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State v. Rondeau

Supreme Court of Vermont

November 18, 2016

State of Vermont
v.
Michael Rondeau

         On Appeal from Superior Court, Orleans Unit, Criminal Division Brian L. Burgess, J., Specially Assigned

          Christopher C. Moll, Orleans County Deputy State's Attorney, Newport, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          SKOGLUND, J.

         ¶ 1. Defendant Michael Rondeau appeals his convictions for two counts of aggravated sexual assault, which were based on an information citing statutes not yet in effect at the time of the alleged criminal acts. Resolution of his appeal requires us to answer three related questions: first, whether defendant's convictions under the statutes listed in the information violated the Ex Post Facto Clause; second, whether the sentencing court could, post-verdict and sua sponte, amend the information to list statutes in effect when the alleged acts occurred; and finally, whether the original unamended information provided sufficient notice to sustain defendant's convictions under the statutes in effect when defendant's alleged criminal conduct occurred. Because we conclude that defendant's convictions under the listed statutes violated the Ex Post Facto Clause, that the sentencing court lacked the authority to sua sponte amend the information after trial, and that the original, unamended charging documents provided defendant with insufficient notice of the charges, we vacate defendant's convictions.

         ¶ 2. In March 2011, the State charged defendant with two counts of aggravated sexual assault. The information described the charges as follows. Count One of the information alleged that defendant committed aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8) at some time between October 1989 and October 11, 1997, when the complainant was under thirteen years old and defendant was at least eighteen years old. Under the first count, defendant faced a minimum ten-year sentence, without possibility of early release, and a maximum sentence of life in prison. Count Two of the information charged defendant with violating 13 V.S.A. § 3253a(a)(8), or aggravated sexual assault of a child as part of a common scheme, during the period between October 12, 1997, and October 11, 2000, when defendant was at least eighteen and the complainant was under sixteen. Under this count, defendant faced a minimum twenty-five-year sentence, without possibility of early release, and a maximum of life in prison. A jury convicted defendant on both counts on May 31, 2013.

         ¶ 3. During the subsequent sentencing hearing on October 25, 2013, the sentencing court raised, for the first time, significant issues surrounding the charging information and defendant's conviction. Specifically, the sentencing court noted that, although defendant had been charged and convicted pursuant to an information that listed the 2013 versions of § 3253(a)(8) and § 3253a(a)(8), the charged conduct occurred approximately a decade before the current statutes were enacted. The aggravated sexual assault statute was first enacted in 1977, [1] amended in 1990, [2]and then amended again in 2006[3]; as a result, the conduct charged in Count One spanned two versions of the aggravated sexual assault statute, neither of which was the version that was listed in the information. Similarly, aggravated sexual assault of a child as part of a common scheme was not enacted until 2009[4]; thus, defendant was charged and convicted of violating a statute that did not exist when the acts alleged in Count Two occurred. As a result of this new concern, the sentencing court did not impose a sentence at the hearing. Instead, the sentencing court asked for additional briefing from the parties to determine whether defendant's convictions violated the Ex Post Facto Clause of the U.S. Constitution.

         ¶ 4. Defendant subsequently filed a motion for Arrest of Judgment under Vermont Rule of Criminal Procedure 34, which the State opposed.

         ¶ 5. On February 3, 2014, the sentencing court issued a written order vacating defendant's convictions. Instead of relying on the Ex Post Facto Clause, the court vacated the convictions because the charging information was legally insufficient. Procedurally, the court noted that defendant's Motion for Arrest of Judgment was foreclosed as untimely, but found that, under Vermont Rule of Criminal Procedure 12(b)(2), defendant could challenge the legal insufficiency of the information at any time.

         ¶ 6. Further, according to the sentencing court, Count One of the information was insufficient to charge defendant with aggravated sexual assault under either prior version of the statute. Specifically, the court determined that the two previous iterations, which spanned the period when the information alleged that the acts occurred, had distinct elements not alleged in Count One. The earliest version, § 3253, governed up to June 1990, and required "serious bodily injury" for a conviction. Because the information did not allege this necessary element for Count One, the court concluded that the charge was insufficient to support a conviction under the statute's first iteration. The court then noted that the second iteration, § 3253(a)(8), which controlled from 1990 to 2006, prohibited aggravated sexual assault of a victim under ten. Because the information alleged that the victim was under thirteen, the court found that Count One could not support a conviction under § 3253(a)(8) either. Thus, the court vacated the conviction under Count One. Similarly, the court vacated the conviction under Count Two because the statute-§ 3253a(a)(8)- did not exist during the time period specified in Count Two, 1997 to 2000.

         ¶ 7. After vacating the convictions, the sentencing court went on to examine whether "the facts alleged in Counts [One] and [Two] fairly and sufficiently charged violations of other criminal statutes in effect at the time." Although the sentencing court's language is unclear, the court appeared to base its authority for this examination on Vermont Rule of Criminal Procedure 7, first redacting and altering the language of both Count One and Two and then concluding that the amended versions of the counts sufficiently notified defendant that he could be convicted under the statutes in effect when the majority of the alleged conduct occurred: aggravated sexual assault of a victim under ten years old, § 3253(a)(8), and aggravated sexual assault as part of a common scheme, § 3253(a)(9).

