State v. Joseph Leland Bruyette

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2021 VT 43

No. 2020-166

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Rutland Unit,
Criminal Division

Joseph Leland Bruyette December Term, 2020

David R. Fenster, J.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Robert C. Menzel, Jr.,
Assistant Attorney General, Waterbury, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Annie Manhardt, Prisoners’ Rights Office,
Montpelier, for Defendant-Appellant.

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

¶ 1. REIBER, C.J. Defendant Joseph Bruyette appeals the criminal division’s order

compelling him to provide a DNA sample for inclusion in the Vermont DNA database. He argues

that 20 V.S.A. § 1933(b) excuses him from providing a DNA sample because he has previously

provided a sample, and that this issue is properly considered at a sampling-compulsion hearing.

We affirm.

¶ 2. Defendant was convicted of one count of burglary and three counts of sexual assault

in 1990. He has been continuously incarcerated in the custody of the Department of Corrections

(DOC) since 1987. For most of this time, defendant has been held in facilities out of state.
 ¶ 3. In 1998, the Vermont Legislature passed a law creating a state DNA database.

1997, No. 160 (Adj. Sess.). The statute requires certain persons to submit a DNA sample for

inclusion in the database, including “a person who was convicted in a court in this State of a

designated crime prior to April 29, 1998 and, after such date, is . . . in the custody of the

Commissioner of Corrections [serving a term of imprisonment].” 20 V.S.A. § 1933(a)(2)(A). The

statutory definition of “designated crime” includes any felony and “any crime for which a person

is required to register as a sex offender” under Vermont law. Id. § 1932(12)(A), (C). Defendant’s

convictions qualify as designated crimes, so the statute requires him to submit a DNA sample. See

id. § 1933(a)(2)(A).

¶ 4. DOC has no record of defendant ever providing a DNA sample for the Vermont

DNA database. DOC records reflect that defendant consistently refused to provide a sample each

year from 2005 through 2017. Most recently, defendant refused DOC’s request that he provide a

DNA sample in 2019. This time, DOC asked him to sign a refusal form, and defendant refused to

sign the form.

¶ 5. Consequently, the State filed a motion in the criminal division to compel defendant

to provide a DNA sample. See id. § 1935(a) (requiring DOC to file motion to compel when person

obligated to provide DNA sample refuses to provide one). Defendant opposed the motion based

on his belief that he had already provided three DNA samples while in DOC custody and contended

that the statute relieves him from having to submit another sample. See id. § 1933(b) (“A person

required to submit a DNA sample who is serving a sentence in a correctional facility shall have

his or her DNA samples collected or taken . . . if the person has not previously submitted a DNA

sample.”). He sought a hearing to present evidence of his prior DNA submissions. See id.

§ 1935(b) (entitling person who refuses to provide DNA sample to hearing).

¶ 6. The criminal division held a hearing to determine whether defendant was required

to submit a DNA sample. The State first called Rebekah Wilkins, a forensic chemist with the

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Vermont Forensic Laboratory who administers Vermont’s DNA database for the Vermont

Department of Public Safety (DPS). She explained that Vermont’s database is a state-level

database, meaning that it hosts DNA samples collected by the State and searches them against

state-level unsolved crimes to match or exclude the profile. She testified that she also uploads

some Vermont DNA samples to the federal-level database, where samples are searched against

unsolved crimes across the country. However, she could not see what other states have uploaded

to the federal level or search another state’s system. She explained that each state collects DNA

and operates its own DNA database separately, following its own state law. She testified that DPS

does not consider DNA collected by another state as satisfying the Vermont collection requirement

and that DPS has “never accepted a DNA sample collected using another state’s collection

processing kit.” To collect a DNA sample from a Vermont inmate who is incarcerated in an out-

of-state facility, DPS provides a Vermont sample-collection card for the sample to be collected

and returned, and then uploaded to the Vermont database.

