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July and August (a Few Months Late)


Bad pun

Welp. There’s a lot of catchin’ up to do. 

We’ll do August a little bit scattered-like.

We’ll start with an entry order issued on August 9, 2022.


Defendant appeals the trial court’s order holding him without bail on attempted murder and felon-in-possession-of-a-firearm charges in connection with shots fired at University Mall, arguing that the evidence of guilt is not great. SCOV disagrees and affirms the trial court’s order, reasoning that the eyewitness ID, matching gun and bullets in the car registered to defendant’s girlfriend’s parents, and video footage all add up (while excluding modifying evidence) to support the trial court’s evidence-of-guilt-is-great finding. State v. Kirkland2022 VT 38 (mem.)


There are a couple August 12, 2022 three-justice entry orders in juvie cases listed on the “published” page, but they have the don’t-cite-this-anywhere-for-anything warning, so we’re going to skip those for now.   


On August 19, 2022, SCOV issued two opinions.


First is a land-use appeal dealing with an attempt to set aside a 2008 SCOV decision based on appellants’ previously (2008) rejected statute-of-limitations-as-to-violations argument because—as appellants argue below—a new and different decision would seem to imply their SOL argument in 2008 should have gone in their favor. The trial court rejected the attempt and SCOV affirms. SCOV reasons that this is abuse-of-discretion territory, the trial court didn’t abuse its discretion, and the 2008 decision was not “effectively overruled” by the new decision as appellants argue. Good try, though. In re Benoit Conversion Application2022 VT 39.


Second is another land-use opinion, though the statute-of-limitations argument works out for one of the parties in this case. I won’t go too deep into it, but this one’s about a duplex, whether it needed a variance, amendment of zoning ordinances, and unprosecuted permit violations. The bottom line is that the enviro-court found that the use of the duplex (or whatever you want to call it) wasn’t a violation and even if it was, the SOL barred enforcement. Neighbors appeal. SCOV affirms. In re Burns 12 Weston Street NOV2022 VT 37.


Closing out August, one decision issued on August 26, 2022. This one is about expungement. For the glossed-over-big-picture view, we’ll just say petitioner filed to expunge a bunch of stuff (convictions and dismissals) from his record on various grounds. Not having any luck to speak of at the superior court level, he appeals. SCOV affirms but also opines that some stuff might be expunge-able and remands for that. A few items of note: (1) conduct must be legalized and decriminalized to be eligible for expungement under one statutory provision and its interpretation; (2) in a broad sense, forward-looking language in a statute can provide SCOV with a basis to refuse to find retroactive intent (“within 60 days” of a triggering event being the key language here); and (3) there’s a distinction between a “dismissal with prejudice” and one without prejudice that effectively becomes a dismissal with prejudice when the SOL expires. Because the legislature threw in an eight-year period for expungement after a without-prejudice dismissal, that’s the controlling timeframe and whether or not the SOL is in play is moot. As a final point, the State’s objection to expungement is not an automatic bar to expungement; it just triggers a hearing. Though SCOV affirms the denials, there are a few potentially eligible-for-expungement things on petitioner’s record that would be eligible under changed circumstances. So even though there’s a two-years-to-wait-to-refile rule, SCOV instructs the trial courts to clean those up in the meantime. State v. E.C.2022 VT 40.


One opinion August 5 from the criminal-law world.


Well over a decade ago, defendant was helping himself to various items of personal property in storage units. He got caught, pleaded guilty, and the trial court sentenced him to eight months to two years. Based on the conviction, the court later held a restitution hearing that occurred over three separate days. Defendant and his attorney were present—defendant by phone because he was incarcerated out of state and participating in training—sometimes and sometimes not. The last day was a “not.” Ultimately, the court issued a restitution order just north of eleven grand.


Flash forward a dozen years and defendant moves to vacate the restitution order. The trial court denies the motion on grounds that the motion is untimely but also gives some other reasons why the motion doesn’t fly. On reconsideration, the trial court lands in the same spot. Defendant appeals.


On appeal, SCOV reasons that the applicable 90-days-to-correct-a-sentence (restitution is part of a sentence) deadline applies and is jurisdictional. The twelve-year wait was just too long. While things don’t look good for defendant, there was a clerical error in counting an ATV’s value in the restitution order that ought not have been counted. Because the parties agree that was an error, SCOV reverses and remands to correct the stipulated error, but affirms on everything else. State v. Therrien2022 VT 35      


The week of July 22 had two opinions and what we’ll call an “addendum.”


I wrote about State v. Sinquell-Gainey back in May. It was a bad decision then. It’s still bad. If you don’t remember, a majority of the Court (Justices Carroll and Eaton and specially assigned Justice Dooley) reasoned that the police can pull over anyone for pretty much everything over Justice Cohen’s and Chief Justice Reiber’s dissent. The only thing different . . . the only thing new . . . is that there’s a few paragraphs at the end about how defendants’ motion to reargue doesn’t fly because, according to SCOV, the whole motion to reargue is about former Justice Dooley’s impartiality and that’s just not a good argument. State v. Sinquell-Gainey2022 VT 19.


