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State v. Tobin

Supreme Court of Vermont

October 12, 2018

State of Vermont
Michael W. Tobin

          On Appeal from Superior Court, Bennington Unit, Criminal Division William D. Cohen, J.

          William D. Cohen, J. Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

          Allison N. Fulcher of Martin & Associates, Barre, and Michael Tobin, Pro Se, Camp Hill, Pennsylvania, for Defendant-Appellant.

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

          REIBER, C.J.

         ¶ 1. Defendant appeals his conviction and sentence for aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8). We affirm.

         ¶ 2. In October 2015, the State charged defendant with aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8) based on allegations that defendant had sexually abused his biological son while the child was under the age of thirteen. After a jury trial in December 2016, the jury found defendant guilty.

         ¶ 3. After a hearing in July 2017, the trial court sentenced defendant to serve fifteen to twenty-five years, with credit for time served. After defendant left the room, but before the hearing concluded, the State suggested to the court that 13 V.S.A. § 3271(b) required a maximum life sentence for a conviction under 13 V.S.A. § 3253(a)(8). The court retained the initial sentence and instructed the State to file a motion, and the State accordingly filed a motion on the next business day to correct the sentence pursuant to Vermont Rule of Criminal Procedure 35. The court held a hearing on the State's motion in August 2017, at which defendant and his counsel were present, but it did not make a decision at that time. In November 2017, the court issued an order correcting defendant's sentence to fifteen years to life. Defendant timely appeals.

         ¶ 4. On appeal, defendant was represented by counsel, who submitted a brief on defendant's behalf. We also granted defendant permission to submit a separate brief and to make oral argument. Defendant, on his own and through counsel, makes several arguments on appeal. We understand the arguments as follows: (1) there was insufficient evidence that the victim was under thirteen years old because the State provided no evidence of the victim's date of birth; (2) defendant was not properly informed of the charge; (3) there was a Brady violation because the State withheld recordings of witnesses' statements; (4) defendant's counsel provided ineffective assistance; (5) the State violated 3 V.S.A. § 129a; (6) the case was outside the statute of limitations; (7) his conviction violated the Double Jeopardy Clause and was untimely filed; and (8) the trial court committed plain error in correcting defendant's sentence when he was not present. We address each argument in turn.

         I. Insufficient Evidence

         ¶ 5. Defendant argues that the State produced insufficient evidence to prove the complainant was under thirteen years old, which is an element of the crime under 13 V.S.A. § 3253(a)(8), because the State did not establish the complainant's date of birth. To consider a challenge based on the sufficiency of the evidence, we review the State's evidence "in the light most favorable to the prosecution and excluding any modifying evidence," and we decide "whether that evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt." State v. Brochu, 2008 VT 21, ¶ 21, 183 Vt. 269, 949 A.2d 1035 (quotation omitted). Here the State presented evidence that the conduct underlying the criminal charge took place between January 2007 and March 2007 and that the complainant was seventeen years old in December 2016. The complainant also testified that he was six or seven years old when the assault occurred. This evidence was not contested and amply supports the conclusion that the complainant was under thirteen years old when the offending conduct occurred.

         II. Informed of Charge

         ¶ 6. Defendant argues that he was never properly informed of his charge. Perhaps confusingly, there are two similarly numbered sections in Title 13: § 3253(a)(8) and § 3253a(a)(8). Section 3253(a)(8) criminalizes sexual assault of a victim under thirteen years old by a person at least eighteen years old. Section 3253a(a)(8) criminalizes "repeated nonconsensual sexual acts as part of the same occurrence" or "as part of the actor's common scheme and plan" where the actor is at least eighteen years old and the victim is less than sixteen years old. Defendant suggests the State charged him with violating § 3253a(a)(8), rather than § 3253(a)(8), without properly informing him that it had done so. He also points out that § 3253a was not in effect until 2009.

         ¶ 7. Unquestionably, "[o]ne of the most fundamental principles of our criminal justice system is that a person charged with a crime must be notified of the charges against him." State v. Cadorette, 2003 VT 13, ¶ 4, 175 Vt. 268, 826 A.2d 101. That notice must be "official, on the record notice." Id. (requiring notice pursuant to V.R.Cr.P. 5, which requires appearance before judicial officer who will inform defendant of charge, and V.R.Cr.P. 10, which requires arraignment at which information is read to defendant, unless defendant waives reading). The record shows defendant was given a copy of the information and the supporting police affidavit, and he waived a reading of the information at his arraignment hearing in October 2015. The information by the State's attorney states that the State charged him with conduct "in violation of 13 V.S.A. § 3253(a)(8)." Defendant received proper notice of his charge. Additionally, given that the State charged defendant with violating § 3253(a)(8), defendant's argument that he was charged under an ex post facto law is ...

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