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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] 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 sente nce of eight to fifteen years after accepting a plea agreement for one count of lewd an d lascivious conduct with a child in violation of 13 V.S.A. § 2602. He appealed the sen tence, which was imposed following a contested sentencing hearing, arguing that the sent encing court erred by sentencing him based upon statements in the presentence investigat ion (PSI) referring to his digital penetration of the victim. The Supreme Court affir med. State v. Allen , 2010 VT 47, 188 Vt. 559 (mem.). Mr. Allen now seeks post-convictio n 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 sente nce if counsel had made the objection. Mr. Allen requests that this court correct his sent ence.

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 th e 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, a s well as the expert disclosure of Stephen L. Saltonstall dated March 1, 2011. 1

BACKGROUND

The following facts are undisputed unless otherwis e noted. On November 28, 2007, Detective Jannine Wright interviewed Mr. Alle n’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 re ceived ineffective assistance of counsel at the sentencing proceeding, and there is a substantial p robability that Mr. Allen would have received a les ser sentence if he had received effective assistance of counsel.” Attorney Saltonstall’s statement is a l egal conclusion. The court does not believe it raises a ny 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. Acc ording to Det. Burns’s affidavit, Mr. Allen, after repeatedly denying inserting his f inger inside the victim’s vagina, eventually admitted that he did insert his small fi nger “just a little bit.”

On February 7, 2008, Mr. Allen was arraigned on on e 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 guil ty to a reduced charge of lewd and lascivious conduct with a child under 13 V.S.A. § 2 602. 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 agr eed, was as follows: “On or about November 22, 2007, the defendant took his granddaug hter 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 t ouched her vaginal area.” The plea agreement called for a presentence investigation (P SI) 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 dis tributed 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. Th e PSI recommended a sentence of eight to fifteen years, all suspended except for ei ght 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 h er 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 reb utting 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 remor se. Mr. Allen’s response did not, however, include any objection to the mention of pe netration in the PSI.

At the February 9, 2009 sentencing hearing, the St ate 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 conc erning 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 closing3

remarks—during which she did not mention penetratio n or argue that penetration should be considered in determining the appropriate senten ce—the following exchange took place:

THE COURT: There’s—there’s several references in M s. 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 someho w bullied into making that statement after repeatedly being asked by the police officer.

THE COURT: Well,—

MS. HARDIN: That would have entailed motions to su ppress 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 affidav it 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 p lea, obviously, has limited the potential incarceration. Seventy—T itle 13 says that the sentencing court is to consider the nature and circ umstances 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, a re—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 th e 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 susp ended but one year, but did not address the penetration issue. In response, the State argu ed only that Mr. Allen’s allocution further illustrated his lack of empathy for the vic tim.4

In handing down its sentence, the trial court stat ed at the outset that it found the original description of the offense given by the vi ctim 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 ye ar 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 looke d into her vagina. He then dipped his finger into some—what the child des cribed as slippery stuff. He held her vagina open with one hand and w ith the other he put some of the stuff into the middle of her vagina. H is finger, as the child described it, was a little bit inside, but wasn’t i n 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 bas is for its sentence:

The defendant, in his interviews, has minimized wha t he did. He says that the incident probably had no impact on th e child, unless people
would tell her otherwise.

Words can’t describe how serious an offense this i s, because of the betrayal of this innocent child. Much of the defen se arguments has gone to the point of saying, well, this is only one inci dent. 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 b e imposed. This is a
horrible offense.

The common law says I must consider general deterr en[ce], specific deterren[ce], rehabilitation, and punishme nt.

Contrary to what the defendant has represented to this Court, his act will have a dreadful impact on this child. I d on’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 l ittle girl.5 I’ve dealt with many people as adults who have bee n damaged in this way as children and the consequences of this a ct 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 se veral steps; the towel, the lubricant, were waiting for this eight year old

.

Id . 46:15–47:21. The court sentenced Mr. Allen to ei ght to fifteen years to serve, and stated that “[t]he defendant is immediately in cust ody.” Id . 47:22–25. According to Attorney Volk, Mr. Allen was taken into custody bef ore 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, J une 18, 2012.

Attorney Volk also asserts that the sentencing judg e 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 mitig ating 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 ple a 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 thin k that what Ms. Hardin said is something I’ve heard repeatedly. The State chos e not to put this child through a trial so that there could be an aggravate d sexual assault conviction. They chose to spare her that. And—and the parties negotiated the settlement, which, frankly, was less than Mr. A llen 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. A llen be given thirty days to put his affairs in order and to communicate with the Depart ment of Corrections about his medical needs. The court denied the request, stati ng “He’s in custody. You should6

communicate with Corrections, please, please, immed iately about the medical needs, okay.” Id . 49:18–50:1.