¶ 7. The State next called Cheryl Elovirta, a DOC employee who works as a liaison to

DPS to ensure proper collection of DNA samples. She explained that when DOC collects DNA

samples, it uses the sample-collection cards provided by DPS. She testified that DOC does not

consider another state’s collection of DNA for its own database as compliant with Vermont’s

DNA-collection statute because the statute requires DOC to provide the DNA, and the DPS card

ensures that the sample is collected correctly. She confirmed that DOC cannot access another

state’s DNA database—and in fact, cannot access the Vermont DNA database.

¶ 8. Defendant testified that while incarcerated in DOC custody, he provided DNA

samples on three occasions. He recalled that he first provided a DNA sample in Minnesota in 1998

and said that his caseworker told him that Vermont had just created a DNA database and requested

his DNA. Next, he recalled providing a DNA sample in Florida when he was transferred to a

facility there. Finally, he recalled providing a DNA sample in Kentucky in 2004, and that a

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caseworker told him that Vermont officials were collecting the sample. Defendant testified that

about a week after providing the Kentucky sample, he heard a rumor that Vermont officials had

made an error in collection that spoiled the samples and planned to recollect samples the following

week, but no one came back. Then, he recalled that a caseworker asked to collect a DNA sample

in Kentucky in 2005, and defendant refused because he had previously provided three samples.

Subsequently, he said that he had been asked to provide a DNA sample “just about every single

year” and continually refused.

¶ 9. Defendant submitted an exhibit from the Florida Department of Law Enforcement

documenting its request for defendant’s DNA. He contended that, under Florida law, DOC and

DPS would be entitled to receive Florida’s sample of his DNA, but neither department ever

requested it. He then offered to provide another DNA sample if DOC first sought to receive

defendant’s sample from Florida. At the close of the hearing, the court gave the parties an

opportunity to negotiate a resolution and gave the State an opportunity to investigate the samples

that defendant allegedly provided. Additionally, the court requested supplemental briefing on the

proper interpretation of 20 V.S.A. § 1933(b).

¶ 10. After the hearing, the State submitted a memorandum with affidavits from

witnesses Wilkins and Elovirta regarding their investigations into defendant’s previously

submitted DNA samples. Wilkins averred that she contacted the administrator of Florida’s DNA

database, who confirmed that the Florida database has defendant’s DNA and that the sample was

collected in accordance with Florida law, but said that she could not share it with Vermont because

Florida does not share database samples. Next, Elovirta explained that she reviewed defendant’s

case file and the affidavit of the caseworker who attempted to collect defendant’s DNA in

Kentucky in 2005. She stated that the caseworker’s affidavit mentioned an alleged collection in

Minnesota, but she determined that the Minnesota Department of Corrections had no record of a

sample being taken from defendant. The caseworker’s affidavit did not mention a prior collection

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in Kentucky, and there was no record of any DNA collection in Kentucky that was spoiled or lost.

Accordingly, the State argued that defendant had failed to provide a DNA sample to the Vermont

database, even if he had provided samples to other states, and that the court should defer to DOC

and DPS’s interpretation that a sample submitted to another state cannot be accepted into the

Vermont database and thus does not satisfy Vermont’s statutory requirements.

¶ 11. Defendant likewise submitted a memorandum that included documentation from

the Minnesota Department of Corrections demonstrating that he provided a DNA sample, pursuant

to Minnesota law, in 1994. Based on this DNA sample and the sample provided to Florida in 2001,

both taken while he was in DOC custody, he argued that under the plain language of § 1933(b), he

was not required to provide another DNA sample because he had previously submitted a sample.

¶ 12. The criminal division granted the State’s motion to compel defendant to submit a

DNA sample. The court found that defendant provided a DNA sample to the State of Florida in

2001 but found that the sample was not taken for submission to the Vermont DNA database. The

court also found that defendant provided a DNA sample to Minnesota in 1998 and another sample

to Kentucky in 2004. While defendant testified that these samples were for the Vermont DNA

database, the court explained that there was inconclusive evidence to find that either sample was

taken for submission to the Vermont database.

