Fleming-Pancione v. Menard, No. 38-1-16 Wncv (Tomasi, J., May 6, 2016)
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VERMONT SUPERIOR COURT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 38-1-16 Wncv
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Shayne Fleming-Pancione, │
Plaintiff, │
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v. │
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Lisa Menard, Commissioner, │
Vermont Department of Corrections, │
Defendant. │
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Opinion and Order on Vt. R. Civ. P. 75 Petition
Mr. Shayne Fleming-Pancione seeks Vt. R. Civ. P. 75 review of the Vermont
Department of Corrections’ (DOC’s or the State’s) refusal to recalculate his sentence
in conformity with Serre v. Pallito, No. 45-2-15 Bncv, 2015 WL 5176790 (Vt. Super.
Ct. June 24, 2015). In short, he seeks substantial credit for time served on an
earlier out-of-state sentence applied to a later-imposed, “concurrent” Vermont
sentence for periods of custody long predating any that could possibly be connected
to the Vermont sentence. While the analysis in Serre appears to lead to the result
Plaintiff seeks, Serre represents a dramatic departure from binding Vermont
Supreme Court decisional law, which counsels to the contrary. The Court
respectfully disagrees with the Serre Court and sees no legal basis for the relief
sought in this case.1
1The parties have fully briefed the issues and the facts in the record are sufficient
and undisputed. While the parties’ filings are not strictly framed in compliance
1. Standard
Summary judgment is appropriate if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Vt. R. Civ. P. 56(a). “In determining whether a genuine issue of fact
exists, the nonmoving party receives the benefit of all reasonable doubts and
inferences.” Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996).
“Where . . . the moving party does not bear the burden of persuasion at trial, it may
satisfy its burden of production by indicating an absence of evidence in the record to
support the nonmoving party’s case. The nonmoving party then has the burden of
persuading the court there is a triable issue.” Mello v. Cohen, 168 Vt. 639, 639–40
(1998).
2. Undisputed Facts
The undisputed material facts are few. Plaintiff was sentenced in
Massachusetts in 2003 for a seven to ten year sentence. In 2010, he was released
on parole. In 2011, he was arrested on a Vermont warrant. In 2012, he was
sentenced on the Vermont charges to eight years to eight years and a day to serve,
concurrent to the not yet expired Massachusetts sentence, with credit for time
served as required by law.2 He was granted credit for time served from the date of
his 2011 arrest on the Vermont charges.
with Vt. R. Civ. P. 56, for purposes of analysis, the Court treats the filings in the
same manner as if the parties had more formally sought summary judgment.
2Plaintiff was also sentenced on a federal charge during the relevant time, but that
sentence has expired and is not relevant to the sentencing calculation issue in this
case.
2
Plaintiff’s argument in this case is that, because his Vermont sentence is
concurrent to the Massachusetts sentence, the two must first be aggregated as
though they were imposed simultaneously, and, then, he should receive credit for
time served in relation to any of the concurrent sentences as against the total
effective sentence. He claims a right to all time served on the Massachusetts
sentence (dating back to 2003) as against the later-imposed Vermont sentence,
including all such time before the two potentially overlapped in any way. He claims
that Vermont Supreme Court decisions and Serre require credit to be applied to
concurrent sentences in this manner even for periods in which those sentences were
not actually “concurrent.”
3. Analysis
Plaintiff asserts that the outcome he seeks in this case is required by State v.
Blondin, 164 Vt. 55 (1995), and State v. LeClair, 2013 VT 114, 195 Vt. 295. But, the
analysis that would support it, if extended to apply to out-of-state sentences,
appears only in one trial court decision, Serre.
In Serre, the plaintiff served time on his original Vermont sentence and was
subsequently released on probation. While on probation, he was charged with
obstruction of justice and several counts for violations of probation and conditions of
release. He was subsequently sentenced on the later charges, which were to run
concurrent to the original sentence, with credit for time served as required by law.
The DOC gave the plaintiff credit for being held 28 days prior to the second
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sentencing on all sentences (the time during which his custody, in effect, overlapped
with both sentences). It did not give him credit on the later sentence for the time
served on the original sentence before he began probation.
The Serre Court determined that, because all of the sentences were
concurrent, the DOC should have first calculated an effective sentence based on the
fiction that no time had been served on any sentence. It then should deduct all time
served on any sentence, no matter when it occurred in relation to any of the
component sentences, from that fictitious effective sentence. Thus, while there was
no conceivable way that time served on the earlier-imposed sentence prior to
probation overlapped with time served on the later-imposed sentence, this made no
difference. Serre stands for the proposition that concurrence should relate back to
the inception of the earliest imposed concurrent sentence no matter when the
component sentences were imposed or the time was served. This is what Plaintiff
wants the Court to do in this case, albeit with a twist: here, the earlier sentence was
imposed by a different sovereign.
