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Chandler v. Pallito

Supreme Court of Vermont

September 23, 2016

Dennis K. Chandler
Andrew A. Pallito

         On Appeal from Superior Court, Washington Unit, Civil Division Timothy B. Tomasi, J.

          Dennis K. Chandler, Pro Se, Baldwin, Michigan, Plaintiff-Appellant.

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

          Matthew F. Valerio, Defender General, and Jill Paul Martin, Montpelier, for Amicus Curiae Defender General.

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

          SKOGLUND, J.

         ¶ 1. Plaintiff Dennis Chandler appeals a decision by the Superior Court, Washington Unit, Civil Division, denying his claim for summary judgment and granting the summary judgment motion filed by the Commissioner of the Vermont Department of Corrections. Plaintiff claims that several statutes and policies enacted after his incarceration had the collective effect of retroactively increasing the length of his sentence and, as a result, violated the Ex Post Facto Clause of the U.S. Constitution. We affirm, concluding that, because the statutes and policies did not retroactively alter or limit the Department's discretion over plaintiff's treatment programming and early release, their application did not result in a longer sentence than under the prior statutes and policies.

         ¶ 2. On February 6, 1997, plaintiff pled guilty to one count of aggravated sexual assault, one kidnapping count, and one count of burglary. He was sentenced in April 1997 to twenty-five to sixty years. At his sentencing hearing, an employee of the Department described the sex offender treatment programming available to plaintiff and indicated that programming would not be automatically available to plaintiff prior to his minimum release date, but that plaintiff would be eligible to have an assessment. The employee also testified that, based on plaintiff's participation in the programming and the Department's assessment of that participation, the goal of the sex offender treatment program was for plaintiff to be released at his minimum incarceration date in 2013.

         ¶ 3. At the time of plaintiff's incarceration, only the parole statute provided for release at an offender's minimum release date-the remainder of the offender's sentence would be served on parole. Under that statute-28 V.S.A. § 501(a) (1997)-offenders with a minimum term were not eligible for parole until they served the minimum sentence, less any reduction in time for good behavior.[1] Section 501(c) of the same statute granted the Parole Board the discretionary authority to place such an offender on parole as long as the Board determined that, after considering factors like the nature of the offense and the Department's examination reports, the offender could be a law-abiding citizen.[2] The furlough statute in effect was also completely discretionary, but authorized the Department's Commissioner to grant a maximum fifteen-day furlough for certain purposes, such as securing a residence or employment upon release.[3]

         ¶ 4. Subsequently, in addition to the parole and basic furlough statutes, the Legislature added two new avenues for an offender to be released at his or her minimum release date: reintegration furlough was added in 2005 and conditional reentry was enacted in 2001.[4] 28 V.S.A. § 808(a)(8) of the amended furlough statute gave the Department discretion to grant reintegration furlough to an offender in accordance with Department directives and rules adopted to evaluate the offender's fitness for reintegration. An offender in plaintiff's position could be granted reintegration furlough up to 90 days prior to the completion of his or her minimum sentence, a timeframe the Legislature extended to 180 days in 2011.[5] Similarly, the newly enacted conditional reentry statute, 28 V.S.A. § 723, allowed the Department discretionary authority to place an offender on conditional reentry status at the end of his or her minimum sentence. Supervision while on conditional reentry status was governed by another subsection of the amended furlough statute, § 808(a)(6). After 180 days of satisfactory supervision in the conditional reentry program, the Department could, in its sole discretion, submit a recommendation to the Parole Board that an offender convicted of offenses such as plaintiff's should be released on parole.[6] The Parole Board could take this recommendation into account at its discretion; however, the Board's discretion and the criteria for placing an offender in the conditional reentry program on parole remained the same as the prior version of 28 V.S.A. § 501.[7]

