[R]UTLAND – Dennis Duby, stepfather of 2-year-old Dezirae Sheldon, will serve at least 13 years in prison for killing the toddler.
The toddler’s mother and biological father say the sentence is too lenient.
“If my giving Mr. Duby a life sentence, or even two or three life sentences, would somehow bring Dezirae back of course I would do that in a second,” Judge Cortland Corsones said, “but we all know that that won’t happen.”
The judge said at a hearing Tuesday in Rutland Superior criminal court he would accept a plea deal reached between Duby’s attorney and prosecutors in the case. That agreement called for Duby to receive a sentence of 20 years to life in prison, with all but 13 years suspended.
Moments later, the case that began in 2014 and prompted calls for change in how Vermont deals with the state supervision of children, came to a close. Duby left the courtroom in chains and headed to jail.
Duby, now 35 and formerly of Pittsford, spoke briefly in the courtroom before he was taken away to serve his sentence. He offered an apology.
“I am truly sorry,” he said. “My actions have affected a lot of people’s lives, both inside and outside of this courtroom. I’m not asking for forgiveness, for I will never forgive myself for the rest of my life.”
He added, “If I could bring back Dezirae I would, I would give my life and soul.”
In May, Duby admitted causing the head injuries that led to Dezirae’s death in February 2014. He pleaded guilty to second-degree murder as part of the agreement with prosecutors and a formal sentencing hearing was set.
The judge said Tuesday that in accepting the plea deal he recognized if the case proceeded to trial both the prosecution and defense faced risks.
“To a large extent the trial would be a battle of experts, with the state’s experts testifying that this death could not possibly have been caused by an accident and the defendant’s experts testifying that it could have been caused by an accident,” the judge said.
“This type of crime can be particularly difficult to prove in a court of law as there are no eyewitnesses other than the defendant.”
Such dueling expert testimony could sway a jury one way or another, Corsones said.
“Of course, it would be another tragedy if a guilty man escaped punishment for his crime,” the judge said.
“The final sentence may not fully satisfy the victims,” Corsones added, “but they do have the satisfaction of knowing that a guilty man has admitted his guilt and is being punished for his horrific crime.”
Earlier in the hearing, Sandra Eastman, Dezirae’s mother, told the judge she felt betrayed when she first learned that Duby had been charged with murder in the child’s death.
That anger boiled over, Eastman said, when she appeared for Duby’s arraignment shortly after Dezirae’s death and she tried to attack him as the hearing came to a close. She said a sheriff grabbed her before she could get to Duby.
She told the judge how family and friends turned against her, with some calling her a “killer.” Eastman talked at length about the grief she feels over the loss of her daughter.
Eastman, in asking the judge to reject the plea agreement, called a sentence of 13 years an insult.
Initially she was supportive of the plea deal, and hoped she would learn more about Duby’s murder of her daughter, which in the past have featured differing versions of events.
However, Eastman said, Duby continues to “minimize” his conduct.
At the change of plea hearing in May, Duby told the judge that on Feb. 19, 2014, Eastman had just left the Poultney home she shared with Duby to take care of errands — shopping and laundry.
He said he was extremely tired from working the night before as a bouncer at a club and he couldn’t stop Dezirae from crying.
“I did everything I could. I became irritated and frustrated, and I used my foot to try to move her,” he said at that hearing.
As he kicked at her, Duby said, her legs came out from her under her and she fell.
He called Eastman who returned home and Dezirae was rushed to the Rutland hospital. The girl was later transferred to Dartmouth-Hitchcock Medical Center in Lebanon, New Hampshire. She died there two days later.
Prosecutors have said Dezirae died of blunt force trauma to her head. They compared the severity of her injuries to those that might be seen from someone involved in a high-speed car crash or fall from multi-story building.
Thomas Costello, an attorney representing Willis Sheldon, Dezirae’s biological father, also addressed on the court Tuesday on his client’s behalf. Costello said he didn’t buy Duby’s story in light of the severity of the injuries Dezirae suffered.
“We beg this court, reject this agreement to have this matter tried and to have a just sentence imposed,” Costello said.
Both Sheldon and Eastman declined comment as they walked out of court Tuesday. Dan Maguire, Duby’s attorney, also declined comment after the hearing.
Assistant Attorney General Matthew Levine, who prosecuted the case with Rutland County State’s Attorney Rose Kennedy, said in court Tuesday that he understood the positions held by Eastman and Sheldon.
But given the risk posed by differing medical expert testimony and Duby’s willingness to admit actions that caused Dezirae’s death, the plea deal was the best outcome.
The prosecutor added that there was no evidence that Duby’s action were intentional or preplanned. Levine said the 13-year prison term was reasonable, especially considering that Duby had no prior criminal record and was considered a low-risk to reoffend.
Kennedy added that if the case went to trial the prosecution’s experts could talk about the injuries Dezirae suffered, but they couldn’t describe how they happened.
“At the end of the day, the state would be unable to explain exactly how these injuries occurred,” Kennedy said. “There were only two people in the house at the time, the defendant and Dezirae, and as much as we would like to present to the jury what happened to Dezirae we would be left being unable to do that.”
That could lead to verdict on a lesser charge than murder.
“The prospects of a jury walking out of a trial convicting Mr. Duby of manslaughter and not murder were unacceptable,” Kennedy said. “This plea agreement does label him a murderer. It does label him appropriately.”
Dezirae’s death helped lead to a legislative review and overhaul of child protection system in Vermont.
Dezirae had previously suffered injuries, raising concerns of abuse and neglect that prompted the Department for Children and Families to become involved. About a year before Dezirae’s death, she was taken to the hospital with breaks in both legs.
She was taken into state custody at that time and placed in the care of a relative. However, DCF eventually placed her back in Eastman’s custody in the home she shared with Duby.
Vermont State Police conducted a criminal inquiry into DCF’s handling of Dezirae’s case. Then-Attorney General William Sorrell reviewed the case and determined there had been no criminal wrongdoing on the part of the social workers involved.
Sheldon sued the state in 2014. He alleged the state failed to adequately protect his daughter. Earlier the year, the state settled that lawsuit for $500,000. In reaching the settlement, the state did not admit to any wrongdoing.
Eastman, speaking in court Tuesday, said if Dezirae were alive today she would be 5 years old and preparing to start kindergarten.
“Dezi had the rest of her life ahead of her. She will never go to school, graduate, wear a cap and gown. She will never go to school dances or to prom,” Eastman said. Dezirae, she added, could have grown up to be a doctor, lawyer, or even the first woman president.
“None of us will ever know what could have been,” Eastman continued. “We only know what is, and that is, that she is in heaven and that Dennis has stolen her from all of us and we will never have her back.”