¶ 13. The court concluded that under 20 V.S.A. § 1935, the Legislature limited the scope

of the issues at a DNA sampling-compulsion hearing to whether the person was convicted of a

designated crime, pursuant to § 1933(a), or whether the DNA-database statutes were

unconstitutional. See State v. Ritter, 2008 VT 72, ¶ 6, 184 Vt. 565, 956 A.2d 1141 (mem.) (“The

only challenges defendant might have raised at the sampling-compulsion hearing were that he had

not been convicted of a designated crime . . . or that the DNA-database statutes are constitutionally

infirm.”). The court concluded that defendant had been convicted of a designated crime and

remained in DOC custody, so defendant was required to submit a DNA sample under § 1933(a)(2).

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Because defendant was required to submit a sample and had refused to provide one, the court

determined that the State was entitled to an order compelling defendant to provide a DNA sample

under § 1935(c).

¶ 14. The court next addressed defendant’s argument that, under § 1933(b), he need not

provide a DNA sample because he had previously submitted a sample. The court explained that

defendant was a person required to submit a DNA sample under the plain language of § 1933(a),

and § 1933(b) did not change that result. Instead, § 1933(b) merely explains how a sample will be

collected when a person is in a correctional facility. The court further explained that the DNA

statute draws a distinction between the collection of a sample and the submission of a sample, and

the disputed language in § 1933(b) requires that “the person has not previously submitted a DNA

sample.” 20 V.S.A. § 1933(b) (emphasis added). Thus, the court concluded that to comply with

the statute, defendant’s DNA sample needed to be submitted to the Vermont database, and while

defendant’s DNA sample may have been collected previously, it had not been submitted to the

Vermont DNA database as required.

¶ 15. The court reasoned that its conclusion was consistent with the purpose of the

statute. Section 1931 adopts a state policy of assisting criminal justice and law enforcement

agencies to solve crimes by matching or excluding DNA in the state database against DNA linked

to an unsolved crime, and to help identify missing persons. Id. § 1931. If defects in the collection

process that prevented the DNA sample from being submitted to the Vermont DNA database

relieved a person from inclusion in the database, this outcome would frustrate the purpose of the

statute. Further, the court reasoned that if the Legislature had intended § 1933(b) to exempt a

person from inclusion in the database after one defective collection, it would have made that an

issue for the compulsion hearing. Lastly, the court noted that its interpretation was consistent with

DOC’s interpretation, which is entitled to deference, and defendant failed to show why DOC’s

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interpretation was arbitrary or capricious. The court ordered defendant to provide a DNA sample

to DOC. Defendant has since provided a sample.

¶ 16. Defendant appealed, arguing that under the plain language of 20 V.S.A. § 1933(b),

a person who has already submitted a DNA sample while in DOC custody is not required to submit

another, regardless of whether the sample is in the Vermont DNA database. He also argues that

this issue is properly considered at a sampling-compulsion hearing under § 1935. Although he has

already provided a DNA sample, he asks this Court to order that his information be expunged from

the Vermont DNA database under § 1935(e).

¶ 17. Statutory interpretation is a question of law which we review de novo. State v.

Eldredge, 2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816. Our goal is to give effect to the

Legislature’s intent, “so we first look at the plain, ordinary meaning of the statute.” Id. If the

language is clear, we apply the statute according to its plain meaning. Id.

I. 20 V.S.A. § 1933

¶ 18. We first address defendant’s argument that § 1933(b) relieves incarcerated people

in DOC custody from being required to submit more than one DNA sample. The statute provides,

in relevant part:

A person required to submit a DNA sample who is serving a
sentence in a correctional facility shall have his or her DNA samples
collected or taken at the receiving correctional facility, or at a place
and time designated by the Commissioner of Corrections or by a
court, if the person has not previously submitted a DNA sample.

