gibbons v. state

Vermont Superior Court
Filed 04/2 g4
Essex rut

VERMONT SUPERIOR COURT 1
fl4 CIVIL DIVISION
Essex Unit Case N0. 22-CV-02845
75 Courthouse Drive
Guildhall VT 05905
802-676-3910 fifi
wwwvermontjudjciaryorg

James Gibbons, Jr. v State of Vermont

ENTRY REGARDING MOTION
Title: Motion to Dismiss; Motion for Summaryjudgment Complaint; (Motion: 5; 8)
Filer: James F Gibbons, Jr.; State of VermontVincent Illuzzi
Filed Date: May 12, 2023; February 09, 2024

The motion is GRANTED IN PART and DENIED IN PART.

The present matter is a petition for Post—Conviction Relief filed by Petitioner Gibbons under
13 V.S.A. § 7131 seeking to set aside his plea agreement and sentence in docket number 21—CR—5443

for domestic assault under 13 V.S.A. § 1042.1 Both Petitioner and the State have filed motions for

judgment on the pleadings and exhibits. For the reasons noted below, the Court grants summary

judgment in favor of the State and finds no legal or factual basis to disturb the June 21, 2022 plea
agreement and sentence in this matter.

Undzgguted Material Fact:

Based upon the exhibits and transcripts supplied by the parties, the following facts are

undisputed. Petitioner is a resident of Indiana Who came to Vermont in 2021 at the behest of his
half-sister, Helena Murphy. At the time Ms. Murphy was carrying for her and Petitioner Gibbons’

mother, Helen Haas—Bushong. Ms. Haas-Bushong was in failing health and was dependent at all
times on an oxygen machine that fed a constant flow of oxygen into her lungs. On July 3, 2021, Mr.

Gibbons, while in Ms. Murphy’s home, became enraged. During this moment, Mr. Gibbons
unplugged his mother’s oxygen machine. The disconnection was only momentary as Ms. Murphy

1
Petitioner Gibbons was also charged in the same docket with unlawful mischief under 13 V.S.A. § 3701 for
slashing Ms. Murphy’s tires and breaking a side, rear-view mirror on her car. Mr. Gibbons entered a guilty plea to
this charge on June 21, 2022 at the same plea colloquy as the domestic assault, but he does not challenge this
portion of his plea agreement and sentence.

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22—CV—02845 James Gibbons,Jr. v State of Vermont
was close by. She re-connected the machine and told Mr. Gibbons to leave, locking him out of the
house.
Police were called to the scenes, and the investigating officer took statements that became
the basis for the charging affidavit. These statements included statements from Petitioner’s sister,
Ms. Murphy, and from Petitioner’s mother, Ms. Haas-Bushong. Ms. Murphy detailed that the
incident had begun as an argument over Ms. Hass-Bushong’s life insurance policy, and Petitioner’s
frustration with what funds might be available. She also stated that Ms. Haas-Bushong’s oxygen was
critical to her and that a deprivation of even 45 seconds could be life-threatening. Ms. Bushong
made the statement that she saw Petitioner unplugging her oxygen tube and telling her that he
wanted her to die. On July 7, 2021, the State’s Attorney charged Gibbons with aggravated domestic
assault under 13 V.S.A. § 1043. This charge was a felony and depended, in part, on statements from
Murphy and from Haas-Bushong, and their then-stated belief that Gibbons intentionally unplugged
the oxygen machine and intended to seriously harm or kill Haas-Bushong.
In early June 2022, following discovery and pre-trial process, the parties informed the Court
that they had reached a plea agreement. As part of this plea agreement, the State amended the
information dismissing the felony charge of aggravated domestic assault for a misdemeanor charge
of domestic assault under 13 V.S.A. § 1042.
This change in charges created two differences. First, the penalties for aggravated domestic
assault under Section 1043 include imprisonment up to 15 years and a $25,000 fine. The penalties
for domestic assault under Section 1042 are lower with only up to 18 months imprisonment and a
$5,000 fine. Second, the level of proof required under each charge is different. Under aggravated
domestic assault, the defendant must be shown to have either attempted or caused serious bodily
injury to a family member in a willful or reckless manner. 13 V.S.A. § 1043(a)(1). Under domestic
assault, the defendant must be shown to have attempted or caused bodily injury in a willful or
reckless manner. 13 V.S.A. § 1042.
At the plea colloquy, the Court reviewed the charges and penalties with Defendant and
explored whether he was entering into the plea agreement in a voluntary and intelligent manner.
This process substantially complied with the technical requirements of Rule 11(c) and (d) in
establishing the basis for the charges, the plea agreement, and whether this act was being done
voluntarily. In re Pinheiro, 2008 VT 50, ¶¶ 10, 15 (noting that the Court applies a substantial
compliance standard around V.R.Cr.P. 11(c) and (d) when reviewing plea colloquies).