         ¶ 5. In response to these legislative changes, the Department promulgated a series of directives to manage the conditional reentry and reintegration furlough programs; broadly speaking, Directive 371.15 governs conditional entry and Directive 371.26 controls the reintegration furlough process. To administer the conditional reentry program, the Department created a three-tiered classification system that puts each offender on a custody level-Level A, B, or C-depending on the Department's validated risk assessment of each offender and the offender's program needs. An offender's level of custody informs the creation of an offender's case plan and also affects the reentry options available to an offender. Similarly, an offender's eligibility for release on reintegration furlough depends on factors like his or her compliance with the case plan, the offender's risk of reoffense, and the level of violence involved in the original crime. Unlike conditional reentry, however, the reintegration furlough directive does not explicitly require the Department to consider the offender's classification level; instead, the level implicitly affects the Department's decision to grant or deny reintegration furlough because an offender's ability to complete the programming and case plan-explicit factors in reintegration furlough- depend on his or her classification level. Ultimately, like conditional reentry decisions, reintegration furlough determinations are at the discretion of the Department.

         ¶ 6. As of 2008, plaintiff's case plan listed his Level of Services Inventory (LSI) risk at twenty-four and his combined reoffense and violence risk score at sixty-three.[8] Together, these validated assessments apparently placed plaintiff in custody Level B.[9] Level B offenders are eligible for sex offender treatment programming only after the Department considers a number of discretionary factors, such as the risk evident in the instant offense and the appropriateness of the specific programming methods.[10] Once a Level B offender is placed in a program and "satisfactorily" participates in the required treatment programming, conditional reentry will be granted at the offender's minimum release date, subject to additional discretionary exceptions, such as "risk to public safety."[11] In the plaintiff's case, his case plan or Offender Responsibility Plan (ORP) scheduled him to begin the Vermont Treatment Program for Sexual Abusers (VTPSA) on September 1, 2009, well in advance of his minimum release date.[12]

         ¶ 7. On July 1, 2009, the Legislature enacted 28 V.S.A. § 204b, which prohibited parole, furlough, or any other type of early release until seventy percent of a "high risk" offender's maximum sentence was completed. An offender was "high risk" under § 204b if, pursuant to 13 V.S.A. § 5411b, the offender was convicted of a listed crime and the Department designated the offender "high risk" while he or she served the sentence. The definition for "high risk" was drawn from § 5401(16), which defines "high risk" as "a high degree of dangerousness that a sex offender poses to others."[13]

         ¶ 8. On October 21, 2009, the Department reclassified plaintiff a Level C offender pursuant to Directive 371.10, the governing directive for some listed offenses. The brief case note accompanying the plaintiff's redesignation indicates that the Level C classification was based on the kidnapping of the victim, the sexual violence that occurred, the victim's vulnerability and emotional trauma, and the premeditated nature of the crime.[14] Unlike Level B offenders, the case plans for Level C offenders are focused on long term confinement; under Directive 371.11, Level C offenders are not even eligible for treatment programming until the offender has served his or her minimum sentence. Then, to be eligible for conditional reentry, Level C offenders must complete any programming in an "exemplary fashion" consistent with public safety. Although the focus of Level C is long term confinement, Level C offenders are not entirely foreclosed from the conditional reentry and reintegration furlough programs; similarly, Level C offenders are still eligible for traditional parole.

         ¶ 9. In February 12, 2010, the Department acknowledged in another case note that plaintiff's designation as a Level C offender was a mistake; instead of classifying plaintiff as a Level C offender, the Department had intended to merely evaluate plaintiff's appropriateness for Level C. The Department indicated that plaintiff's classification would be restored to Level B.

         ¶ 10. Five days later, on February 17, 2010, another Department case note described in a "Programming Determination Decision" that the Department would base plaintiff's case plan on his anticipated maximum release date. The case note cited supporting factors like the seventy percent of maximum release date requirement articulated in 28 V.S.A. § 204b, plaintiff's "high risk" designation, his LSI score, and the offense severity. Apparently, this decision precluded plaintiff from participating in the programming necessary to be eligible for conditional reentry, particularly the VTPSA program scheduled in his 2008 case plan.

