State v. Hanlon

STATE_V_HANLON.94-584; 164 Vt 125; 665 A.2d 603

[Filed 11-Aug-1995]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                     No. 94-584


State of Vermont                            Supreme Court

                                            On Appeal from
  v.                                        District Court of Vermont,
                                            Unit No. 1, Windham Circuit

John R. Hanlon                              June Term, 1995


Paul F. Hudson, J.

       Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellant

       Robert Appel, Defender General, and Judith A. Ianelli, Appellate
  Defender, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       MORSE, J.   The State appeals the trial court's decision to continue
  the prosecution of defendant on charges of sexual assault upon two boys
  pending the outcome of the appeal of convictions on similar charges in
  Massachusetts.  We affirm.

       In 1993, defendant, a 66-year-old Catholic priest, was charged with
  sexually assaulting two boys, Christopher W. and Christopher M., on
  separate occasions during ski trips to Vermont in 1987.  In April 1994,
  defendant was sentenced by a Massachusetts court to three consecutive life
  terms followed by a suspended life sentence after he was convicted of two
  counts of the forcible rape of William W., the brother of Christopher W. 
  Defendant appealed the Massachusetts convictions, and then sought to have
  the Vermont charges dismissed in the interest of justice under V.R.Cr.P.
  48(b)(2).

       On October 6, 1994, the trial court continued further proceedings of
  the Vermont case "until an Order disposing of the Defendant's appeal in
  Massachusetts is entered."  The court

 

  ordered that if the Massachusetts convictions are reversed, a status
  conference would be convened to conclude pre-trial preparation in the
  Vermont case.  On the other hand, if the Massachusetts convictions are
  affirmed, the State would be afforded thirty days to file its objections
  "to the grant of the Defendant's Motion to Dismiss these prosecutions with
  prejudice."

       The trial court's opinion suggests that it is inclined toward granting
  defendant's motion to dismiss.  The court acknowledged that the Vermont
  charges involve different victims assaulted in a different place
  approximately six years after the Massachusetts assaults, and that the
  testimony of the two Vermont victims at the Massachusetts trial did not
  immunize defendant from prosecution for the Vermont assaults. 
  Nevertheless, the court stated that it would be difficult to justify trial
  on the Vermont charges considering that (1) defendant would be eighty- one
  years old at his earliest possible release date in Massachusetts if the
  sentences there are upheld; (2) the two Vermont victims contributed to
  defendant's Massachusetts convictions through their testimony; and (3)
  there is a significant backlog of criminal cases in Windham District Court.

       On October 17, 1994, the State sought permission to appeal the October
  6 order under both 13 V.S.A.  7403(c) and V.R.A.P. 5(b).  On November 4,
  1994, the trial court ruled that the motion to appeal under Rule 5(b) was
  timely, but that the request and notice of appeal under  7403 were
  untimely because they were filed beyond the seven-day period allowed by
  statute. See  7403(e).  At a later hearing, the court granted the State's
  motion for permission to appeal from both the October 6 and November 4
  rulings.

       Regarding the procedural issue, we agree with the State that the trial
  court erred in concluding that the State's appeal under  7403(c) was
  untimely filed.  Rule 26(a) of the Rules of Appellate Procedure provides
  that V.R.C.P. 6 "applies to the computation of any period of time
  prescribed by these rules, by an order of the court, or by any applicable
  statute."  (Emphasis added.)  Under Rule 6(a), when the period of time
  prescribed by the rule, court order, or applicable statute is less than
  eleven days, intermediate Saturdays, Sundays, and state or federal

 

  legal holidays are excluded from the computation of the time period. 
  In this case, discounting weekend days and holidays, the State's motion and
  notice of appeal under  7403 were filed within seven days, and therefore
  were timely.  Section 7403(e) is plainly an "applicable statute" for
  purposes of the computation of the time period in which an appeal may be
  filed.  Further, applying V.R.A.P. 26(a) and V.R.C.P. 6(a) to  7403 does
  not enlarge or modify any substantive rights provided by law.  See 12
  V.S.A.  1 (Supreme Court rules "shall not abridge, enlarge, or modify any
  substantive rights of any person provided by law").

       Regarding the merits of this appeal, the State contends that the trial
  court's October 6 order exceeds the scope of its authority under Rule
  48(b)(2) and violates the separation-of-powers doctrine by infringing on
  the executive branch's power to charge crimes and to grant pardons. These
  arguments are premature at this point because the trial court has not
  dismissed the prosecution; indeed, in the event defendant's Massachusetts
  convictions are affirmed, the State will have a further opportunity to
  contest defendant's motion to dismiss.

       If and when that day arrives, the trial court will be guided by
  another opinion issued by this Court today, State v. Sauve, No.94Ä670 (Vt.
  Aug. 11, 1995).  We emphasize there that dismissal with prejudice under
  Rule 48(b)(2) over the objection of the prosecutor is appropriate only in
  exceptional cases where fundamental fairness compels such a result.  Id.,
  slip op. at 8; see State v. Echols, 793 P.2d 1066, 1077 (Alaska Ct. App.
  1990) (power to dismiss in furtherance of justice does not allow court to
  invade prosecutor's traditionally exclusive authority to determine which
  charges to bring and how to allocate its resources); Casey v. Superior
  Court, 255 Cal. Rptr. 81, 85 (Ct. App. 1989) (judicial convenience, court
  congestion, or sympathy for defendant's plight cannot justify order of
  dismissal); People v. Doe, 602 N.Y.S.2d 507, 510 (Crim. Ct. 1993)
  (displeasure with State's plea bargain offer cannot justify order of
  dismissal).

       Despite the considerable deference the court must give to the State's
  decision to prosecute in the event the Massachusetts convictions are
  affirmed, we conclude that the State has failed to show that the court
  abused its discretion in delaying proceedings until final disposition of
  the

 

  Massachusetts proceedings.  A motion to continue must be decided on
  the particular facts and circumstances of each individual case, and this
  Court will not interfere with the trial court's ruling if there is a
  reasonable basis to support it.  State v. Ahearn, 137 Vt. 253, 267, 403 A.2d 696, 705 (1979).

       The State argues that the continuance is unreasonable because an
  appeal of the Massachusetts convictions may take two to five years;
  however, the State does not show how it will be prejudiced by further delay
  in a case in which over eight years have already passed since the alleged
  offenses occurred.  The complaining witnesses' testimony in the
  Massachusetts case has been preserved, and the State can obtain further
  testimony by deposition, if need be.  We are not suggesting that trial
  courts should routinely continue cases when appeals are pending in other
  jurisdictions regarding similar charges, but we find a reasonable basis for
  the court's order here. If defendant's Massachusetts convictions are
  reversed, the case may well be remanded for a new trial, which could
  interfere with proceedings in Vermont.  Further, if defendant's convictions
  are affirmed, the parties' unyielding plea bargaining positions may become
  more flexible.

       Affirmed.
                                 FOR THE COURT:



                                 _______________________________________
                                 Associate Justice

 ------------------------------------------------------------------------------
                                Concurring

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609Ä 0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-Ä584


State of Vermont                                  Supreme Court
                                                  On Appeal from 
    v.                                            District Court of Vermont, 
                                                  Unit No. 1, Windham Circuit

John R. Hanlon                                    June Term, 1995


Paul F. Hudson, J.

       Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellant

       Robert Appel, Defender General, and Judith A. Ianelli, Appellate
  Defender, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     ALLEN, C.J., concurring.   I concur in the result.








     _______________________________________
     Chief Justice