Applying Serre, Plaintiff reasons that the eight-year minimum from his
Vermont sentence establishes his minimum effective sentence. The ten-year
maximum from his Massachusetts sentence establishes his maximum sentence. He
claims credit for all time served under any sentence since 2003 as against this new
effective sentence—which, according to this logic, presumably expired sometime in
2013.
4
Plaintiff’s argument produces absurd results, has no support in Vermont
Supreme Court decisions, and runs contrary to the thrust of them. Plaintiff’s
position would mean that his eight-year Vermont sentence that was imposed in
2012, on a charge filed in 2011, expired in 2013 due solely to time served that had
no conceivable relation to the imposition of that sentence, that charge, or his
custody status in relation to either. It would allow one paroled from a thirty year
sentence in year twenty nine, who is then sentenced to a new twenty-year sentence
made concurrent to the earlier sentence to serve no additional time whatsoever.
The later prosecution that resulted in a substantial sentence would become an
entirely moot point, subsumed by the waning days of his earlier sentence.
But, criminal sentences generally operate prospectively, not retroactively.
The potential exception is when the criminal defendant is in custody prior to the
imposition of the sentence. Under those circumstances, the defendant may be
entitled to credit for presentence custody as against a sentence that is imposed
later. Presentence credit is awarded, in part, to ensure that one who cannot afford
to post bail is in no worse position than one who can when the sentence actually is
imposed. See In re Lampman, 135 Vt. 226, 228 (1977). As the cases reflect, the
entitlement to and calculation of presentence credit can become considerably
complicated when there are multiple sentences, which may be consecutive or
concurrent to each other, particularly when they are imposed at different times.
The presentence credit statute that applies to Mr. Fleming-Pancione’s
Vermont sentence provides:
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The sentence of imprisonment of any person convicted of an offense
shall commence to run from the date on which the person is received at
the correctional facility for service of the sentence. The court shall give
the person credit toward service of his or her sentence for any days
spent in custody in connection with the offense for which sentence was
imposed.
13 V.S.A. § 7031(b) (2012) (emphasis added).3
As the Vermont Supreme Court has made clear, an overly literalistic
application of the “in connection with” expression, in some circumstances, produces
results at odds with the intent of this legislation. For example, a criminal
defendant may be held prior to the imposition of two sentences ordered to run
consecutively. Literally, he was held “in connection with” both of those sentences.
The statute does not, however, contemplate that he should receive “double”
presentence credit—credit for the same time served but applied to each consecutive
sentence. Blondin, 164 Vt. 59–61. In some cases, then, the analysis must turn
more on the intent of the statute rather than the precise language chosen by the
Legislature to express it.
That is the lesson of Blondin. There, the plaintiff was on parole when he was
charged with and detained on new crimes and the violation of parole. His parole
was revoked and he was given credit against the paroled sentence for his post-
parole detention. Id. at 56. He was later sentenced on the new crimes. The later-
imposed sentence was order to run consecutive to the prior sentence and he was
given no presentence credit. He already had received a “single” credit accounting
3Subsection 7031(b) was significantly amended in 2013 and no longer includes the
heavily litigated “in connection with” expression.
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for all time served. The Vermont Supreme Court refused to permit credit against
both sentences because doing so “would, in effect, make the underlying and new
sentences concurrent” for the relevant period of presentence custody. Id. It also
would undermine the sentencing judge’s ability to impose consecutive sentences,
provide incentives for criminal defendants and the State to “manipulate the timing
of judicial proceedings so as to shorten or lengthen the ultimate sentence served,”
and put the defendant who could not afford bail in a far better position than the one
who did. Id. at 57, 64. Thus, while one could plausibly argue that the disputed
presentence custody was “in connection with” each of the consecutive sentences, the
reasons a defendant may receive presentence credit supported a single credit only
for the time served.
The more broadly stated holding of Blondin is as follows:
[W]e hold that when a defendant is incarcerated based on conduct that
leads both to revocation of probation or parole and to conviction on new
charges, the time spent in jail before the second sentence is imposed
should be credited toward only the first sentence if the second sentence
is imposed consecutively, but toward both sentences if the second
sentence is imposed concurrently.