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Where the plea colloquy became complicated came during the portion where the court
reviewed the factual basis for Petitioner Gibbons’ guilty plea under Rule 11(f). When the State’s
Attorney recited the investigating officer’s affidavit, Petitioner responded in two ways.
First, Petitioner Gibbons disputed whether the affidavit included a statement from his
mother recounting Gibbons’ unplugging of her oxygen tube and telling her that he wanted her to
die. (Ex. B, Plea Trans. at 26: 25–27:20.) Once this statement was confirmed to have been included
in the report, Gibbons dropped his objection and challenge to the statement.2
Second, when asked by the court if he agreed with the factual allegation that he unplugged
his mother’s oxygen tubes, Gibbons resisted answering the question. He denied remembering the
incident, stated that the charge was B.S., but he eventually reconciled himself to the allegation and
admitted to the act and plead guilty. (Id. at 28:14–31:9.)
After the entry of the plea colloquy, the Court allowed Ms. Murphy to address the court in
what was intended as a victim impact statement. Instead, Ms. Murphy stated that she did not believe
Petitioner intended to kill or harm his mother. She stated that the oxygen lines were unplugged for
less than a minute; that there was no harm done; and that Ms. Haas-Bushong was not even aware of
the disconnection. Ms. Murphy stated a strong disagreement with prosecution of her brother and
felt it was a travesty of justice since she attributed his actions to stress, emotion, and possible
emerging mental health issues. (Id. at 32:8–36:17).
After Ms. Murphy’s statements, the Court then entered a sentence against Petitioner that
consisted of 18 months with 340 days credit for time served, and the remainder suspended. No
monetary fine was imposed, and no restitution ordered.
Legal Analysis
Petitioner’s primary arguments in this PCR are two-fold. First, he contends that Ms.
Murphy’s statements to the Court demonstrated that he was not guilty and should have nullified the
plea agreement. Second, he asserts that his defense attorney provided ineffective assistance of
counsel in failing to discovery Ms. Murphy’s statements prior to the plea agreement and for failing to
use Ms. Murphy’s statements as a basis to set aside the plea agreement and charges.
The standard of review in considering a challenge to a voluntary plea agreement is to
determine whether by a preponderance of the evidence there were fundamental errors that rendered

2 Between the incident and the date of the plea agreement, Ms. Haas-Bushong had passed away. It is not known if

there had been a preservation deposition or other record of her statements outside of the officer’s affidavit.