As mentioned above, Mr. Allen appealed the sentenc e 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 cons ideration of the statements in the PSI regarding penetration” because he was required unde r 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 p etition and must show, ‘by a preponderance of the evidence, that fundamental err ors 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 t wo-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 counse l’s performance ‘fell below an objective standard of reasonableness informed by pr evailing 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 prejud iced the defense by demonstrating a reasonable probability that, but for counsel’s unpr ofessional errors, the result of the proceeding would have been different.” Id . (quotation omitted). A “reasonable probability” is “a probability sufficient to underm ine 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 receive d a different sentence. Porter v.
McCollum , 130 S. Ct. 447, 453 (2009).

For purposes of summary judgment, the petitioner ha s made out a prima facie
case on the first element of the PCR claim: evidenc e 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 wh y 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 sentenci ng. Viewed in the light most favorable to the petitioner, however, there is sufficient evi dence of ineffective assistance to require a fact-based decision after a hearing.7 The same cannot be said of the evidence on the seco nd element: a reasonable probability of a different outcome. Only the sente ncing judge knows for sure whether the references to digital penetration affected his sent ence, and he cannot be asked. In re
Wilkinson , 165 Vt. 183, 187 (1996) (concluding that permitti ng the sentencing judge to testify at a PCR proceeding “would undermine both t he propriety of the judicial office and the fairness of post-conviction relief proceedi ngs”). The court hearing the PCR case can only review the statements made by the sentenci ng 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 can not establish that the sentencing court relied on the finding of penetration in reach ing its sentence, and thus cannot make the requisite showing of prejudice. The State cont ends 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, bec ause the sentencing court asked about them, the allegations of penetration clearly concer ned the court. Mr. Allen further notes that the court found as a fact that he penetrated t he victim’s vagina with his finger, and
then went on to state that the crime was serious be yond words and “horrible.” He also asserts that the judge did not mention any of the m itigating evidence in rendering the sentence, and that the sentence imposed is unusuall y harsh for lewd and lascivious
conduct with a child. 2

The court concludes that Mr. Allen cannot show tha t there is a reasonable probability that he would have received a lesser se ntence 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 se ntence contained no mention of penetration. Although the court described the crim e 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 failur e to acknowledge the harm to the
victim and the deliberate nature of his conduct. T o the extent the court imposed a harsh sentence, its stated reasons for doing so had nothi ng to do with penetration, and the sentence was less than the ten-to-fifteen years tha t 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. Alle n also contends that the sentencing judge was clear ly 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 custo dy even before the end of the hearing.8

no basis for petitioner’s suggestion that the sente ncing court was so offended by the penetration allegations that it ignored potentially mitigating evidence. 3 As the Supreme Court noted, the sentencing court “adequately consi dered all of the relevant factors in this
case.” Allen , 2010 VT 47, ¶ 14. Absent any suggestion of penet ration, the court would have been within its discretion to impose the sente nce it did, and the court’s specific explanation of the basis for its sentence would sup port the sentence even without consideration of the statements in the PSI relating to penetration.

The court rejects Mr. Allen’s contention that the s entencing court’s statement that “the defendant is immediately in custody” proves th at the court was prejudiced by the penetration issue. It would be erroneous for a sen tencing 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 th e proceeding had concluded. See V.R.Cr.P. 43. However, it is not entirely clear fr om 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 senten cing 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 admit ted to in pleading to the reduced charge
of lewd and lascivious conduct with a child and whi ch 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 ev idence 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 ass ault on his girlfriend. No. 2001-174 (Vt. Mar. 2002) (unpublished mem.), available at ht tp://www.vermontjudiciary.org/dupeo/eo01174.aspx. He sought post-conviction relie f, arguing, among other things, that

3 The fact that the sentencing court did not specifi cally 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 tha t even though the district court’s sentencing order did no t mention arguably mitigating evidence, the reviewi ng court could not say that the district court’s failu re to discuss that evidence meant that the court er roneously ignored or failed to consider it); People v. Samayoa , 938 P.2d 2, 45 (Cal. 1997) (“The trial court’s me re failure to mention expressly all evidence presented in mitigation . . . does not mean the trial court ignored or overlooked such evidence, but simply indicates t hat the court did not consider such evidence to hav e appreciable mitigating weight.”).

4 The record reflects that, shortly after the senten cing judge stated that Mr. Allen was “immediately i n custody,” Attorney Volk stated to Mr. Allen: “Burt, just hold on a second. You need to see this or he ar this.” Sentencing Tr. 48:5–6.9

his trial counsel was ineffective for failing to co rrect an allegedly “incredible” statement in the PSI report to the effect that he had threate ned his attorney. On appeal from the trial court’s denial of his petition, the Supreme Court a ffirmed, concluding that the transcript of the sentencing hearing revealed that the trial c ourt imposed the sentence it did based on the seriousness of the offense, prior conviction s, and repeated violations of probation.
Id . Similarly, in State v. Knutson , the petitioner argued ineffective of counsel on t he grounds that counsel failed to obtain rulings on th e 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