Id. at 61 (emphasis added). By “the time spent in jail before the second sentence is
imposed,” the Court is unmistakably referring to that period of time that arguably
was served “in connection with” both of the sentences—in Blondin, that period
began when the defendant was detained on the new charges. The Court certainly is
not referring to all time served on the first sentence regardless of whether it had
any connection to the second sentence.
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The principles of Blondin were applied in the circumstances of a concurrent
sentence in LeClair. There, the defendant was charged with burglary (the 2010
charge) and taken into custody. He was later released from custody on conditions
set by the Chittenden County Adult Drug Treatment Court (ADTC). LeClair, 2013
VT 114, ¶ 2, 195 Vt. at 296. If he successfully completed ADTC, he would have
received a completely suspended sentence and been immediately discharged from
probation. If he was terminated from ADTC, he would have been sentenced for
burglary within certain parameters. While participating in ADTC, he was charged
with several new crimes and was taken into custody. His participation in ADTC
then ended but only much later did the State formally move to terminate him from
ADTC. Id., 2013 VT 114, ¶ 6, 195 Vt. at 298.
He then was sentenced on the underlying 2010 charge to three to five years
with credit for time served (the first sentence). He was sentenced to two to five
years, with credit for time served, on the 2012 charges (the second sentence). The
second sentence was made concurrent to the first. The DOC gave the defendant
credit on the first sentence for the time he was held following the initial 2010 charge
but before he was released on ADTC conditions. It gave him credit on the second
sentence for the time served between his arrest on the new charges and the
imposition of both sentences. It did not give him credit on the first sentence for the
time served between his arrest on the new charges and the imposition of both
sentences. According to the State and the trial court, the defendant did not deserve
that credit because that time served was “in connection with” the 2012 sentence
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only (presumably because the State had not filed the motion to terminate him from
ADTC). Id., 2013 VT 114, ¶ 6, 195 Vt. at 298. The defendant countered that not
giving him credit on both sentences converted his concurrent sentences into
consecutive ones for the period of time at issue.
On appeal, the State attempted to defend the trial court’s ruling using a pre-
Blondin decision expounding on the “in connection with” expression in the
circumstance of consecutive sentences. The Court emphasized, “the crucial factor
under Blondin is whether the earlier and later sentences are to be served
concurrently or consecutively.” Id., 2013 VT 114, ¶ 9, 195 Vt. at 300. The Court
rejected the State’s argument that ADTC is materially different from probation or
parole in some way suggesting that Blondin should not apply, and then ruled as
follows:
As we noted in Blondin, denying or granting credit in
concurrent-sentence situations like the instant one based on when
revocation proceedings or resentencing was initiated or finalized would
be illogical and unfair, as it would result in credit being awarded
depending on factors beyond the court’s control, including how quickly
or slowly the State acted in prosecuting the defendant. Accordingly,
defendant is entitled to credit against each of the concurrent sentences
for the entire period he spent in jail between arrest and sentencing on
the additional charges.
Id., 2013 VT 114, ¶ 13, 195 Vt. at 301–02 (emphasis added, citation omitted).
Though the Court does not use the expression in that paragraph, in effect,
the time served that was “in connection with” both sentences spanned “the entire
period he spent in jail between arrest and sentencing on the additional charges,”
regardless of when the State chose to file its motion seeking termination of ADTC.
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Because the sentences were concurrent and the charged conduct was connected to
both matters, 2013 VT 114, ¶ 12, 195 Vt. at 301, that time served applied to both
concurrent sentences. If they had been consecutive, it would have applied to one
and not the other.
Neither Blondin nor LeClair provides any support for Plaintiff’s argument in
this case. In the reported cases, the Vermont Supreme Court has been careful to
ensure that credit for time served applies to all concurrent sentences when the time
served and those sentences can be fairly viewed as overlapping within the
contemplation of the version of Section 7031(b) that applies in this case. Where
there is not such linkage, it has been careful to avoid the unwarranted award of
double or multiple credits. See State v. Aubuchon, 2014 VT 12, ¶ 26, 195 Vt. 571,
585 (denying credit to furloughee for time spent in jail on later charges because
doing so would result in double credit due to the consecutive nature of the
sentences); Blondin, 164 Vt. at 61; Marden v. Walton, 142 Vt. 204, 209 (1982) (not
permitting double credit in consecutive sentence circumstances). Plaintiff’s instant
attempt at fabricating credit based solely on the concurrent nature of the sentences
-- without regard to whether the matters are otherwise connected -- has no merit.
