In re: Burt Allen, No. S0898-10 CnC (Crawford, J., Nov. 8, 2012) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

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STATE OF VERMONT 

SUPERIOR COURT CIVIL DIVISION 

Chittenden Unit Docket No.: S0898-10 CnC 

In re: Burt Allen 

DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT 

 Petitioner Burt Allen is currently serving a sentence of eight to fifteen years after 

accepting a plea agreement for one count of lewd and lascivious conduct with a child in 

violation of 13 V.S.A. § 2602. He appealed the sentence, which was imposed following a 

contested sentencing hearing, arguing that the sentencing court erred by sentencing him 

based upon statements in the presentence investigation (PSI) referring to his digital 

penetration of the victim. The Supreme Court affirmed. State v. Allen, 2010 VT 47, 188 

Vt. 559 (mem.). Mr. Allen now seeks post-conviction relief pursuant to 13 V.S.A. 

§§ 7131–7137, arguing that defense counsel rendered ineffective assistance by failing to 

object to the allegation of penetration in the PSI, and that there is a reasonable probability 

that petitioner would have received a lighter sentence if counsel had made the objection. 

Mr. Allen requests that this court correct his sentence. 

 The State has filed a motion for summary judgment, arguing that petitioner cannot 

establish the prejudice element of his ineffective-assistance-of-counsel claim because he 

cannot prove that the sentencing court relied on the allegation of penetration in reaching 

its sentence. Mr. Allen opposes the State’s motion, and has also filed a motion for 

summary judgment, in support of which he has filed an affidavit by Paul Volk, his 

attorney at the change-of-plea and at sentencing, as well as the expert disclosure of 

Stephen L. Saltonstall dated March 1, 2011.1

BACKGROUND 

 The following facts are undisputed unless otherwise noted. On November 28, 

2007, Detective Jannine Wright interviewed Mr. Allen’s step-granddaughter, the victim 

in this case. The victim reported that, while she and her family were at Mr. Allen’s home 

for Thanksgiving dinner, she went to his shop and, while there, he suggested that they 

 

1

 Attorney Saltonstall has opined that “Mr. Allen received ineffective assistance of counsel at the 

sentencing proceeding, and there is a substantial probability that Mr. Allen would have received a lesser 

sentence if he had received effective assistance of counsel.” Attorney Saltonstall’s statement is a legal 

conclusion. The court does not believe it raises any material factual issue. 
2 

“play doctor,” and that he put his finger “a little bit inside” her. On December 5, 2007, 

Detective Michael Burns interviewed Mr. Allen. According to Det. Burns’s affidavit, 

Mr. Allen, after repeatedly denying inserting his finger inside the victim’s vagina, 

eventually admitted that he did insert his small finger “just a little bit.” 

 On February 7, 2008, Mr. Allen was arraigned on one count of aggravated sexual 

assault with a victim who was under the age of 13, in violation of 13 V.S.A. § 3253(a)(8). 

The information charged that, on or about November 22, 2007, Mr. Allen inserted his 

finger into the victim’s genital opening. 

 At a change-of-plea hearing on October 15, 2008, Mr. Allen entered into a plea 

agreement pursuant to which he agreed to plead guilty to a reduced charge of lewd and 

lascivious conduct with a child under 13 V.S.A. § 2602. The information as amended 

charged that he “ha[d] contact between his hand and [the victim’s] vulva.” The State’s 

description of the offense, to which petitioner agreed, was as follows: “On or about 

November 22, 2007, the defendant took his granddaughter to his workshop and they were 

going to be playing some games. He set her up on a desk and put oil on his hands, some 

sort of lubricant from his workshop, and actually touched her vaginal area.” The plea 

agreement called for a presentence investigation (PSI) and a sentencing hearing, with the 

State being capped at arguing for 10 to 15 years to serve and petitioner free to argue for 

less but no less than one year to serve. 

 The completed PSI was filed with the court and distributed to the parties on 

December 29, 2008. The PSI summarized the victim’s November 28, 2007 statement, as 

well as Mr. Allen’s December 5, 2007 statement. The PSI recommended a sentence of 

eight to fifteen years, all suspended except for eight years to serve. The PSI explicitly 

stated that “[t]he rationale for this request is as follows: after a thorough discussion 

considering several factors, ultimately, the focus continued to revert back to Mr. Allen’s 

minimization of the harm caused to the victim and her family and his lack of empathy.” 