20 V.S.A. § 1933(b) (emphasis added). The Legislature added the disputed language to § 1933(b)

in a 2009 amendment. See 2009, No. 1, § 21.1

1
The 2009 amendment also added the language “if the person has not previously submitted
a DNA sample in connection with the designated crime for which he or she is serving the
sentence,” to § 1933(c), which is not at issue in this appeal.
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 ¶ 19. Defendant argues that the plain language of § 1933(b) is clear: an incarcerated

person is only required to submit a DNA sample if he or she has not previously submitted one.

DOC urges us to adopt the reasoning of the criminal division and conclude that the DNA

subchapter distinguishes between “collection” and “submission,” and the term “submit” requires

that the sample be submitted to the Vermont DNA database. DOC contends that it has interpreted

the statute to require submission to the Vermont DNA database and argues that we should defer to

the department’s interpretation. See In re Porter, 2012 VT 97, ¶ 8, 192 Vt. 601, 70 A.3d 915 (“We

defer to an administrative agency’s interpretation of statutory provisions that are within its

particular area of expertise.” (quotation omitted)).

¶ 20. Under defendant’s interpretation, DNA provided to another jurisdiction, for any

reason, would exempt a person from the statutory requirement to provide a DNA sample to the

Vermont database. Likewise, if an issue occurred in the collection or submission of a DNA sample

that prevented the State from inputting the sample into the Vermont DNA database, even at no

fault of the State’s, the person would be exempted from inclusion. This interpretation conflicts

with the explicit purpose of the statute. If any submission to another jurisdiction or any defect in

the collection or submission process, regardless of the cause, relieved a person from the obligation

to provide a DNA sample to the Vermont database, the statute would inhibit the effective use of

the DNA database. See 20 V.S.A. § 1931 (stating that policy of DNA statute is to assist “law

enforcement agencies in the identification, detection, or exclusion of individuals who are subjects

of the investigation or prosecution of crimes” and to “identify missing persons”). We will not

interpret the statute in a manner that counters the purpose of the statute and renders it ineffective.

See Town of Killington v. State, 172 Vt. 182, 189, 776 A.2d 395, 401 (2001) (“[W]e will not

enforce the common and ordinary meaning of statutory language if doing so would render the

statute ineffective or lead to irrational results.”).

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 ¶ 21. But on the other hand, the statutory language belies DOC’s argument that the

Legislature used the terms “collect” and “submit” to refer to specific actions and “submit” means

submission to the Vermont DNA database. In § 1933, the statute exclusively uses the term

“submit” when explaining who is required to provide a DNA sample and where they are required

to do so. See 20 V.S.A. § 1933. But in § 1935, which outlines the procedure applicable when a

person refuses to provide a DNA sample, the statute exclusively uses the term “provide,” even

when referring to required persons under § 1933. See id. § 1935. The interchangeable uses of two

different terms shows that the statute does not use the term “submit” as a term of art to mean

submission to the Vermont DNA database.

¶ 22. Nor would such an interpretation of the term “submit” make sense. Section 1933

requires certain persons to submit a DNA sample, but as defendant notes, once an incarcerated

person provides a sample to DOC, the person has no control over how that sample ultimately ends

up in the Vermont DNA database. Instead, DOC is responsible for “collect[ing] and submit[ting]

DNA samples to the [Vermont Forensic] Laboratory” so that DPS can receive and process the

samples into the database. DNA Database Unit Operating Policy and Procedures § III(A)-(B),

Code of Vt. Rules 28 060 001 [hereinafter DPS DNA Database Procedures],

http://www.lexisnexis.com/hottopics/codeofvtrules. Construing § 1933 to require an incarcerated

person to ensure that the person’s DNA sample is properly included in the Vermont DNA database

would create an absurd result. See State v. Tuma, 2013 VT 70, ¶ 8, 194 Vt. 345, 79 A.3d 883

(explaining that “we do not construe statutes in such a way as to lead to absurd or irrational results”

(quotation omitted)).