While the concurrent nature of the sentences is, no doubt, a vital
consideration, it does not have the power to recreate history. The sentences in this
case were concurrent, but concurrent only from, at the very earliest, the initiation of
proceedings on the Vermont charges. The type of “retroactive” credit sought by
Plaintiff through invocation of the word “concurrent” has no parallel in Vermont
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case law. In Blondin, for example, the defendant had served a long sentence for
murder before being released on parole. His later criminal conduct led to a
revocation of parole and sentencing on new charges as well. When the Court
addressed the issue of credit, it focused on whether to afford defendant credit on
both offenses for the period between his arrest on new charges and the imposition of
sentence. It did not suggest that his new sentence could possibly have been
subsumed, in whole or part, by the twenty-four years he had already served on the
underlying murder conviction prior to his parole.
Indeed, this Court has previously considered and rejected an argument
nearly identical to that raised by Plaintiff. In Lafayette v. Pallito, No. 111-2-11
Wncv, Decision (Vt. Super. Ct. July 7, 2011) (copy attached), the defendant was on
probation for arson when he was convicted and sentenced for murder. His
probation was revoked and he was ordered to complete his arson sentence. The
murder sentence was ordered to run concurrent to the arson sentence. The
defendant sought credit on the murder sentence for all time served on the arson
sentence merely because the sentences were “concurrent.”
The Court was not persuaded. The “‘concurrent’ designation permitted Mr.
Lafayette to satisfy his murder and arson sentences at the same time in the years
following the second conviction.” Id. at 2 (emphasis added); see also In re Perry, 137
Vt. 168, 170 (1979) (“The words ‘consecutive’ and ‘concurrent’ are terms of art, used
to describe the relationship of two or more sentences which, at the same time, affect
an inmate’s imprisonment.” (emphasis added)). The Court determined that second
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sentence did not operate retroactively and that the defendant was not entitled to
credit for time served on the arson sentence predating custody in relation to the
murder charge.
Such a result only makes sense. In this case, based on the concurrent nature
of the subsequent sentence and the overlap between the two sentences, Plaintiff is
likely entitled to credit on his 2003 Massachusetts sentence for any time spent in
jail related to the 2012 Vermont conviction.4 He is not entitled to credit on the
Vermont sentence for all time previously served on the unrelated Massachusetts
conviction, however. Absent some express statement of intent by the sentencing
judge, it would defy expectations and logic to conclude that, by imposing a
concurrent sentence, the Court intended the two sentences to function as if they had
both actually been entered on the same date in 2003. To the extent Serre counsels a
different result, the Court respectfully disagrees with that analysis.5
In any event, Plaintiff’s argument fails for a more straightforward reason: it
runs directly contrary to State v. Coe, 150 Vt. 488 (1988). In Coe, the Supreme
Court adopted the “sole basis” rule to determine whether a person being held out of
4The Court expresses no opinion on whether the out-of-state nature of the original
sentence would militate against such a result.
5The Court does not believe the Defendant is bound by Serre under principles of
non-mutual, offensive collateral estoppel. See United States v. Mendoza, 464 U.S.
154, 159-62 (19184) (such estoppel is not available against the United States).
Though not all of the factors set out in Mendoza are applicable to the Vermont
setting, the Court believes it important to allow various trial courts to weigh in on
legal controversies and, ultimately, to allow the Vermont Supreme Court to decide
important legal issues. Strict imposition of estoppel against the State thwarts that
important process, and requires the State to appeal any adverse decision by a trial
court. While there may be instances where it would be appropriate to enforce non-
mutual, offensive collateral estoppel against the State, this is not one of them.
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state is entitled to presentence credit on a newly imposed Vermont sentence. Id. at
453. To receive credit, such a defendant “bears the burden of establishing that the
charge on which [the Vermont] sentence is imposed was the sole basis of the [out-of-
state] custody at issue.” Id. Plaintiff’s interpretation of the law would eliminate the
sole-basis rule and replace it with a no-basis rule -- the mere fact of a later-imposed
Vermont sentence running concurrent to an earlier imposed out-of-state sentence
alone would be sufficient to credit the Vermont sentence with all time served on the
extra-territorial sentence. That is not the law of Vermont. Since Plaintiff can make
no claim that the time he spent in Massachusetts custody from 2003 to 2011 had
any relation to the later Vermont charges, he is not entitled to credit under Coe.
Conclusion
For the foregoing reasons, summary judgment is granted to the State.
Dated this __ day of May, 2016 at Montpelier, Vermont.
_____________________________
Timothy B. Tomasi,
Superior Court Judge
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