PSI (State’s Ex. F) at 15. On January 7, 2009, Mr. Allen filed a sentencing memorandum 

and response to the PSI, in which he focused on rebutting the contention that he had 

minimized his conduct and the impact it had on the victim, and highlighted mitigating 

factors, such as Mr. Allen’s age, health, and remorse. Mr. Allen’s response did not, 

however, include any objection to the mention of penetration in the PSI. 

 At the February 9, 2009 sentencing hearing, the State argued for a sentence of ten 

to fifteen years to serve. In doing so, the State gave an account of the crime, then 

emphasized Mr. Allen’s inconsistent statements concerning the event, including differing 

explanations as to why he did what he did, and the fact the he did not believe that what he 

had done had caused any harm to the victim. After the prosecutor made her closing 
3 

remarks—during which she did not mention penetration or argue that penetration should 

be considered in determining the appropriate sentence—the following exchange took 

place: 

THE COURT: There’s—there’s several references in Ms. Goldstein’s 

report [the PSI] and the affidavits and statements of everybody, to the 

effect that the defendant put his finger into this child’s vagina. Is—is—

did I read those correctly, Ms. Hardin? 

MS. HARDIN: The contention was that—well, first of all, [the victim] 

wouldn’t be able to testify whether he went inside or not. The contention 

was, on the part of the defense, that he was somehow bullied into making 

that statement after repeatedly being asked by the police officer. 

THE COURT: Well,— 

MS. HARDIN: That would have entailed motions to suppress and all 

sorts of motions to dismiss. And—and we, in making this plea agreement, 

decided that we would forego those and—and not have the child have to 

come in and testify at a 12(d) hearing and this is the way we resolved the 

case. But yes, in fact, those were the—the affidavit was replete and the 

interview was replete with that. It was initially charged as a sexual 

assault. 

THE COURT: Well, I understood that. And—and the plea, obviously, 

has limited the potential incarceration. Seventy—Title 13 says that the 

sentencing court is to consider the nature and circumstances of the crime. 

And the affidavits, submitted by the defendant, and the statements that are 

made by the adults who talked to the child later, are—are a part of this 

record. Okay. Okay. 

MS. HARDIN: And, Your Honor, just to add, I would say that the—the 

use of the lubricant was pretty clear as to what the intent was. 

Sentencing Tr. 35:7–36:13, Feb. 9, 2009 (State’s Ex. H). Attorney Volk proceeded to 

argue for a sentence of one to five years, all suspended but one year, but did not address 

the penetration issue. In response, the State argued only that Mr. Allen’s allocution 

further illustrated his lack of empathy for the victim. 
4 

 In handing down its sentence, the trial court stated at the outset that it found the 

original description of the offense given by the victim to be reliable and recounted her 

version of the events: 

The Court finds that on the date of this incident, that this eight year old 

was alone with her step-grandfather in his workshop, that he suggested 

that they play doctor, that he picked this eight year old up and laid her on a 

towel that he had placed on the surface of his desk. That he told her to 

pull her pants down to her ankles and then he looked into her vagina. He 

then dipped his finger into some—what the child described as slippery 

stuff. He held her vagina open with one hand and with the other he put 

some of the stuff into the middle of her vagina. His finger, as the child 

described it, was a little bit inside, but wasn’t in that far. She asked him to 

wipe the slippery stuff off because she thought it might burn her. He did 

so. The defendant told her not to tell anyone. 

Id. 45:20–46:9. The court went on to explain the basis for its sentence: 

The defendant, in his interviews, has minimized what he did. He 

says that the incident probably had no impact on the child, unless people 

would tell her otherwise. 

 Words can’t describe how serious an offense this is, because of the 

betrayal of this innocent child. Much of the defense arguments has gone 

to the point of saying, well, this is only one incident. Whether it—you 

know, it’s—it’s—it’s only one incident, but it’s an incident that has 

caused so much damage that a severe sentence must be imposed. This is a 

horrible offense. 