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the conviction defective. State v. Bowen, 2018 VT 87, ¶7. Under Rule 11(f), the Court must be
persuaded that the charge was factually supported. In re Bridger, 2017 VT 79 ¶¶ 20–23. There must
be an “adequate factual basis” sufficient to demonstrate voluntariness. Id. at ¶ 21.
In this case, there is no reasonable dispute about the following: (1) Petitioner and Ms. Haas-
Bushong were family members. (2) on July 3, 2021, Petitioner was at Ms. Murphy’s house where
Ms. Haas-Bushong was residing. (3) Ms. Haas-Bushong relied on oxygen supplied to her through a
machine and without this supplemental oxygen, she would quickly expire or suffer harm withing 45
seconds. (4) On July 3, 2021, Petitioner disconnected Ms. Haas-Bushong’s oxyen tube. (5) He did
not disconnect this tube by accident. (6) Ms. Murphy became aware of Petitioner’s action and
reconnected Ms. Haas-Bushong’s oxygen tube and kicked Petitioner out of the house.
Neither Petitioner’s uncertainty, nor Ms. Murphy’s post-plea statements alter these facts or
call them into serious question. While Ms. Murphy’s statements do contradict portions of the
arresting officer’s affidavit, the issues are not relevant to the charges under 13 V.S.A. § 1042. Under
this statute, the state need only provide that Petitioner acted in either a willful or reckless manner to
cause or attempt to cause bodily harm to a family member. The fact that Ms. Haas-Bushing might
not have been immediately aware of the harm or threat to her oxygen is irrelevant. Similarly, the
fact that Petitioner did not intend to kill or seriously hurt Ms. Haas-Bushing is not necessary to the
charge. The level of intent necessary to establish domestic assault is either intentional or reckless.
Under the facts, there was sufficient evidence to show that, at the very least, the act of disconnecting
his mother’s oxygen was a reckless action because it was all but certain to lead to harm and would
have but for the intervention of Ms. Murphy. Under Vermont law an action taken that consciously
disregards a substantial and unjustifiable risk constitutes reckless and satisfies the standard. State bv.
Harrington , 174 Vt. 584, 585 (2002) (affirming conviction for domestic assault under reckless
standard where defendant swung his hand at the victim “—regardless of whether he intended to
strike the blow”). In this case, the evidence—including Ms. Murphy’s statement—is that Petitioner
pulled his mother’s oxygen tube, such an action disregarded the substantial and unjustifiable risk that
she would sustain harm from deprivation of her supplemental oxygen supply.3 On this basis, the
Court is persuaded that was more than sufficient evidence for the plea agreement and that the court

3 Thus, even to the extent that Ms. Murphy’s statements in the plea agreement hearing were considered new

evidence, the information is insufficient to undermine the adequate factual basis of Petitioner’s guilty plea.

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complied with its obligation under V.R.Cr.P. 11(f). For these reasons, the State is entitled to
summary judgment on Petitioner’s Rule 11(f) challenge in his present PCR.
The remaining question centers on whether Petitioner’s attorney provided effective
assistance of counsel in reaching this plea agreement. The Vermont Supreme Court has held that an
ineffective assistance of counsel claim must show that counsel’s performance was not only deficient,
but that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
proceedings would have resulted in a different outcome.” In re Kolts, 2024 VT 1, ¶ 14 (quoting In re
Grega, 2003 VT 77, ¶ 7). In the present case, Petitioner’s argument against counsel mirrors his
challenges to the plea agreement. The allegation is that his defense counsel did not prepare for or
seize upon Ms. Murphy’s statements. Nothing in the record suggests a different outcome. As noted
above, Ms. Murphy’s statements only confirm that Petitioner was the one who pulled his mother’s
oxygen tube. While Ms. Murphy’s statements might suggest that Petitioner’s actions were not
entirely willful, they do not alter the finding that they were reckless and caused harm. As such,
Petitioner cannot point any preponderance of the evidence to suggest a different outcome but for
the actions or inactions of his attorney.
To the extent that Petitioner seeks to introduce the possibility that he could have
successfully defended against the charges if he had gone to trial, this is pure speculation and outside
the scope of this Court’s review. In re Kolts, 2024 VT 1, at ¶¶ 20–22 (consideration of potential
outcomes—including trial where petitioner elected for a plea agreement is improper). For these
reasons, Petitioner’s ineffective assistance of counsel claims are Denied.
ORDER
Based on the foregoing, Petitioner’s motion for summary judgment is Denied. The State’s
cross motion for judgment is Granted. The plea agreement and sentence are affirmed, and the
present PCR petition is Dismissed.
Electronically signed on 4/22/2024 3:31 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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