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Fleming-Pancione v. Menard

Supreme Court of Vermont

July 7, 2017

Shayne Fleming-Pancione
v.
Lisa Menard, Commissioner, Department of Corrections

         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 ...


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