Friday, October 30, 2015

Round Two: Vote for SCOV Law!

Thanks to you fine folks, we made it to round two of the best legal blogs contest we were nominated for back in July.

Now that we've made round two, we need all of you to step up again and give us another interwebs click.

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Sunday, August 23, 2015

Restitution Blues

State v. Vezina, 2015 VT 56

By Timothy Fair

The old adage goes, “Crime doesn't pay.” Well, as the petitioner learned here, not only doesn't it pay, it can actually get pretty expensive. As opposed to most appeals, petitioner does not dispute his guilt, or argue that the trial court failed to suppress some critical piece of evidence, nor does he challenge the competency of his attorney, the judge, the jury, or the sweet woman selling coffee on the first floor. Instead, the issue which brings us to the SCOV is cold, hard cash.

On Sept. 20, 2013, Mr. Vezina pled guilty to one count of petit larceny. The charge stemmed from the theft of seven pieces of musical equipment—from an avid collector of rare percussion instruments—the previous year. The plea agreement required, in part, that the defendant pay restitution to the owner of the stolen property. The agreement did not, however, specify the exact amount of restitution to be paid. A few things you need to understand before we go any farther: (a) In Vermont, statutes mandate that restitution be considered whenever a victim of a crime suffers a material loss—material loss is defined as any uninsured out-of-pocket monetary loss (often an insurance deductible), uninsured property loss, uninsured lost wages and uninsured medial expenses; and (b) SCOV case law has established that only easily ascertained and measured amounts are recoverable under the restitution statute. Damages that are not readily ascertainable, such as pain, trauma and emotional trauma are not recoverable as restitution. 

So, what happens when the State and a defendant disagree on the amount of restitution to be paid? A contested hearing!

Monday, August 17, 2015

Fair Enough?

In re Brown, 2015 VT 107

By Andrew Delaney

In civil procedure a Rule 11 violation generally means that a lawyer filed something of questionable (if any) merit. In criminal law, it generally means that the trial court screwed up a plea colloquy (a fancy-lawyer way to say “conversation”). So, both rules deal with screw-ups, though in vastly different areas. Civil procedure is a really, really important class in law school most lawyers-to-be sleep right through.

This case falls into the intersection of criminal and civil law, known as post-conviction-relief (PCR) land. It really has little to do with civil Rule 11, but it does have a lot to do with criminal Rule 11 and civil Rule 56. I know those aren’t proper citations and my law review brethren are probably losing their proverbial you-know-what right now, but I’m trying to make this easy to understand.

In 2003, Mr. Brown pled guilty to some heavy-duty offenses, including aggravated sexual assault of a minor and lewd and lascivious conduct with a minor. He agreed to “a five-to-fifteen-year split sentence, with two years to serve, as well as the imposition of sex-offender probation conditions.” The court accepted the guilty plea but held off on sentencing until a presentencing investigation (PSI) was completed.

D.O.C.N.O.V.O.P.

State v. Cavett, 2015 VT 91

By Jeffrey M. Messina

Most criminal defense attorneys get frustrated with the Department of Correction’s (DOC) apparently unfettered autonomy. Here's a case where the Vermont Supreme Court gives some power back to the trial courts.

This case comes on appeal of a superior court decision which concluded that Defendant violated a condition of his probation requiring him to complete the Vermont Treatment Program for Sexual Abusers (“VTPSA”). The trial court found Defendant failed to complete the program, though it refused to review the underlying disciplinary action taken by the DOC that resulted in removal from the program.

Defendant was charged with aggravated sexual assault and sentenced to a term of 5 to 15 years, all suspended except 4 to serve. At sentencing, the court imposed Condition 34, which states: "You shall participate fully in the [VTPSA] during the course of your suspended sentence. Failure to complete said program while incarcerated may result in a violation of your probation."

Good fences make good neighbors, unless only one person pays for them

Birchwood Land Co. Inc. v. Krizan, 2015 VT 37

By Jeffrey M. Messina

This case finds its way to SCOV's door on an appeal of a superior court decision denying plaintiff’s motion for attachment and granting defendant’s motion to dismiss for failure to state a claim.

Plaintiff Birchwood Land Company’s (“Birchwood”) complaint alleged that Defendant Krizan was unjustly enriched by Birchwood’s construction of an access road and other infrastructure to her property so she was able to develop the property without contributing to the cost of the improvements. We should all be so lucky.

Defendant purchased a vacant and landlocked parcel over 30 years ago. The deed to the parcel made reference to a recorded plat, so Defendant acquired an implied access easement over the portion of the adjacent parcel depicted on the plat (now owned by Birchwood) as a matter of law. (Until recently), this was the sole means of access to her property. Without frontage on a public road or access to utilities and other related infrastructure, the property was undevelopable and, importantly, in those 30 years of ownership, she made no effort to develop the property.

Clean-up Conundrum

In re Bilmar Team Cleaners, 2015 VT 10

By Jeffrey Messina

This case involves an appeal of the superior court’s decision to uphold the Burlington Board of Tax Appeals’(“Board”) appraisal of Taxpayer’s commercial property.

