On
Appeal from Superior Court, Washington Unit, Civil Division,
Timothy B. Tomasi, J.
Shayne
Fleming-Pancione, Pro Se, Baldwin, Michigan,
Plaintiff-Appellant.
William H. Sorrell, Attorney General, and Ultan Doyle,
Assistant Attorney General, Montpelier, for
Defendant-Appellee.
Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
DOOLEY, J.
¶
1. Petitioner Shayne Fleming-Pancione is an inmate supervised
by the Department of Corrections (DOC). He appeals the
determination of the superior court that he was not entitled
to a reduction in his Vermont sentence for time spent serving
an earlier sentence in Massachusetts. We affirm.
¶
2. The following facts are undisputed by the parties. In
August 2003, petitioner was charged with armed robbery in
Massachusetts. He pled guilty and was sentenced to serve
seven to ten years in prison. In 2010, after serving
approximately seven years of his Massachusetts sentence,
petitioner was released on community supervision.
¶
3. In September 2011, petitioner was charged in Vermont with
grand larceny and assault and robbery based on conduct that
was alleged to have occurred in August 2011, and a warrant
was issued for his arrest. Petitioner was arrested in
December 2011 and held in a Vermont correctional facility.
¶
4. In December 2012, petitioner pled guilty to grand larceny
in the Vermont Superior Court, Windham Criminal Division. The
court sentenced him to incarceration of eight years to eight
years and one day. The sentencing court ordered that the
sentence was to run "conc[urrent] to MA sentence serving
now" and to a federal sentence that was yet to be
imposed.[1] The court also ordered that petitioner was
entitled to "[c]redit for time served according to law
including from 12/22/11 to this date."
¶
5. DOC calculated petitioner's minimum release date to be
December 19, 2019, and his maximum release date to be
December 20, 2019. It granted petitioner credit against his
sentence for the time he spent in custody following his
December 2011 arrest while his Vermont case was pending. In
January 2016, petitioner asked DOC to recalculate his
sentence to give him credit for the period when he was
incarcerated in Massachusetts prior to his arrest on the
Vermont charges. DOC denied petitioner's request.
¶
6. Petitioner then filed a complaint in superior court
seeking review of DOC's action pursuant to Vermont Rule
of Civil Procedure 75. He attached exhibits and a memorandum
of law to his complaint. DOC filed a memorandum of law
opposing petitioner's complaint, along with a supporting
affidavit. Because the issues were fully briefed and the
facts were undisputed, the superior court treated the
parties' filings as though they had sought summary
judgment. The superior court ruled that the earliest possible
date when petitioner's two sentences began to run
concurrently was the date when Vermont proceedings began. It
held that petitioner was not entitled to presentence credit
for the time he spent in Massachusetts custody because he was
not being held in connection with the Vermont charges during
that time. The court also ruled that petitioner's Vermont
charges were not the sole basis for his Massachusetts
incarceration, which precluded him from receiving presentence
credit for time served in that jurisdiction. The court
granted summary judgment in favor of DOC.
¶
7. We review summary judgment decisions de novo, applying the
same standard as the trial court. Demag v. Better Power
Equip., Inc., 2014 VT 78, ¶ 9, 197 Vt. 176, 102
A.3d 1101. "Summary judgment should be granted when,
taking all allegations made by the nonmoving party as true,
there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law."
Rubin v. Town of Poultney, 168 Vt. 624, 625, 721
A.2d 504, 506 (1998) (mem.); see also V.R.C.P. 56(a). Because
there are no disputed issues of fact, the issue before us is
solely one of law.
¶
8. We note at the outset that petitioner's arguments on
the applicable law can be confusing because they go back and
forth between two subjects: (1) the meaning of sentence
concurrency when sentences have commenced or will commence at
different times; and (2) the service credit that must be
given for a sentence that partially overlaps with a later
concurrent sentence. The important facts about the sentences
involved here are that one-the Massachusetts
sentence-commenced in 2003 and was mostly served by the time
the other commenced at the end of 2012. Petitioner's
argument is that Vermont law requires that concurrent
sentences be treated as if they commenced on the same date
and that date is the earlier start date. In our view, the
validity of this argument decides this case, and since we
reject petitioner's interpretation of Vermont law, we
agree with the superior court that DOC correctly implemented
petitioner's sentence.
¶
9. This case turns on the meaning of the phrase "terms
run concurrently." Vermont's sentencing statute
provides that "[w]hen terms run concurrently, the
shorter minimum terms merge in and are satisfied by serving
the longest minimum and the shorter maximum terms merge in
and are satisfied by discharge of the longest maximum
term." 13 V.S.A. § 7032(c)(1). It also provides,
however, that "[w]hen . . . multiple sentences are
imposed they shall run concurrent with or consecutive to each
other as the court determines at the time of sentencing and
each shall run from its respective date of commitment after
sentence." Id. § 7032(b). The meaning of
§ 7032(b) is reinforced by § 7031(b), which
provides that "[t]he sentence of ...