         ¶ 8. For Count One, the sentencing court changed the date the alleged conduct began to July 1, 1990, to avoid the first version of the aggravated sexual assault statute, which required "serious bodily injury." The court also changed the complainant's age from thirteen to ten. The altered version of Count One alleged that defendant:

sometime during the period of October of 1989 [July 1, 1990] up through and including October 11, 1997 engaged in the crime of aggravated sexual assault . . . with a child under the age of 13 [10] at a time when the defendant was 18 years of age or older, in violation of 13 V.S.A. § 3253(a)(8).

         According to the court, the altered Count One covered the majority of defendant's acts and conformed to the contemporaneous version of § 3253(a)(8), aggravated sexual assault of a victim under ten.

         ¶ 9. For Count Two, because § 3253a(a)(8) did not exist during the time specified in the information, the sentencing court changed the statutory citation in the information from § 3253a(a)(8) to § 3253(a)(9). To conform with § 3253(a)(9), the court also excised the "irrelevant ages of the victim and actor." The new information for Count Two alleged that defendant:

sometime during the period of October 12, 1997 up through and including October 11, 2000, engaged in the crime of aggravated sexual assault of a child at a time when the defendant was at least 18 years of age and the victim was under the age of 16 . . . as part of the defendant's common scheme and plan, in violation of 13 V.S.A. § 3253a(a)(8)[(a)(9)].

         ¶ 10. With this altered information in hand, the sentencing court concluded that the amended charges in Count One and Count Two provided defendant with sufficient notice of all the essential elements in § 3253(a)(8) and § 3253(a)(9), as required by Criminal Procedure Rule 7(b). Specifically, the court determined that the altered age ranges in both counts were excess elements that did not substantially mislead or unfairly frustrate the defense. According to the court, the case was not a dispute over age, dates, and assault details; rather, defendant's case rested on disproving the credibility of the complainant's testimony. Moreover, the court opined that the redacted information benefited defendant because the altered counts constricted the State's original charge and did not undermine the defense. As a result, the court entered judgment on the guilty verdicts for the altered versions of Count One and Count Two, "as limited to the elements and statutes in effect at the time of the misconduct charged."

         ¶ 11. The sentencing court concluded its written decision by sentencing defendant. The court noted that, unlike the statutes originally charged, the versions of § 3253(a)(8) and § 3253(a)(9) imposed sua sponte by the court each carried a maximum sentence of life in prison with no mandatory minimum.[5] The court sentenced defendant consistent with these sentencing ranges to a minimum sentence of twenty-five years and a maximum of life to serve on each altered count, to run concurrently with each other.

         ¶ 12. On appeal, defendant claims the court erred in three respects: first, defendant argues the court usurped the jury's duty by impermissibly entering a judgment of guilty on the altered information; second, defendant contends the court did not possess the authority to amend the charges sua sponte and post-verdict; third, defendant asserts the jury's verdict was not consistent with the newly identified charges and applicable penalties.

         ¶ 13. Although defendant failed to object at trial that the information was legally insufficient to support a conviction, under Criminal Procedure Rule 12(b)(2) a motion alleging a defect in the information may be made at any time. See State v. Stell, 2007 VT 106, ¶ 10, 182 Vt. 368, 937 A.2d 649. This is particularly true where, as in this case, our review of the information implicates two constitutional provisions directly related to whether a defect exists in the information: the Ex Post Facto Clause and the Sixth Amendment.

         ¶ 14. Under the Ex Post Facto Clause, states may not retrospectively apply laws to a criminal defendant's prior actions, if that retroactive application disadvantages the affected offender. Lynce v. Mathis, 519 U.S. 433, 441 (1997); see U.S. Const. art. I, § 10, cl. 1 ("No State shall . . . pass any . . . ex post facto Law."). The Ex Post Facto Clause protects criminal defendants by assuring that "legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29 (1981). Similarly, the Sixth Amendment, incorporated by the Due Process Clause of the Fourteenth Amendment, confers upon an accused criminal the right to be informed of the cause and nature of the accusation against him or her. State v. Christman, 135 Vt. 59, 60, 370 A.2d 624, 625 (1977); see U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation."); Vt. Const. ch. I, art. 10 ("That in all prosecutions for criminal offenses, a person hath a right . . . to demand the cause and nature of the accusation.").

         ¶ 15. Whether defendant's convictions sufficiently complied with these constitutional requirements is a question of law that we review de novo. State v. Thayer, 2010 VT 78, ¶ 19, 188 Vt. 482, 14 A.3d 231. Specifically, as indicated above, resolution of this appeal requires us to determine if defendant's convictions violated the Ex Post Facto Clause; and, if so, whether the sentencing court could, post-verdict and sua sponte, amend the information to cure the ex post facto violation or, alternatively, whether the original information provided sufficient notice to sustain defendant's conviction under the statutes in effect when the alleged conduct occurred. We address each count separately, with these questions in mind.