Taxpayer and her business partner purchased a commercial lot in 1987. In 1993, petroleum was discovered to be contaminating the property’s groundwater, likely due to leaky underground storage tanks from when the property was a gas station. In response, Taxpayer spent over $20,000 on various engineering studies and installed several wells to monitor the contamination. The Department of Environmental Conservation (DEC) requested an additional $10,000 of monitoring on the property before it would issue a “Site Management Activities Completed” designation for the property—indicating remediation efforts had come to a close. Instead, the property remains listed as an un-remediated petroleum pollution site due to an inability to pay for the additional monitoring or obtaining funds from the Vermont Petroleum Cleanup Fund (PCF). The PCF provides up to $990,000 in remediation costs once a property owner has paid the initial $10,000. Taxpayer did not believe the PCF was in her best interest, fearing that it would leave her liable for additional expenses if remediation costs exceeded the $990, 000 cap, or if the fund ran out of money.

As a result, Taxpayer held the position that the contamination rendered her property valueless, and failed to pay city property tax for many years.

Tuesday, August 11, 2015

Vote for SCOV Law!

From the shameless-self-promotion desk

SCOV Law has been nominated for this Best Legal Blogs contest. We work hard to keep you entertained, so if you would kindly click on the link and toss us a nomination, we'd appreciate it. Thanks!

Monday, August 10, 2015

Pythagoras’s Theorem After High School

State v. Wisowaty2015 VT 97

By Amy Davis

Exactly two years ago today, at 9:00 p.m., Wisowaty was riding his motorcycle on Dorset Street in South Burlington, in a 40 m.p.h. zone. Wisowaty was traveling southbound toward the Vermont National Country Club on his right. Peter Yee, driving a truck, prepared to turn left out of the country club to go north on Dorset Street. Yee testified that he looked both ways, but as he was halfway through the turn, he saw Wisowaty’s motorcycle headlight. Yee’s truck took up most of the southbound lane, so Wistowaty crossed into the northbound lane to avoid a collision. His attempt did not succeed and the two vehicles collided.

The State charged Wisowaty with operating a motor vehicle on a public highway in a negligent manner under this statute, and operating a motor vehicle at or above sixty miles per hour and at least thirty miles per hour in excess of the speed limit under this statute.

Wisowaty had a three-day bench trial with expert witness testimony, Wisowaty’s testimony, Yee’s testimony, and the State's and defendant's accident-reconstructionists' testimony. The judge found Wisowaty guilty on both charges, but did not rely entirely on either experts’ opinions. Instead, he took pieces of all of the data, did some of his own calculations, and decided that Wisowaty’s top speed was between 75 and 84 MPH. This mishmash factfinding is now challenged.

Sunday, August 9, 2015

Now, hold on just a second . . .

State v. Aiken, 2015 VT 99

By Andrew Delaney

Mr. Aiken was pulled over for speeding just before midnight. “The police sergeant observed that defendant’s eyes were bloodshot and watery, and he detected a faint odor of alcohol coming from inside defendant’s vehicle.” I like to imagine there’s a parrot at a police station somewhere going, “Brawk . . . bloodshot and watery . . . brawk . . . odor of alcohol.”

Anyway, Mr. Aiken admitted he’d consumed alcohol before driving. Preliminary breath and field sobriety tests indicated Mr. Aiken was on the tipsy side of legal, so he got a ride to the police barracks that he probably didn’t really want, but had to go on anyway. Mr. Aiken was told of his statutory right to counsel before taking the evidentiary breath test, which he thought sounded like a good idea. The sergeant called the on-call public defender, but didn’t get through. The sergeant was able to get the backup public defender on the line, handed the phone to Mr. Aiken, left the room, and turned off the audio on the recording.

Mr. Aiken tells it like this: he and the backup public defender exchanged pleasantries, after which the lawyer said “hold on” and placed Mr. Aiken on hold. Mr. Aiken then waited about ten minutes before he called the sergeant for help. The video feed seems to show Mr. Aiken not talking for about ten minutes.

Saturday, August 1, 2015

Requirements Revisited

State v. Provost, 2014 VT 86A

By Andrew Delaney

This is an amended opinion. If you notice a few similarities between this summary and last year’s, you’re probably not alone. The amended opinion issues based on Mr. Provost’s motion for reargument, but the end result is the same—the SCOV majority concludes that Mr. Provost violated his probation.

Among other things, Mr. Provost pled guilty to an aggravated domestic assault. One of his probation conditions was that he participate in the “Domestic Violence (DV) Solutions program.” His intake—which took a couple tries to get to because defendant canceled twice when he didn’t have the required fee—did not go well.

According to the intake counselor, Mr. Provost was belligerent from the get-go, starting with a hostile response when she called his name for the appointment. When asked about convictions, Mr. Provost accused her of going through his records. He refused to admit to committing the offense, and the intake counselor said she was going to terminate the interview. Mr. Provost then allegedly blocked the doorway. The intake counselor called for a probation officer (PO) to help. Then Mr. Provost began yelling at the PO.