¶ 23. DOC’s interpretation of the statute would further mean that a person could be

required to furnish as many samples as needed to ensure that the sample is properly submitted.

This Court has held that “[d]efendants, like the rest of us, have an expectation of privacy in their

oral cavity and in the information contained in their DNA.” State v. Medina, 2014 VT 69, ¶ 13,

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197 Vt. 63, 102 A.3d 661. We have recognized that “[t]he initial taking of the DNA sample” and

the “subsequent analysis, storage, and searching of the DNA profile” are independent intrusions

under Article 11 of the Vermont Constitution. State v. Martin, 2008 VT 53, ¶ 14, 184 Vt. 23, 955

A.2d 1144. An interpretation that could compel a person to repeatedly provide DNA samples

raises constitutional concerns, and “[w]e generally construe statutes to avoid constitutional

difficulties, if possible.” State v. Berard, 2019 VT 65, ¶ 16, 211 Vt. 39, 220 A.3d 759 (quotation

omitted).

¶ 24. But we need not defer to DOC’s interpretation because § 1933 is not ambiguous.

See Clayton v. J.C. Penney Corp., 2017 VT 87, ¶ 17, 206 Vt. 28, 177 A.3d 522 (explaining that

Court defers to agency interpretation when statutory language is “silent or ambiguous”). The

statute provides that a DNA sample from an incarcerated person shall be “collected or taken at the

receiving correctional facility, or at a place and time designated by the Commissioner of

Corrections or by a court, if the person has not previously submitted a DNA sample.” 20 V.S.A.

§ 1933(b). The plain language clearly contemplates that the DNA sample is to be taken by or at

the behest of DOC, and not any other agency or jurisdiction, because of the person’s status as an

inmate committed to DOC custody. A person who has a DNA sample collected by another agency

or jurisdiction is not exempt from this requirement if DOC has not previously collected a sample

from that person. Accordingly, we conclude that § 1933(b) entitles DOC to collect the DNA

sample of all incarcerated persons required to provide one and to collect one sample as a matter of

course. 2

2
We recognize that there may be some circumstances in which DOC collects a DNA
sample and fails to submit the sample to the Vermont DNA database for reasons that are not due
to DOC’s negligence. Given the clear purpose announced in § 1931, it is unlikely that the
Legislature intended to foreclose DOC from seeking another DNA sample after one defective
attempt in all circumstances. See Delta Psi Fraternity v. City of Burlington, 2008 VT 129, ¶ 7,
185 Vt. 129, 969 A.2d 54 (explaining that when plain meaning of statute conflicts with other
expressions of legislative intent or creates absurd result, “the intent must prevail” (quotation
omitted)). Because the number of attempts which the State may make to obtain a subsequent DNA
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 ¶ 25. Further, the plain language of the statute does not distinguish between persons in

the custody of DOC who are incarcerated in correctional facilities in Vermont and those who are

incarcerated in out-of-state facilities. The statute authorizes DOC to coordinate collection of a

DNA sample with an out-of-state receiving facility or to designate a time and place for collection

out of state. As such, the statutory limit on the number of samples an incarcerated person must

provide to DOC applies regardless of where the person is housed. Cf. Nichols v. Hoffman, 2010

VT 36, ¶ 12, 188 Vt. 1, 998 A.2d 1040 (concluding that persons incarcerated by DOC in out-of-

state facilities were entitled to statutory right to access to debit calling cards under Vermont law).

¶ 26. This conclusion is consistent with both the purpose of the statute and the protections

provided therein. When DOC collects or requests a DNA sample, DOC is responsible for

following the proper procedures so that the sample can be submitted to DPS for inclusion in the

Vermont DNA database. See DPS DNA Database Procedures, § III (laying out procedure for

receipt and processing of DNA samples). By the same token, DOC assumes the risk of failure to

properly collect and submit the sample. This ensures that the Vermont DNA database functions

effectively in accordance with the purpose outlined in § 1931, and at the same time, that DOC

complies with the statutory protections for incarcerated persons.

