. to go to bed with him," and that petitioner regularly saw them in bed together when she closed their bedroom door at night.
[¶4] During the investigation, petitioner acknowledged allowing Hulett to sleep in the same room and bed with K.G., even after her husband raised concerns. She admitted to the incident disclosed by K.G. of walking in on Hulett molesting K.G., making eye contact, and doing nothing. She confirmed that she did not stop Hulett from assaulting her daughter.
[¶5] Petitioner was initially charged in December 2008 with one count of misdemeanor cruelty to a child between 2003 and May 17, 2005 (the date Hulett was arrested and charged), based on neglect and endangering the child's safety and welfare. On January 16, 2009, the State filed an amended information against petitioner to add a second felony count of accessory to, and aiding another to commit, aggravated sexual assault between 2003 and 2005, based on Hulett's commission of that crime in violation of 13 V.S.A. § 3253(a)(8) (victim under thirteen years of age). See 13 V.S.A. § 3 (accessory aiding commission of felony).
[¶6] On November 6, 2009, the State and petitioner reached a plea agreement dismissing the first count of misdemeanor child cruelty and amending the second, the felony count, to aiding and being an accessory to sexual assault under 13 V.S.A. § § 3, 3252(c) (any sexual act with a child under age sixteen), instead of the previously charged crime of accessory to aggravated sexual assault. The court accepted petitioner's guilty plea to the amended information and sentenced her to the maximum allowable sentence consistent with the plea agreement: two to ten years.
[¶7] Prior to the plea agreement, petitioner's trial counsel had filed a motion to dismiss the misdemeanor child-cruelty charge on the ground that prosecution for that offense was commenced outside the applicable statute of limitations for misdemeanor charges: " Prosecutions for other felonies and for misdemeanors shall be commenced within three years after the commission of the offense, and not after." 13 V.S.A. § 4501(e). Trial counsel considered, but did not file, a similar motion with respect to the felony charge of accessory to sexual assault. He concluded there was little chance of success, reasoning that a felony accessory charge, under Vermont statutory and case law, was not a different or separate " other felony" for ...