         I. Count One: Aggravated Sexual Assault Under § 3253(a)(8)

         ¶ 16. It is plain that defendant's convictions under the current version of the aggravated sexual assault statute violated the Ex Post Facto Clause by retrospectively applying a statute that increased the punishment defendant faced. Thus, we agree with the sentencing court that defendant's convictions under the current aggravated sexual assault statutes should be vacated, albeit on a different legal basis.[6] We further conclude that the information could not be altered sua sponte by the sentencing court after conviction and that the information as written did not provide defendant with sufficient notice pursuant to Criminal Procedure Rule 7 to sustain defendant's convictions under the statutes in effect when the acts occurred.

         A. Ex Post Facto Clause

         ¶ 17. As stated above, the general focus of the Ex Post Facto Clause is to protect criminal defendants from "laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995) (quotation omitted). To run afoul of the clause, the U.S. Supreme Court has long made clear that a law must fit within the four categories described in Calder v. Bull, 3 U.S. 386, 390 (1798).[7] See Carmell v. Texas, 529 U.S. 513, 539 (2000) (noting prior precedent holding "it was a mistake to stray beyond Calder's four categories").

         ¶ 18. Calder's third category prohibits retroactive application of "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder, 3 U.S. at 390. A law retroactively increases punishment if, objectively analyzed, the legislative change "created a sufficient risk of increasing the measure of punishment attached to the covered crimes." Garner v. Jones, 529 U.S. 244, 250 (2000) (quotation omitted). No exact formula exists for determining whether a change in the law affects punishment sufficiently enough to violate the Ex Post Facto Clause; however, a "speculative and attenuated possibility" of increasing the punishment does not trigger an ex post facto violation. Morales, 514 U.S. at 509.

         ¶ 19. Here, the Legislature amended the aggravated sexual assault statute twice, in 1990 and 2006, increasing the penalty each time. Prior to the 1990 amendment, the maximum sentence a defendant faced for aggravated sexual assault was twenty-five years in prison. 1977, No. 51, §1. The 1990 amendment did not impose a mandatory minimum, but it increased the maximum sentence to life in prison. 1989, No. 293 (Adj. Sess.), § 6. Then, the 2006 amendment imposed a mandatory minimum of "not less than ten years" and retained the maximum sentence of life in prison. 2005, No. 192 (Adj. Sess.), § 10; see also 13 V.S.A. § 3253(b) (describing sentencing range for violators of § 3253(a)).

         ¶ 20. Thus, under the statutes in effect at the time, defendant would have faced a maximum of twenty-five years for the alleged conduct that occurred prior to 1989 and, for the conduct that occurred between 1990 and 1997, life in prison with no mandatory minimum. Instead, under the current version of the aggravated sexual assault statute, defendant faced a mandatory minimum of ten years in prison and a maximum of life imprisonment. See 13 V.S.A. § 3253(b). This retrospectively applied sentencing range-a ten year mandatory minimum with a maximum of life in prison-created a sufficient risk that defendant would receive a higher sentence and, as a result, constituted an ex post facto violation under Calder's third category. See Peugh v. United States, ___ U.S. ___, 133 S.Ct. 2072, 2084 (2013) ("A retrospective increase in the [sentencing] range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."); see also Lindsey v. Washington, 301 U.S. 397, 400-01 (1937) (holding that statute that makes "mandatory what was before only the maximum sentence" violates rule against ex post facto laws).

         B. Vermont Rule of Criminal Procedure 7(d): Amending the Information

         ¶ 21. This does not end our inquiry, however. We must determine whether the sentencing court could sua sponte amend the information after conviction to list the statutes in effect when the alleged acts occurred.[8]

         ¶ 22. We conclude that Rule 7(d) does not allow a trial court to sua sponte amend the information post-verdict. Under Rule 7(d), "[i]f no additional or different offense is charged and if substantial rights of the defendant are not prejudiced, the court may permit an indictment or information to be amended at any time after trial has commenced and before verdict." V.R.Cr.P. 7(d). We have upheld "merely technical" amendments under this rule, as long as the amendment does not prejudice the defendant or impair his defense. State v. Burclaff, 138 Vt. 461, 465-66, 418 A.2d 38, 41 (1980).

         ¶ 23. In this case, although the sentencing court did not cite to Rule 7(d), the court altered the following portions of Count One's charge:

sometime during the period of October of 1989 [July 1, 1990] up through and including October 11, 1997 engaged in the crime of aggravated sexual assault[, consisting of contact between the defendant's penis and the victim's mouth, or any intrusion however slight by the defendant's hand into the victim's vagina, ] with a child under the age of 13 [10] at a ...

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