¶ 27. Here, however, the record contains insufficient evidence to conclude that

defendant’s prior DNA samples were collected by or at the behest of DOC. The trial court found

that DOC had no record of defendant ever providing a DNA sample for the Vermont DNA

database. As to the DNA sample that defendant provided to Florida in 2001, defendant submitted

documentation showing that the sample was collected by the Florida Department of Law

Enforcement, and DPS confirmed that Florida has defendant’s DNA in its state database and

collected the sample under Florida law. The record thus supports the trial court’s finding that the

sample after a sample has been taken by or at the behest of DOC is not at issue in this appeal, we
do not reach the question.
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Florida sample was not taken for submission to the Vermont DNA database. See State v. Richard,

2016 VT 75, ¶ 8, 202 Vt. 519, 150 A.3d 1093 (providing that Court reviews factual findings for

clear error and will uphold findings “if any reasonable and credible evidence in the record supports

them”).

¶ 28. As to defendant’s other DNA samples, he submitted documentation showing that

he provided a sample to Minnesota in 1994 under Minnesota law,3 and testified that he provided a

sample to Kentucky in 2004. Although defendant said that he was told that these samples were

for the Vermont database, the collection in Minnesota predated the enactment of the Vermont

DNA statute in 1998. See 1997, No. 160 (Adj. Sess.), § 7 (creating Vermont DNA database and

DNA collection requirements, effective April 29, 1998). And while defendant also said that he

heard a rumor that the Kentucky sample was spoiled or lost, the trial court was not required to

accept his version of events given the conflicting evidence provided by DOC. See Richard, 2016

VT 75, ¶ 8 (explaining that “trial court is in the unique position to assess the credibility of the

witnesses and the weight of all the evidence presented” (quotation omitted)). DOC had no record

of a DNA sample provided by defendant in Kentucky in 2004 or of any samples taken then that

were spoiled or lost. The trial court also heard testimony that DPS does not accept DNA samples

collected by other jurisdictions for submission to the Vermont database and that DOC must provide

the sample. This record supports the trial court’s determination that the evidence was inadequate

to find that these samples were taken for submission to the Vermont DNA database. See id.

¶ 29. Although the trial court made these findings in line with an interpretation of

§ 1933(b) that we reject—that the statute requires submission to the Vermont DNA database—the

same record supports our conclusion. The evidence in the record is likewise inadequate for the

3
Defendant testified, and the trial court found, that defendant provided this DNA sample
in 1998. But regardless of the date of the collection in Minnesota, the record lacks any evidence
indicating that this sample was collected by or at the request of DOC.
12
trial court to have found that any of defendant’s prior DNA samples were taken or requested by

DOC.4

¶ 30. Accordingly, we affirm the trial court’s order, but for a different reason than relied

on by the court. See Caledonia-Record Pub. Co. Inc. v. Vt. State Colls., 2003 VT 78, ¶ 7, 175 Vt.

438, 833 A.2d 1273 (explaining that “Court may affirm judgment where right result was reached

for wrong reason”). Because defendant is required to provide a DNA sample under § 1933(a) and

there is insufficient evidence that his prior DNA samples were collected by or at the behest of

DOC under § 1933(b), the court properly granted DOC’s motion to compel him to provide a DNA

sample.

II. Scope of Sampling-Compulsion Hearing

¶ 31. We next address the proper scope of a DNA sampling-compulsion hearing under

§ 1935. The statute, in relevant part, lays out the following procedure for the hearing:

(a) If a person who is required to provide a DNA sample under this
subchapter refuses to provide the sample, the commissioner of the
department of corrections or public safety shall file a motion in the
superior court for an order requiring the person to provide the
sample.

(b) The person who refuses to provide a DNA sample shall be
served with a copy of the motion and shall be entitled to a hearing
by the court, limited in scope solely to the issues described in
subsection (c) of this section.