         ¶ 11. Subsequently, in an April 21, 2010 letter, the Sex Offender Review Committee informed plaintiff that he would be designated a "high risk" sex offender under 13 V.S.A. § 5411b(b). Practically, this designation meant that plaintiff would be placed on the Sex Offender Internet Registry and that his sentence would be subjected to the seventy-percent rule; that is, he would be required to serve seventy percent of his maximum sentence under 28 V.S.A. § 204b. But in Wood v. Pallito, the trial court invalidated the seventy-percent rule's application to plaintiff, concluding that the rule violated the Ex Post Facto Clause. No. 947-12-09 Wncv, 2010 WL 4567692 (Vt. Super. Ct. Nov. 3, 2010),

         ¶ 12. After this holding, plaintiff attempted to gain admission to the treatment programming described in his ORP case plan, particularly VTPSA. The Department reviewed plaintiff's case and, in a letter to plaintiff on February 16, 2011, declined to initiate the sex offender treatment program necessary for plaintiff to be conditionally reentered into the community. Specifically, the Department concluded that the "egregious nature of the offenses indicates that the potential risk of harm and risk to public safety would not be sufficiently mitigated by program participation" and explained that, rather than enrolling plaintiff in the rehabilitative program, the Department would review his case every two years.

         ¶ 13. In April 2013, plaintiff filed this action against the Department's Commissioner in the superior court. After extensive discovery and pre-trial motions, plaintiff filed a motion for summary judgment. Broadly stated, plaintiff argued that the mixture of statutes and administrative policies described above constituted a violation of the Ex Post Facto Clause because their retrospective application eliminated any "opportunity for him to obtain parole, or any other type of early release" and created a sufficient risk of increasing the punishment attached to his crimes. Specifically, plaintiff alleged that, after the superior court invalidated the seventy-percent rule's application to his sentence, the Department's decision to deny his participation in treatment programming effectively created the same result because, if he could not complete the required VTPSA programming, he could not be eligible for conditional reentry, reintegration furlough, or parole at his minimum release date.

         ¶ 14. The Commissioner filed a cross motion for summary judgment claiming that the statutory changes did not increase the measure of punishment associated with plaintiff's crimes and that the Ex Post Facto Clause did not apply to the Department's programming decisions because they were rehabilitative and administrative in nature, not punitive.

         ¶ 15. In its analysis of the competing cross motions, the superior court focused on the Department's historically broad discretion over programming decisions, concluding that any change in the way the Department exercised its discretion did not amount to a legislative act subject to the Ex Post Facto Clause. Moreover, according to the court, the plaintiff provided no evidence that the Department applied some unwritten rule or policy to him that subjected his sentence to the same effect as the seventy-percent rule. Reasoning that because there was no evidence that a change in the law caused plaintiff to lose the opportunity for parole, the superior court granted the Commissioner's motion for summary judgment and denied plaintiff's cross motion. This appeal followed.

         ¶ 16. This Court reviews decisions denying or granting summary judgment by applying the same standard as the superior court. In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. Under this standard, we view the evidence in the light most favorable to the nonmoving party; the superior court's decision will be affirmed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; see also V.R.C.P. 56(a).

         ¶ 17. On appeal, plaintiff repeats his broad argument that the Department's decision to deny him the opportunity to participate in programming amounted to an ex post facto violation, but his claim now has a slightly different emphasis. Specifically, the plaintiff argues that the Department's decision to deny his programming improperly relied on the same criteria it used to designate him "high risk" under 13 V.S.A. § 5411b(b) and to subject him to 28 V.S.A. § 204b's seventy-percent rule, despite the superior court's prior invalidation of this rule. Without this reliance on the "high risk" designation, plaintiff claims that he would be automatically eligible for the programming necessary for his reentry into the community. By contrast, the Department claims on appeal that the Department's discretionary classification and programming decisions are not legislative acts subject to ...

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