Tuesday, July 16, 2019

SCOVT declines VRAP 5 appeal from denial of pretrial motion to suppress where conditional pleas is available.

State v. Lyford, 2016 VT 118 (mem.) (overruled by State v. Wesley Haynes, Tristan Harris and Dennis Magoon,2019 VT 44)

The criminal division of the superior court granted defendant's motion for permission to file an interlocutory appeal, pursuant to Vermont Rule of Appellate Procedure 5(b), from the court's decision denying defendant's pretrial motion to suppress and dismiss, which alleged an illegal canine search. For the reasons explained below, we dismiss the appeal as improvidently granted. See V.R.A.P. 5(b)(8) ("On its own or the appellee's motion, the Supreme Court may at any time dismiss the appeal as improvidently granted.").

Since 1989, a defendant, with the approval of the trial court and the State, may enter a conditional guilty plea while reserving the right to appeal "the adverse determination of any specified pretrial motion." V.R.Cr.P. 11(a)(2); id. Reporter's Notes-1989 Amendment. Generally, this Court does not accept interlocutory appeals of decisions denying motions to suppress in criminal cases unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.

This is consistent with our general rule that "an appeal will not lie to review the denial of a pretrial motion to suppress evidence on the claim of illegal search and seizure." State v. Blondin, 128 Vt. 613, 615-16, 270 A.2d 165, 166 (1970) (citing 13 V.S.A. §§ 7401, 7403 in support of "the general rule that an appeal should not be permitted in criminal causes until a final verdict, adverse to the appellant, has been rendered in the trial court," and noting that 12 V.S.A. § 2386 "affords limited variance to the general rule by granting discretionary authority" to the superior court "to permit an appeal before final judgment for the determination of questions of law"); see also ABA Minimum Standards for Criminal Justice, Criminal Appeals, Standard 21-1.3(b)-(c) (stating that defendants generally should not be permitted to take interlocutory appeals in criminal cases and that conditional plea procedure should be established to allow review after final judgment of decisions on contested pretrial motions such as motions to suppress evidence).

Although we recognize that on occasion this Court has accepted interlocutory appeals from decisions denying motions to suppress, in this case defendant has not indicated that a conditional plea is unavailable or impracticable under the circumstances, and the trial court has not made any findings indicating that the criteria set forth in V.R.A.P. 5(b) have been met. Accordingly, we decline to accept the appeal.

Appeal dismissed as improvidently granted.

SCOVT reverses Secretary’s reversal of Human Services Board’s reversal of Department’s denial of petitioner’s request for developmental disability services , because the Board’s factual findings that had support in the record .

In re R.R., 2019 VT 31  [filed 4/26/2019]

SKOGLUND, J. The fundamental issue in this case is whether petitioner should be found eligible for developmental disability services. The Department of Disabilities, Aging and Independent Living (DAIL) denied petitioner’s request for services, finding him ineligible. The Human Services Board reversed DAIL’s decision. The Secretary of the Agency of Human Services reversed the Board’s decision and reinstated DAIL’s decision. This appeal followed.

Before us is the question of whether a standard error of measurement is properly applied to IQ scores used to qualify persons for developmental disability services.  The SEM for an IQ test is plus or minus five points. If the SEM is taken into account, then scores at or below 75 would qualify under the regulations as “a full scale score of 70 or below”

We conclude that the plain language of the applicable regulations incorporates the standard error of measurement of plus or minus five points for an IQ test and, therefore, petitioner’s IQ score of 75 combined with the other evidence in the case qualified him for services.

 The Secretary is limited in reviewing the Board’s factual findings and may “reverse or modify factual findings in a board decision only if ‘the board’s findings of fact lack any support in the record.’”  The Secretary rejected the Board’s finding that the 2007 score was the most reasonable and appropriate basis to determine petitioner’s eligibility,   concluding that there was “no clinical basis in the record” for the finding.  Because the Board’s assessment that petitioner’s 2007 score was the most accurate reflection of his level of functioning is supported by the record, the Secretary lacked authority to reverse or modify it.

