The Supremes: A bit more play

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Editor’s note: This article is by Daniel Richardson, a partner with Tarrant, Gillies, Merriman, & Richardson, and founder of SCOV Law Blog, a website dedicated to summarizing and demystifying Vermont Supreme Court Cases.

The case: State v. Delaoz, 2010 VT 65 (reargument)

We reported on the case of this hard-luck Defendant back in November 2010. Defendant, as you may remember, gave a false name to the police that just happened to have an outstanding warrant attached to it. When the police arrested Defendant and learned his real name, they did a pat down search and found a rolled up packet of cocaine in a dollar bill (which as he explained was “just a little bit for play”), a bag of cocaine, a bag of marijuana, a box of marijuana, six Seroquel tablets, another bag of cocaine, and a handcuff key. Pretty much everything but a signed confession fell out of Defendant’s pants at the arrest. This is not to mention the giant puff cloud of cocaine Defendant created at the station when he tore one of the bags open.

In its original decision, the SCOV upheld the trial court’s decision to allow the various pieces of evidence listed above into the trial as each followed a logical series of questions and disclosures which gave the Officer good cause to escalate their search at each stage of the arrest. The SCOV also dismissed Defendants issues concerning evidence of prior bad acts, judicial bias, and relevance of evidence.

The SCOV, however, reversed the trial court on its sentencing. The problem here was that Defendant’s minimum sentence (4 years, 11 months) was so close to his maximum sentence (five years) that it would have been impossible for Defendant to apply for and receive parole in the 30 days before his maximum sentence was up. Thus, the State was required to go back and argue for a new sentence that would, theoretically, be smaller than the one previous issued to allow for a meaningful parole application. This led the State to make a motion for reargument to the SCOV.

It is common practice for a losing party to file a motion for re-argument with the SCOV. Essentially, it is a last gasp effort to say, “Hey! Wait a minute, did you think of this?” It is just as common for the SCOV to deny such request with the formal equivalent of “Yeah, we did, and you still don’t win.” In this case, however, something in the State’s motion for reconsideration must have caught the SCOV’s eye because it granted the State’s motion and allowed additional briefing.

On re-argument, the State raises three issues:

1) the gap in sentences is meaningful because Defendant can shorten his sentence through programs other than parole;

2) the legislature did not mean what it said; and

3) the system is to big too fail and this decision threatens to wreck numerous sentences.

As you might expect, the SCOV spends very little time dismissing points 2 and 3, and it only briefly addresses 1 before dismissing it as well. For the SCOV, the key is the legislative intent expressed by the underlying sentencing statute. Under this standard, parole eligibility is still the most critical measure of a meaningful difference between a maximum and minimum sentence. Take away the meaningful window for parole eligibility, and your have nullified the purpose of the statute.

Thus, the SCOV sticks with its earlier decision, and the addendum dealing with the re-argument renders the reconsideration process much ado about nothing. Still, we here at SCOV Law welcome any opportunity to rehash what must have been one of the most interesting arrest affidavits of 2007.

Key Concepts: Sentencing, re-argument, cocaine possession, minimum–maximum sentencing

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