SCOV Law Blog: Retroactivity, revisited and rejected

Editor’s note: This piece from the SCOV Law Blog is by Andrew Delaney. 

State v. Aubuchon, 2014 VT 12

Sometimes I’ll pretend I understand something that’s a mystery to me. For example, I can recite the rule against perpetuities from memory. I know the elements and areas of the law where it applies, but don’t ask me to explain it. I know just enough about it to wave it around and pretend.

Sentencing calculations are something I’m not going to pretend to understand either. That’s some “new math” in my book. The Department of Corrections can have it.

In today’s case, defendant wanted additional credit toward his aggregate minimum sentence, but the trial court denied it, and that led to this appeal. As the SCOV puts it, “The facts concerning the multiple charges filed against defendant and the subsequent sentencing are complicated.”

Ain’t that the truth?

First, defendant was charged in Orange County for larceny and was held for lack of bail. He served about eight months, pleaded guilty, was sentenced to six months to three years, and then was immediately released on furlough (because he’d already served beyond the minimum).

Not two months later, defendant was charged with assault and robbery and escape from furlough in Windsor County. He was again held for lack of bail. While awaiting trial on those charges, he was charged with two counts of larceny: one in Washington County and one in Windham County. He continued to be held for lack of bail. At the same time, he was still serving his sentence from Orange County (on furlough). Confused yet?

He pleaded guilty to the pending charges, and was given a variety of consecutive (meaning one picks up where the last one leaves off) sentences. The Department of Corrections’ (DOC) calculated an “aggregate sentence of 2-38 years and awarded defendant 236 days against the aggregate maximum for time served.”

Defendant filed a grievance with DOC arguing that the calculation was wrong and that he should get more credit for time served. The DOC said “Nope, ‘cause the sentences are consecutive.” So defendant filed a motion asking the superior court to correct the sentence to 30 months to 33 years and give credit for the 604 days between arraignment and sentencing on the last set of charges.

The trial court granted the motion in part and denied it in part. Essentially, the trial court noted that certain sentences (Windsor County based assault and robbery, and escape) were concurrent, but defendant was not entitled to additional credit.

So all that brings us to the SCOV’s door. Defendant’s arguments on appeal are three:

• The aggregation is wrong;
• There’s a new law that entitles him to extra credit, and the new law is a clarification, not an amendment so it applies to his case; and
• Even under the old law, his furlough wasn’t revoked; he was held for lack of bail; and he should get credit.

The State counters with:

• He waived the new legislative enactment argument ‘cause he didn’t raise it below;
• Nuh-uh, it’s an amendment;
• He doesn’t get extra credit under the old law; and
• Wrong rule! Game over!

The SCOV rejects the State’s procedural argument first. The SCOV notes that usually the DOC is in a better position to calculate a defendant’s sentence; in that case, if the defendant has an issue with the calculation the proper course is to file a grievance, and eventually file a civil rule 75 action (review of administrative action). On the other hand, sometimes the trial court is in the best position to fix a screwy sentence; in that case, as here, then the proper course is to file a criminal rule 35 action (correction of sentence).

The SCOV also rejects the State’s waiver argument, noting that the legislation’s effective date was after the filing of the appeal, and thus, it will consider what effect, if any, the legislation has on defendant’s sentence.

The effect, the SCOV reasons, is none. Here, the SCOV distinguishes a case that stands (or rather, stood) for the proposition that a legislative clarification retroactively applies by noting that in this case, it’s “not clear” that the legislation was a response to a SCOV case. Here, there was even a memo in the legislative history that gave a specific example of how the new law would differ in effect from the old law.

Even assuming that the legislative action at issue here was a clarification, the SCOV rejects its earlier position “suggesting that a legislative enactment intended to ‘correct’ an opinion of this Court should be applied retrospectively as a clarification of what the law had always been.” From now on, the SCOV states, the presumption is going to be against retroactivity. Essentially, this sounds like, unless the Legislature says: THIS IS A RETROACTIVE STATUTE AND STUFF, the SCOV won’t be playing that game.

Administrative law practitioners take note: creative legislative action arguments just got a whole lot harder.

While the SCOV leaves a door open for “consideration” of a later Legislature’s clarifications, it’s a small door, and it might be said that this opinion represents something of a sea change in this field. So this is one to read. I mean, sure, they all are, but this one’s important. Who will make the next move in this thrilling game of legislative interpretation chess? Stay tuned.

In somewhat anticlimactic fashion, the SCOV concludes that defendant was not entitled to any credit beyond what he was given under the old law, which at the time of sentencing provided credit “for any days spent in custody in connection with the offense for which sentence was imposed.” Here, defendant was in jail (though on furlough) on his previous sentence and got hit with consecutive sentences based on the new charges. The SCOV reasons that he got the credit to which he was entitled.

The result would likely be different if defendant’s sentences were concurrent, and defendant would get credit while being held for lack of bail while still on furlough. So here’s what you need to remember: consecutive, bad; concurrent good; and it ain’t retroactive unless the Legislature says so.