We conclude that the Secretary lacked authority to reverse the Board’s factual findings and erred in interpreting the regulations. Therefore, we reverse the Secretary’s decision and remand for reinstatement of the Board’s decision

Reversed and remanded.

SCOVT vacates and dismisses charge of disorderly conduct.

State v. Treyez L. McEachin, 2019 VT 37 [filed 5/24/2019]

ROBINSON, J. Defendant Treyez McEachin was convicted of three charges pursuant to a conditional plea that preserved his right to appeal the denial of his motion to suppress and dismiss. Defendant was charged with disorderly conduct based on fighting or violent, tumultuous, or threatening behavior, as well as resisting arrest and simple assault on a police officer. He argues that because his conduct in walking toward a police officer was not disorderly, the disorderly-conduct charge should be dismissed. He contends that because the officer then wrongfully prolonged their encounter, all evidence of his subsequent conduct, including his assault of the officer well after he was taken into custody, should be suppressed, and the assault charge should be dismissed. We agree that the disorderly-conduct charge should be dismissed, and accordingly reverse the denial of the motion to dismiss that charge. We affirm the denial of the motion to suppress the evidence underlying the assault charge, and affirm that conviction.

A person commits the offense of disorderly conduct by “engag[ing] in fighting or in violent, tumultuous, or threatening behavior” with an “intent to cause public inconvenience or annoyance, or recklessly creat[ing] a risk thereof.” 13 V.S.A. § 1026(a)(1). The disorderly-conduct statute identifies four other bases for a disorderly-conduct charge that are not applicable here. See 13 V.S.A. § 1026(a)(2)-(5). 

On New Year’s Eve in 2016, four police officers were on foot patrol in Burlington when they received a report that a man was spitting on the window of a local bar. They went to investigate and found defendant outside the establishment.  The officers asked defendant to leave and he did, but. minutes later defendant came walking down the sidewalk back toward the bar. Officer Hodges testified that defendant “changed his trajectory so he was walking directly towards me.” He said defendant “was looking away from me . . . as if he was trying to . . . make it appear that he [wa]s not watching where he was going.” Defendant came within four feet of Officer Hodges, and Officer Hodges put his arm out and pushed defendant back. Defendant began yelling profanities. 

We conclude that the evidence, taken in the light most favorable to the State, does not tend to show beyond a reasonable doubt that defendant , by walking toward Officer Hodges, committed the offense of disorderly conduct through fighting or violent, tumultuous, or threatening behavior, Accordingly we reverse the trial court’s denial of defendant’s motion to dismiss.

We reject defendant’s argument that because the trial court found that the officers unlawfully prolonged their encounter with him by ordering him not to walk by the bar, it should have suppressed all subsequent evidence, including the evidence that he kicked a police officer later that evening, for which he has been charged with simple assault on a law-enforcement officer. We conclude that defendant’s action in kicking the officer is causally distinct from the officers’ actions in ordering him around the bar, and thus suppression is not warranted.

Defendant’s conviction of disorderly conduct is vacated and his motion to dismiss the disorderly-conduct charge is granted. Defendant’s conviction for resisting arrest is vacated and the charge is dismissed. The denial of defendant’s motion to suppress as it relates to the acts underlying the assault charge, and his conviction on that charge, are affirmed.

Impeachment of defendant who talks is not an impermissible comment on silence.

State v. Jeremy Fischer, 2019 VT 39 [filed 5/24/2019]

REIBER, C.J. Following a jury trial, defendant appeals his conviction of sexual assault of a minor in violation of 13 V.S.A. § 3252(c). Defendant argues the trial court violated his due process rights by allowing the State to impermissibly comment on his silence. We affirm.

Here defendant did not assert his right to silence. He spoke with Detective Tallmadge.. Under the facts of this case, commenting on defendant’s omissions does not raise the concerns of fundamental fairness and due process present in Doyle. The prosecution was free to impeach defendant based on what he said and failed to say.

Defendant argues that Ladue allows the State to comment on the omissions in defendant’s statements only when the statements made to the police are inconsistent with defendant’s testimony at trial. 2017 VT 20, ¶¶ 21-25. However, even accepting defendant’s view of Ladue, defendant offered one explanation of the events to Detective Tallmadge. Then, defendant offered a different explanation at trial. 