(c) If the court finds that the person who refused to provide a DNA
sample is a person required by section 1933 of this subchapter to
provide a DNA sample, the court shall issue a written order
requiring the person to provide the DNA sample in accordance with
the provisions of this subchapter.

20 V.S.A. § 1935.

4
We understand appellant to implicitly argue that collection of a DNA sample by
authorities of another state where an inmate in the custody of DOC is housed is tantamount to
collection by DOC. Whether the collection is by, for, or at the behest of DOC is fundamentally a
factual question. Whether and under what circumstances authorities in another state are entitled
to require an inmate in the custody of DOC to give a DNA sample that has not been requested by
DOC is a legal question that is not squarely before us in this case.
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 ¶ 32. The trial court concluded that § 1935 limited the scope of the issues at a sampling-

compulsion hearing to whether defendant was convicted of a designated crime under § 1933,

pointing to two previous decisions of this Court. In State v. Wigg, the defendant argued at his

sampling-compulsion hearing that he was not required to give a DNA sample because he was

currently seeking post-conviction relief, so the judgment against him was not final. 2007 VT 48,

¶ 3, 181 Vt. 639, 928 A.2d 494 (mem.). We rejected this argument, explaining that § 1935 “limits

the scope of the compelled-sampling hearing to the sole issue of whether the person refusing to

provide the sample is a person statutorily required to provide one,” and also noted that defendant

could challenge the constitutionality of the sampling statute itself. Id. ¶ 5 & n.3. We explained

that the sampling-compulsion hearing is “not a forum for defendants to collaterally attack their

convictions,” and, if the defendant’s conviction were later overturned or pardoned, he could seek

to have his DNA information removed from the state database under 20 V.S.A. § 1940. Id. ¶ 6.

We rephrased this holding in a narrower way in State v. Ritter, saying that “[t]he only challenges

defendant might have raised at the sampling-compulsion hearing were that he had not been

convicted of a designated crime . . . or that the DNA-database statutes are constitutionally infirm.”

2008 VT 72, ¶ 6, 184 Vt. 565, 956 A.2d 1141 (mem.).

¶ 33. Subsequently, in 2009, the Legislature amended § 1933, in part adding the language

in § 1933(b) at issue in this case. See 2009, No. 1, § 21. The plain language of § 1935(c) refers

to “section 1933” and not to any particular subsection therein. Had the Legislature intended to

limit the scope of the hearing to whether a person was convicted of a designated crime, it could

have referred specifically to § 1933(a), but it did not. See Trombley v. Bellows Falls Union High

Sch. Dist. No. 27, 160 Vt. 101, 104, 624 A.2d 857, 860 (1993) (“[I]n construing a statute, we

presume that language is inserted in a statute advisedly.”). Accordingly, we conclude that the

scope of the sampling-compulsion hearing is broader than the rule announced in Ritter, and

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necessarily requires a court to consider whether a person is required to provide a DNA sample

under any provision in § 1933.

¶ 34. But despite the trial court’s erroneous conclusion that the scope of the sampling-

compulsion hearing was restricted to determining whether defendant was convicted of a designated

crime, it did not limit its analysis accordingly. Instead, the trial court took testimony and accepted

post-hearing memoranda about the State’s DNA collection procedures and operation of the

Vermont DNA database, defendant’s alleged prior DNA submissions, and whether § 1933(b)

limits the number of DNA samples that an incarcerated person may be required to provide. And

after considering that evidence and defendant’s argument under § 1933(b), the court rejected

defendant’s position that the statute exempts him from providing a subsequent sample. Because

defendant was able to present his arguments and evidence below, the court’s erroneous conclusion

about the scope of § 1935 was harmless. See V.R.Cr.P. 52(a) (“Any error, defect, irregularity or

variance which does not affect substantial rights shall be disregarded.”).

Affirmed.

FOR THE COURT:

Chief Justice

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