 The common law says I must consider general deterren[ce], 

specific deterren[ce], rehabilitation, and punishment. 

 Contrary to what the defendant has represented to this Court, his 

act will have a dreadful impact on this child. I don’t wish it, but I’ve been 

in this business many, many years and I’m sorry to say that the prognosis 

is difficult for this child. 

 The statements that I heard in Court here from the parents show 

that the bad impact is already being felt by this little girl. 
5 

 I’ve dealt with many people as adults who have been damaged in 

this way as children and the consequences of this act cannot be 

exaggerated. 

 When punishment is imposed by a Court in Vermont, it must 

reflect the harm that has been done. The harm that is done here is almost 

beyond calculation. And this was not an impulsive act, this was a 

deliberate act that was designed and executed in several steps; the towel, 

the lubricant, were waiting for this eight year old. 

Id. 46:15–47:21. The court sentenced Mr. Allen to eight to fifteen years to serve, and 

stated that “[t]he defendant is immediately in custody.” Id. 47:22–25. According to 

Attorney Volk, Mr. Allen was taken into custody before the end of the sentencing 

hearing, and Attorney Volk was required to ask that Mr. Allen remain in court until his 

sentencing hearing concluded. Volk. Aff. ¶¶ 7–8, June 18, 2012.

Attorney Volk also asserts that the sentencing judge became “beet red” as he 

spoke and was “clearly worked up and agitated.” Id. ¶ 5. Attorney Volk states that the 

judge “was hunched over and leaned forward when he spoke and saliva was literally 

coming out of his mouth as he spoke.” Id. ¶ 6. Nowhere in its explanation for its 

sentencing decision did the court mention the mitigating information that was presented 

on Mr. Allen’s behalf, such has his lack of a prior criminal record or an evaluation 

suggesting that he was at low risk of reoffending. 

 Attorney Volk then objected that “[t]his was a plea to an L&L and the Court’s 

conclusions are clearly beyond the offense conduct relative to alleged penetration.” Id. 

48:17–19. He also asserted that the allegations of penetration “were never attested and 

were never probed” and that the State had conceded that the victim would not be able to 

substantiate penetration. Id. 48:20–49:2. The court responded as follows: 

I don’t think that’s true at all, Mr. Volk. I think that what Ms. Hardin said 

is something I’ve heard repeatedly. The State chose not to put this child 

through a trial so that there could be an aggravated sexual assault 

conviction. They chose to spare her that. And—and the parties negotiated 

the settlement, which, frankly, was less than Mr. Allen would have 

received if the State had chosen to put this child through such an ordeal. 

Id. 49:3–11. Attorney Volk then requested that Mr. Allen be given thirty days to put his 

affairs in order and to communicate with the Department of Corrections about his 

medical needs. The court denied the request, stating “He’s in custody. You should 
6 

communicate with Corrections, please, please, immediately about the medical needs, 

okay.” Id. 49:18–50:1. 

 As mentioned above, Mr. Allen appealed the sentence and the Supreme Court 

affirmed. See State v. Allen, 2010 VT 47, ¶ 13, 188 Vt. 559 (mem.) (concluding that 

“defendant waived any objection to the court’s consideration of the statements in the PSI 

regarding penetration” because he was required under V.R.Cr.P. 32(c)(4) to raise 

objections to facts contained in the PSI before sentencing). 

ANALYSIS 

 “A petitioner bears the burden of proof on a PCR petition and must show, ‘by a 

preponderance of the evidence, that fundamental errors rendered his conviction 

defective.’” In re Combs, 2011 VT 75, ¶ 9, 190 Vt. 559 (mem.) (quoting In re Liberty, 

154 Vt. 643, 644 (1990) (mem.)). “Vermont uses a two-part standard for evaluating an 

ineffective assistance of counsel claim—a test that is essentially equivalent under the 

United States and Vermont constitutions.” Id. (citing In re Russo, 2010 VT 16, ¶ 16, 187 

Vt. 367). “Ineffective assistance of counsel cases first require that the petitioner show by 

a preponderance of the evidence that defense counsel’s performance ‘fell below an 

objective standard of reasonableness informed by prevailing professional norms.’” Id. 