The fact that defendant offered two independent explanations at two distinct times raises the question of defendant’s credibility—a question that was fairly brought to the jury’s attention.

SCOVT dismisses parental rights appeal for lack of a final judgment.

In re G.B., Juvenile, 2019 VT 48 [Filed  07/12/2019]

REIBER, C.J. Juvenile G.B., born in June 2017, appeals the court’s order denying his petition to terminate mother’s parental rights and directing the Department for Children and Families (DCF) to prepare a new disposition plan for mother. We dismiss the appeal for lack of a final judgment.

The court concluded, that mother was ready, willing, and able to resume a constructive role in G.B.’s life and that she “should be given the opportunity over the next six months to reunify with G.B.” Therefore, the court denied the petition to terminate mother’s rights. The court explained that the case was “still at disposition” and directed DCF to prepare a new disposition plan in light of the court’s decision. ¶ 7. G.B. then filed a notice of appeal from the denial of the petition to terminate mother’s rights.

As a threshold question, we address mother’s motion to dismiss the appeal for lack of a final judgment. 

“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.” In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002). In juvenile proceedings, the statute provides that disposition orders are final orders. 33 V.S.A. § 5318(d); see id. § 5315(g) (providing that merits adjudication is not final order subject to appeal). This Court has explained that where the court terminates one parent’s rights, the order severs the legal relationship between that parent and the child and the order can be appealed as a final judgment, even if the rights of another parent are unresolved. In re A.D.T., 174 Vt. at 373-74, 817 A.2d at 24 (explaining that each petition to terminate “commences a new and separate proceeding”).

The order juvenile seeks to appeal in this case—the denial of the petition to terminate mother’s rights—is not final because it was neither a final judgment nor a disposition  order. The order denying termination of mother’s rights did not finally resolve the status of mother’s parental rights and therefore was not a final judgment. The family court specifically declined to issue a disposition order, indicating that the case was “still at disposition” and directing DCF to prepare a new case plan for G.B. Therefore, there was no disposition order to appeal. As we have explained, orders entered pending final disposition are “generally unappealable.” In re I.B., 2016 VT 70, ¶ 7, 202 Vt. 311, 149 A.3d 160.

SCOVT reverses denial of access to criminal court record and remands for joinder of additional parties and for further proceedings.

SKOGLUND, J. In this matter, Jacob Oblak petitioned the superior court for access to an affidavit of probable cause filed in a criminal case and was denied. He appeals to this Court and argues that Vermont Rule of Public Access to Court Records 6(b)(24), which excludes from public access records filed in a criminal proceeding when no probable cause has been found, was not intended “to transform traditionally public documents [including affidavits of probable cause] into secret ones.” He further argues that the lower court’s interpretation of Rule 6(b)(24) violates the First Amendment.

Because we find that the lower court should have considered his petition in light of the “Exceptions” provisions of Rule 7, we reverse and remand. V.R.P.A.C.R. 7(a)(3).

We remand this matter to the civil division of the superior court for a determination that circumstances exist that weigh in favor of or against access to the requested documents. The process contemplated by Rule 7(a) affords “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs . . . a right to notice and hearing before such order is issued.” Arguably, this would include the state’s attorney who filed the affidavit and W.R. and his counsel. We leave it to the court below to decide if other entities are necessary for resolution of this issue and to consider again petitioner’s First Amendment challenge as part of the analysis under Rule 7.

With proper parties present, the court will be able to assess whether “a specific showing of substantial harm to public or private interests” would overcome any right of access. In re Sealed Documents, 172 Vt. at 154, 772 A.2d at 521.

A defendant in a criminal action may seek interlocutory review under VRAP 5 without showing that a conditional guilty plea is not practicable or available before seeking such interlocutory review (overruling State v. Lyford, 2016 VT 118.),

State v.  Haynes, 2019 VT 44 [filed 6/28/2019]

PER CURIAM. Defendants move to reconsider this Court’s dismissal of their interlocutory appeals because defendants had not demonstrated why they could not seek review by entering a conditional guilty plea.

