State v. Nicholas Sweet

ENTRY ORDER
SUPREME COURT DOCKET NO. 2021-066
MARCH TERM, 2021
State of Vermont v. Nicholas Sweet* } APPEALED FROM:
}
} Superior Court, Rutland Unit
} Criminal Division
}
} DOCKET NO. 98-1-18 Rdcr
In the above-entitled cause, the Clerk will enter:
Defendant seeks permission to appeal the trial court’s order denying his motion to continue
his violation-of-probation (VOP) merits hearing until after trial in the associated criminal dockets.
The motion is denied for the reasons set forth below.
In April 2019, defendant was sentenced to twelve-to-thirty-six months, all suspended with
a two-year term of probation, for convictions of unlawful trespass, unlawful mischief, simple
assault, and interference with access to emergency services. One of defendant’s probation
conditions prohibited contact with his brother, who was a victim of those crimes. In June 2020,
defendant was arrested for multiple violations of an abuse prevention order as well as domestic
assault of his girlfriend. In July 2020, defendant was arrested again for domestic assault and simple
assault against his brother, his brother’s girlfriend, and his mother. These incidents led to two
VOP complaints against defendant. He was released with additional conditions. The State
indicated that it planned to seek revocation of probation at the VOP merits hearing, which was
initially set for February 18, 2021. Defendant filed a motion to continue the VOP merits hearing
until after the criminal trial(s) on the 2020 charges took place, citing the preference expressed for
such a procedure in State v. Begins, 147 Vt. 295 (1986).
The trial court denied defendant’s motion, concluding that delaying the VOP hearing would
be detrimental to public safety because defendant had assaulted two people while on probation,
including his brother, whom he was prohibited from contacting. The court also concluded that a
continuance would result in undue delay because the hearing had already been delayed for eight
months and there was little likelihood that the criminal trial(s) would occur soon. It rescheduled
the VOP merits hearing for April 13, 2021. The trial court subsequently denied defendant’s request
for permission to appeal under V.R.A.P. 5.1., concluding that the order met the criteria for a
collateral final order appeal but that this was not the rare case where an appeal was necessary to
prevent injustice.
Defendant argues that this Court should accept the appeal and review the trial court’s
decision to deny the continuance. He contends that if the trial court conducts the VOP merits
hearing now and probation is revoked, he will be incarcerated for longer than his minimum
sentence on his original convictions, and will not be eligible for programming, due to his pending

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criminal charges. He argues that because the pandemic has delayed criminal trials indefinitely, he
will be incarcerated for longer than he otherwise would have been. He argues that Begins, which
gives the trial court discretion to hold a VOP merits hearing before an associated criminal trial to
protect the probationer or public safety but prevents the State from using the probationer’s
testimony at a subsequent trial, is insufficient to protect his due process rights under current
circumstances.
We agree that the order defendant seeks to appeal conclusively determined a disputed
question that was completely separate from the merits—i.e., whether the revocation hearing would
be held before trial—and the order would be effectively unreviewable from a final judgment. See
V.R.A.P. 5.1 (listing criteria for collateral final order). However, the trial court did not abuse its
discretion in denying permission to appeal under V.R.A.P. 5.1. “The collateral order doctrine
creates a limited, discretionary exception to the normal final judgment rule. It offers appellate
redress in the small number of extraordinary cases where the normal appellate route will almost
surely work injustice, irrespective of this Court’s final decision.” In re F.E.F., 156 Vt. 503, 507
(1991) (quotation omitted). As the trial court found, the State still has to prove the merits of the
VOPs and it is not certain that probation will be revoked or that defendant will be incarcerated. It
is therefore not clear that the normal appellate route “will almost surely work injustice.” Id. On
the other hand, the court found that defendant posed a threat to public safety and that the case had
already suffered from extensive delays. Under these circumstances, the court acted within its
discretion in denying permission to appeal.
Defendant alternatively argues that the Court should accept his appeal as a petition for
extraordinary relief. He argues that the Court should reconsider Begins, claiming that it is
inadequate to protect his rights during the pandemic because it presumed a timely jury trial, which
is unlikely to occur. Alternatively, he argues that the Court should find that the trial court abused
its discretion in denying his motion to continue the VOP merits hearing until after the criminal
trials.
Extraordinary relief is limited to situations where there is no adequate remedy by appeal or
by filing for extraordinary relief in the superior court. V.R.A.P. 21(b); In re Search Warrant, 2012
VT 102, ¶ 9, 193 Vt. 51. Defendant has not petitioned the superior court for extraordinary relief
or alleged that extraordinary relief is not available in the superior court. This fact alone would
ordinarily be a sufficient basis to deny the petition. See Byrd v. Kehoe, 136 Vt. 204, 205 (1978)
(dismissing petition for extraordinary relief where appellant failed to file complaint first in superior
court or show that no adequate remedy is available in superior court).
To avoid further delay below, however, we consider the merits of the petition. The decision
whether to grant a petition for extraordinary relief “is largely discretionary according to the merits
of the case made by the petition and the record.” Pfeil v. Rutland Dist. Ct., 147 Vt. 305, 308
(1986). The relief sought here is in the nature of certiorari, because defendant seeks to review a
discretionary decision rather than to enforce a simple ministerial duty. State v. Forte, 159 Vt. 550,
554 (1993) (explaining that “purpose of certiorari is to review judicial action of inferior courts and
tribunals in regard to substantial questions of law affecting the merits of the case,” while “purpose
of mandamus is to enforce a simple and definite duty, imposed by law, and arising under conditions
admitted or proved to exist”); see State v. Roy, 2018 VT 67A, ¶ 18, 209 Vt. 133 (explaining that

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V.R.A.P. 21 replaces common-law extraordinary writs of certiorari, mandamus, prohibition, and
quo warranto). We have suggested that the Court will grant certiorari-type relief only when there
is a lack of jurisdiction, an act outside of jurisdiction, or the proceedings are erroneous on the face
of the record. See Roy, 2018 VT 67A, ¶ 26 (citing State v. Dawson, 38 S.W.3d 319, 325 (Ark.
2001)); Rhodes v. Town of Woodstock, 132 Vt. 323, 325, (1974) (stating certiorari “may not be
used as a substitute for an appeal to correct mere errors in the exercise of a lawful jurisdiction”).
Here, the trial court plainly had jurisdiction over the proceeding below and had the power
to deny the requested continuance. Its decision to deny the continuance is not facially erroneous
under Begins and does not threaten important public interests or the integrity of the justice system.
See Roy, 2018 VT 67A (declining to grant State’s request for extraordinary relief from trial court’s
post-verdict judgment of acquittal because trial court’s legal conclusion, though erroneous, was
within its jurisdiction, and case did not involve especially shocking conduct or risks to public
safety); Burton v. Town of Springfield, 124 Vt. 502, 505 (1965) (stating writ of certiorari is
discretionary and “will not lie where the action of the tribunal sought to be reviewed is correct”).
Accordingly, this case does not fall within the narrow category of cases meriting extraordinary
relief.
Defendant’s motion for permission to appeal under V.R.A.P. 5.1 or V.R.A.P. 21 is denied,
and the appeal is dismissed.
BY THE COURT:
Paul L. Reiber, Chief Justice
Beth Robinson, Associate Justice
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice