Appeal from Superior Court, Washington Unit, Civil Division
Mary Miles Teachout, J.
Wool, Pro Se, Camp Hill, Pennsylvania, Plaintiff-Appellant.
Bradley S. Stetler of Stetler, Allen & Kampmann,
Burlington, for Plaintiff-Appellant Carter.
J. Donovan, Jr., Attorney General, and David McLean
(2017-131), Assistant Attorney, Montpelier, and Emily A.
Carr, Assistant Attorney General, Waterbury, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Plaintiffs are inmates in the custody of the Department of
Corrections who claim that a statute and certain
administrative policies enacted after their incarceration
operate together to retroactively increase the length of
their sentences, in violation of the Ex Post Facto Clause of
the United States Constitution. We conclude that plaintiffs
have failed to demonstrate an ex post facto violation and
therefore affirm the trial court's award of summary
judgment to the Department in each case. I. Wool v.
Pallito, No. 2017-131
2. Kirk Wool was convicted by jury in 1992 of two counts of
aggravated sexual assault. He is currently serving a sentence
of twenty-nine to seventy-three years for these and other
crimes. His minimum sentence expired in January 2011 and his
maximum sentence expires in December 2034.
3. In December 2013, Wool filed a complaint for injunctive
relief alleging that the Department violated the Ex Post
Facto Clause by classifying him as a Level C offender,
thereby denying him access to the programming necessary to be
eligible for furlough and parole. He later amended his
complaint to claim that the retroactive application of 13
V.S.A. § 5301(7), which categorized his offense as a
"listed crime," increased his punishment by
foreclosing the possibility of parole. In March 2017,
the trial court granted summary judgment to the Department,
ruling that this Court's decision in Chandler v.
Pallito, 2016 VT 104, 203 Vt. 482, 158 A.3d 296,
disposed of Wool's ex post facto claims. Wool appealed.
Carter v. Menard, 2017-274
4. Bernard Carter is serving a sentence of thirty-five years
to life for a 1992 aggravated sexual assault. Carter's
minimum sentence expired in May 2016. In 2012, the Department
determined that Carter had completed the paperwork necessary
to enter sex offender treatment programming with a projected
start date in May 2014. Had he begun treatment at that time,
he theoretically could have completed programming before his
minimum sentence expired. In 2013, however, the Department
designated Carter as a Level C offender. Since that time,
based upon its own directives, the Department has not offered
Carter the programming necessary to be eligible for furlough
or to be recommended for parole.
5. Carter had his first parole hearing in April 2016. The
Parole Board denied Carter's application, noting that
Carter was a high-risk sex offender who needed sex offender
treatment "to address risks in the community." To
improve his chances of being released on parole, the Board
stated that Carter should successfully complete sex offender
treatment programming and a period of time on conditional
reentry, remain free of disciplinary violations, and obtain
steady employment and an approved residence.
6. Carter filed a complaint for injunctive relief against the
Department in November 2015, alleging that the enactment and
application of 13 V.S.A. § 5301(7) and the
implementation of the Department's Level C directives
retroactively increased his sentence in violation of the Ex
Post Facto Clause. In June 2017, the trial court granted
summary judgment to the Department on the ground that
Carter's case was controlled by our decision in
Chandler v. Pallito, 2016 VT 104. Carter appealed.
We consolidated his and Wool's appeals for purposes of
oral argument and decision.
Standard of Review
7. We review summary judgment decisions de novo, using the
same standard as the trial court. In re Carter, 2004
VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. Summary judgment
is appropriate when, viewing the evidence in the light most
favorable to the nonmoving party, there exist no genuine
issues of ...