In January 2019, this Court dismissed the interlocutory appeals quoting State v. Lyford, 2016 VT 118, ¶ 2, 203 Vt. 648, 160 A.3d 317 (mem.), for the proposition that generally interlocutory appeals of motions to suppress in criminal cases are not granted “ ‘unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.’ ”

Defendants argue that they should not be required to enter a conditional guilty plea instead of seeking interlocutory review. We agree and conclude that a defendant is not required to demonstrate that a conditional guilty plea is not practicable or available before seeking interlocutory review. A defendant in a criminal action may seek interlocutory review if the requirements of Vermont Rule of Appellate Procedure 5 are met.

In 1971 the Legislature amended § 2386 into separate subdivisions relating to civil and criminal cases. Subdivision (a) regarding civil actions provided that appeals before final judgment for questions of law “may be taken in such manner and under such conditions as the supreme court may by rule provide.” 1971, No. 185, § 57. Subdivision (b) maintained the existing language of the statute, providing that the trial court in its discretion and before final judgment may permit an appeal to be taken by the respondent or the state in a criminal cause.

Following the statutory amendment and the promulgation of Appellate Rule 5, three main themes have been consistent in this Court’s decisions regarding interlocutory appeals by defendants in criminal cases. First, review of denials of motions to suppress in criminal cases are interlocutory and not reviewed as of right until after final judgment. Second, denials of motions to suppress usually do not meet the criteria in  Appellate Rule 5. Id. Third, this Court has the authority to dismiss interlocutory appeals, even when certified by the trial court.

In 1989, Rule 11 of the Vermont Rules of Criminal Procedure was amended to authorize conditional guilty pleas. See V.R.Cr.P. 11(a)(2). The conditional guilty plea was designed to allow defendants who were not eligible to appeal through interlocutory means to get appellate review of pretrial motions without having to go through an entire trial. The Court continued to both grant and deny interlocutory appeals filed by defendants in criminal actions without reference to the availability of a conditional guilty plea.

Upon consideration, we overrule Lyford to the extent that it holds that a defendant is precluded from seeking interlocutory appeal through Appellate Rule 5 if a conditional guilty plea is available. 

 In this case, because the criminal division did not explain the basis for granting interlocutory appeal, we dismiss the interlocutory appeals without prejudice to defendants refiling after the trial court issues a decision.

An interlocutory appeal is appropriate where the order is a “controlling question of law about which there exists substantial ground for difference of opinion” and “an immediate appeal may materially advance the termination of the litigation.” V.R.A.P. 5(b)(1)(A), (B). Regardless of whether the trial court has determined that a case is appropriate for interlocutory appeal, this Court retains authority to dismiss an appeal if the trial court abused its discretion in allowing it.

We review the trial court’s decision to grant interlocutory appeal for an abuse of discretion.. Here, we do not have an explanation of the reasons that the trial court exercised its discretion. Although the court has discretion to allow an interlocutory appeal, it must provide at least some basis for this Court to determine how that discretion was exercised. Therefore, we dismiss the appeals to allow the trial court to issue a new decision providing the grounds for its decision on the motion for interlocutory appeal.

Upon reconsideration, the interlocutory appeals are dismissed without prejudice to defendants refiling after the trial court issues a decision. 


The Court has recognized the importance of the doctrine of stare decisis, and has noted that, although the Court is not "slavish adherents" to this doctrine, it does not "lightly overturn recent precedent," especially where the precedent could be changed easily by legislation at any time O'Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.)

State v. Haynes overrules a three year old case. But this is not a record. See Whippie v. O'Connor, 2011 VT 97 (mem.)(cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is entitled to contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, overruling Massey v. Hrostek, 2009 VT 70, as based on an incorrect statement of prior law);Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, 108, 413 A.2d 1204, 1207 (1980) (order being appealed need not be specified in the notice of appeal, overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557, 409 A.2d 573 (1979) as overlooking V.R.A.P 3(a) (an appeal from a judgment preserves all claims of error in the resord))