(quoting In re Dunbar, 162 Vt. 209, 212 (1994)). “If this first burden is met, petitioner 

must further show that counsel’s performance prejudiced the defense by demonstrating a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. (quotation omitted). A “reasonable 

probability” is “a probability sufficient to undermine confidence in the outcome.” In re 

LaBounty, 2005 VT 6, ¶ 7, 177 Vt. 635 (mem.) (quoting Strickland v. Washington, 466 

U.S. 668, 694 (1984)). In the sentencing context, the petitioner must show that there was 

a reasonable probability that he would have received a different sentence. Porter v. 

McCollum, 130 S. Ct. 447, 453 (2009). 

For purposes of summary judgment, the petitioner has made out a prima facie 

case on the first element of the PCR claim: evidence of ineffective assistance of counsel. 

Statements in the PSI about whether penetration was part of the offense conduct went 

unchallenged. The decision on direct appeal noted that defense counsel had waived any 

objection. There may have been tactical reasons why experienced defense counsel would 

not have drawn attention to this aspect of the case, especially when the issue of 

penetration was not raised by the State at sentencing. Viewed in the light most favorable 

to the petitioner, however, there is sufficient evidence of ineffective assistance to require 

a fact-based decision after a hearing. 
7 

The same cannot be said of the evidence on the second element: a reasonable 

probability of a different outcome. Only the sentencing judge knows for sure whether the 

references to digital penetration affected his sentence, and he cannot be asked. In re 

Wilkinson, 165 Vt. 183, 187 (1996) (concluding that permitting the sentencing judge to 

testify at a PCR proceeding “would undermine both the propriety of the judicial office 

and the fairness of post-conviction relief proceedings”). The court hearing the PCR case 

can only review the statements made by the sentencing judge on the record and compare 

these with the information that was properly before him at sentencing. 

 In its motion, the State argues that Mr. Allen cannot establish that the sentencing 

court relied on the finding of penetration in reaching its sentence, and thus cannot make 

the requisite showing of prejudice. The State contends that the sentencing court made it 

clear that the sentence was based on the deliberate nature of act, the betrayal of the victim 

and the enormous harm caused to her, and Mr. Allen’s minimization of or failure to 

acknowledge that harm. Mr. Allen asserts that, because the sentencing court asked about 

them, the allegations of penetration clearly concerned the court. Mr. Allen further notes 

that the court found as a fact that he penetrated the victim’s vagina with his finger, and 

then went on to state that the crime was serious beyond words and “horrible.” He also 

asserts that the judge did not mention any of the mitigating evidence in rendering the 

sentence, and that the sentence imposed is unusually harsh for lewd and lascivious 

conduct with a child.2

 The court concludes that Mr. Allen cannot show that there is a reasonable 

probability that he would have received a lesser sentence if defense counsel had objected 

to the allegations of penetration in the PSI. The bulk of the argument from the parties 

and the court’s explanation of the basis for its sentence contained no mention of 

penetration. Although the court described the crime as “serious” and “horrible,” the 

court’s stated reason for that description was that the crime was a betrayal of an innocent 

child. The court also mentioned Mr. Allen’s failure to acknowledge the harm to the 

victim and the deliberate nature of his conduct. To the extent the court imposed a harsh 

sentence, its stated reasons for doing so had nothing to do with penetration, and the 

sentence was less than the ten-to-fifteen years that the State could seek. 

 The sentencing court was undoubtedly aware of the statements in the PSI 

regarding penetration. The judge asked about this issue at the time of sentencing. 

However, petitioner cannot show, by a preponderance of the evidence, that the court 

would have imposed a lesser sentence if it had not considered those statements. There is 

 

2

 In his cross-motion for summary judgment, Mr. Allen also contends that the sentencing judge was clearly 

prejudiced by the allegation of penetration because of: (1) the judge’s appearance and demeanor, and (2) 

the fact that the judge remanded Mr. Allen to custody even before the end of the hearing. 
8 

no basis for petitioner’s suggestion that the sentencing court was so offended by the 

penetration allegations that it ignored potentially mitigating evidence.3 As the Supreme 

Court noted, the sentencing court “adequately considered all of the relevant factors in this 

case.” Allen, 2010 VT 47, ¶ 14. Absent any suggestion of penetration, the court would 

have been within its discretion to impose the sentence it did, and the court’s specific 

explanation of the basis for its sentence would support the sentence even without 

consideration of the statements in the PSI relating to penetration. 