July 22 opinion one is about municipal bonds and drinking-water-system remediation and—I gotta be honest here—I started glazing over once I figured out what it was about. Lemme try to regroup. Plaintiff was annoyed by—and I’m only guessing here—charges for a water hookup he didn’t use and some open meeting law violations surrounding the vote, that got the bond, that created the unusable-water-hookup situation. The trial court found that there were violations, but those violations were cured. Plaintiff appeals. SCOV affirms, reasoning—like the trial court—that the violations were cured and plaintiff isn’t entitled to attorney’s fees or anything else. Soares v. Barnet Fire District # 22022 VT 34.  


July 22 opinion two runs 50 pages all in. Here are the highlights. There is an old road. That road is in Vernon. I quote: “The Township of Hinsdale was established in 1753, stretching over both sides of the Connecticut River. The town was later divided between New Hampshire and Vermont with the river as a boundary. In 1802, the portion of the town on the Vermont side of the river was renamed Vernon . . . .” And thus begins a saga that ultimately leads to a knock-down, drag-out fight between neighbors over whether one of them can use Stebbins Road—if it really is a road. In this chapter, the trial court grants partial summary judgment to the wanna-use-the-road neighbor and the Town of Vernon (I could explain how the Town of Vernon is involved, but then this will be way longer than it has to be) allowing, more or less, access through Stebbins Road. Other neighbor appeals. And SCOV affirms, but not without a titillating romp through the “requirements under the 1797 Act to establish a public road in 1801” and more 1800s law than you can shake a stick at. Or would want to. Seriously, though, as far as legal history and laying out roads goes, it’s good stuff.  Specially assigned Justice Dooley dissents. He’d roll it all back, reverse the 2018 decision (hyperlinked above) and affirm the trial court’s initial order. “The majority has revisited the wrong decision and achieved injustice” is how he puts it. In Justice Dooley’s view, the 2018 opinion was fundamentally erroneous and never should have been set forth to wreak the havoc it did. In case you’re wondering, Justice Dooley did not participate in the 2018 decision he wants to reverse. Daiello v. Town of Vernon2022 VT 32.       


July 8 had one decision. The crux of it is that the facts admitted to pursuant to a guilty plea to possession of child pornography can sustain a DCF substantiation of child abuse. DCF doesn’t necessarily need to establish identifiable child victims or a caretaking relationship between petitioner and each child. Procedurally, DCF substantiated M.V. after he pled guilty to two counts of possession of child pornography. He appealed to the Human Services Board (HSB). The HSB granted summary judgment to DCF on the basis that the underlying offense was sufficient to establish substantiation as a matter of law. On appeal, SCOV affirms, reasoning that there is no requirement that the child abuse—in this case the child pornography—be tied to an identifiable victim with whom petitioner has a caretaking relationship. There’s a good discussion about collateral estoppel if you run into that issue elsewhere. In re M.V.2022 VT 31.


July 15 also had one decision. Lawyers all know to be careful when drafting wills and such for clients, right? In this case, respondent completed estate-planning services for a client. It was a bit convoluted and ultimately led to a conflict-ridden situation with respondent acting as trustee for a trust and moving money around in some ways that didn’t look so innocent to the professional responsibility board. Documents were not filed or recorded. Money was not properly accounted for. An estate wasn’t opened. Respondent told a potential beneficiary that there was no estate. The best way I can sum it up is a “ballooning bad idea.” In addition to not notifying potential beneficiaries, respondent also went ahead and sold real property below market value to a buddy’s wife (though he did have some reasons why). In the end, the PRB found several conflict-of-interest violations and imposed a three-month suspension. SCOV takes up the matter on its own and, in a per curiam opinion, says, “Okay. The board got the violations right, but this is more serious than a three-month-suspension situation, so we’re tacking on a couple more months.” Estate planning is tricky enough under arms-length principles—this case illustrates why the arms-length rules exist. In re Kulig2022 VT 33.      

I don’t know about you, but sometimes, I’ll click on clickbait. It can be funny and slightly terrifying. For example, on Thursday, I read an article about a “viral TikTok” put out by an Australian woman about her mind being blown when she figured out why we use 1st, 2nd, 3rd, etc. Yeah. So. There, as they say, is that.  


Two opinions July 1st. First up we have a probation violation appeal. Defendant is supposed to stay off the interwebs because he pled guilty to a few sex crimes. While on probation, he sent some, uh, intimate selfies to three different people who did not ask to see such images. And so, a probation-violation proceeding ensued. After the initial complaint was filed, defendant’s probation officer added two more violations based on defendant’s continued possession and use of internet-capable devices. The trial court found defendant had violated his probation for several reasons, including the above and a prohibition on “residing where he would have access to computers or other devices with access to the internet.” The court sentenced defendant to three years to life. On appeal, SCOV affirms the findings except as to the residency violation. SCOV reverses on that point because defendant wasn’t ever charged with violating that condition. Back to the trial court for resentencing based on the legit violations. State v. Burnett2022 VT 30.   


Also from July 1, we have a thing about a thing. Our State Auditor wanted access to OneCare Accountable Care Organization, LLC’s (OneCare) payroll records because OneCare made a significant hike in its payroll budget and OneCare has a contract with the State. It also has a $1.2B+ budget—to put things in perspective. The State Auditor filed a complaint. OneCare filed a motion to dismiss. The trial court granted the motion to dismiss. On appeal, SCOV affirms, reasoning—like the trial court—that the State Auditor lacks statutory or contractual authority to demand the payroll records. Hoffer v. OneCare Accountable Care Organization, LLC2022 VT 29.     


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