The court rejects Mr. Allen’s contention that the sentencing court’s statement that 

“the defendant is immediately in custody” proves that the court was prejudiced by the 

penetration issue. It would be erroneous for a sentencing court to order a defendant who 

has not been disruptive to the proceedings and who has not voluntarily absented himself 

to be removed from his sentencing hearing before the proceeding had concluded. See 

V.R.Cr.P. 43. However, it is not entirely clear from the record that that is what happened 

in this case. Even assuming that Mr. Allen was in the process of being removed from the 

courtroom before Attorney Volk objected,4 there is no indication in the record or in 

Attorney Volk’s affidavit that the sentencing judge had ordered that action. 

The court also rejects the argument that the sentencing judge’s appearance and 

demeanor can be employed to infer that the sentence was harsh because of the issue of 

penetration. The conduct that the petitioner admitted to in pleading to the reduced charge 

of lewd and lascivious conduct with a child and which was properly before the judge at 

sentencing could reasonably be expected to cause a strong expression of condemnation. 

The sentencing judge’s “beet red” complexion and evidence of anger cannot be traced to 

a single aspect of the crime. An experienced judge, sitting on a felony case, could be 

expected to be moved and angered by the petitioner’s conduct. 

The Vermont Supreme Court reached a similar result in In re Martel. There, the 

petitioner was convicted of one count of sexual assault on his girlfriend. No. 2001-174 

(Vt. Mar. 2002) (unpublished mem.), available at http://www.vermontjudiciary.org/dupeo/eo01174.aspx. He sought post-conviction relief, arguing, among other things, that 

 

3

 The fact that the sentencing court did not specifically mention the mitigating evidence does not mean that 

the court ignored it. E.g., United States v. Amedo, 487 F.3d 823, 833 (11th Cir. 2007) (reasoning that even 

though the district court’s sentencing order did not mention arguably mitigating evidence, the reviewing 

court could not say that the district court’s failure to discuss that evidence meant that the court erroneously 

ignored or failed to consider it); People v. Samayoa, 938 P.2d 2, 45 (Cal. 1997) (“The trial court’s mere 

failure to mention expressly all evidence presented in mitigation . . . does not mean the trial court ignored 

or overlooked such evidence, but simply indicates that the court did not consider such evidence to have 

appreciable mitigating weight.”). 

4

 The record reflects that, shortly after the sentencing judge stated that Mr. Allen was “immediately in 

custody,” Attorney Volk stated to Mr. Allen: “Burt, just hold on a second. You need to see this or hear 

this.” Sentencing Tr. 48:5–6. 
9 

his trial counsel was ineffective for failing to correct an allegedly “incredible” statement 

in the PSI report to the effect that he had threatened his attorney. On appeal from the trial 

court’s denial of his petition, the Supreme Court affirmed, concluding that the transcript 

of the sentencing hearing revealed that the trial court imposed the sentence it did based 

on the seriousness of the offense, prior convictions, and repeated violations of probation. 

Id. Similarly, in State v. Knutson, the petitioner argued ineffective of counsel on the 

grounds that counsel failed to obtain rulings on the content of a PSI report that she 

claimed implied greater offenses than the offenses to which she pleaded. No. 05-1802, 

2006 WL 3019229, at *3 (Iowa Ct. App. Oct. 25, 2006). The appellate court found 

“nothing in the record indicating the trial court’s sentencing decision was improperly 

influenced by the cited inaccuracies.” Id. at *4. For the reasons described above, the 

result should be the same in this case. 

ORDER 

 The State’s motion for summary judgment is granted. The petitioner’s motion for 

summary judgment is denied. 

Dated at Burlington this ___ day of November 2012. 

 

 _________________ 

 Geoffrey Crawford, 

 Superior Court Judge