Burke v. Deml

Termont Superior Court
Filed 10/25/24
Washington Unit

SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 23-CV-02801
65 State Street
Montpelier VT 05602
802-828-2091 ar

www.vermontjudiciary.org

James Burke v Nicholas Deml et al

Opinion and Order Following Trial

This matter came before the court for hearing on Plaintiff's complaint seeking

recalculation of his sentence by the Department of Corrections (DOC). Plaintiff was

present and represented himself. The Defendants were present and were

represented by Assistant Attorney General Menzel. The Court held a hearing at

which both Plaintiff and a witness from the DOC, Ms. Bevins, testified. The Court

makes the following determinations.

Findings of Fact

There is little disagreement regarding the facts of this matter. Plaintiff was

arrested in Washington state on May 24, 2005, pursuant to a Vermont arrest

warrant. Exhibit A. The arrest warrant was issued in Dockets 3905-7-04 CNCR, a

felony docket, and Docket 5956-10-01 CNCR, which was a case alleging a violation

of probation. The arrest warrant provided for $100,000 bail on the former offense

and that the Plaintiff would be held without bail on the latter offense.

Plaintiff returned to Vermont and was prosecuted on those dockets.

Additionally, he was prosecuted under Dockets 6303-11-03 CNCR and 6304-11-03

CNCR, which were both misdemeanor offenses.
1
Plaintiff was tried and convicted on the misdemeanor dockets and was

sanctioned with additional time for contempt of court on October 2, 2006. He was

given a sentence of 21 months and 118 days to 24 months and 120 days. Exhibit F.

Initially, he was not given credit for the time between when he was arrested

and jailed in Washington state and his return to Vermont in October 2005. In

February 2007, however, the sentencing court issued an amended mittimus giving

him credit for the 141 days he was initially in custody following his arrest. In

March 2007, DOC afforded that credit to him on the matters that he was

incarcerated for on October 2, 2006.

In 2007, Plaintiff was sentenced on other charges that ran concurrently with

the above charges.

Plaintiff finished serving his sentences on the above matters in 2009. He

remained in jail, however, as he continued to be subject to bail in felony Docket

3905-07-04 CNCR. As a result, there was a lengthy period where he was being held

on multiple charges and dockets from his original arrest going forward.

In October 2010, following a conviction by a jury, he was sentenced in Docket

3905-07-04 CNCR. As noted, he had been held on the original $100,000 bail on that

charge since his arrest in Washington in 2005. The sentencing court did not specify

whether the sentence in Docket 3905 was to run consecutive to or concurrently to

the ones on which he had previously been found guilty and had served time while

Docket 3905 was pending.

2
Under such circumstances, the DOC presumed the sentencing mittimus to

run concurrently to the prior sentences. It performed a sentencing calculation that

placed Plaintiff’s minimum release date at October 14, 2023, thereby giving him

“double credit” for the time when the prior sentences overlapped with Docket 3905.

Subsequently, in early 2012, Plaintiff entered into a plea agreement

regarding Dockets 3905 and 173-7-04 CNCR. The Court record from Docket 39051

indicates that, as part of that agreement, Plaintiff agreed that the sentence issued

in October 2010 would be amended to correct a “clerical error” and to confirm that

the sentence in Docket 3905 was to run consecutive to Plaintiff’s prior cases. The

Docket states:

Entry Order: As part of plea agreement parties agree to amend
sentence on this docket as part of clerical error so that deft’s
sentence on this docket will run cons. to 6303/4-11-03Cncr;5956-10-01
Cncr;4417-8-03Cncr;5040-8-01Cncr.
Sentence Amended on dispute 1: to serve 18 year(s) to 20 year(s)
cons. to 6303/4;5956;4417; cons. to 5040.
Sentence on dispute 1 to start on 10/11/10 per Judge James R. Crucitti.
Docket 3905-7-04(sexual assault) will be consecutive to the following
dockets: 6303-11-03Cncr; 6304-11-03Cncr;5956-11-01Cncr;4417-8-
03Cncr;5040-8-01 Cncr Amended Mittimus to Commissioner of
Corrections issued.

Thereafter, DOC received the amended sentencing mittimus in Docket 3905.

Based on the clarification that the 2010 sentence in that docket was to run

consecutively to Plaintiff’s other dockets, DOC recalculated his sentence. Exhibits

1
At trial, Plaintiff agreed that the Court could review and take note of the docket
record in Docket 3905. It has performed that review. As a result of that
examination and the entry noted in text, the Court has no need to rule on
Defendant’s request for the Court to take judicial notice of additional records in
Docket 173-1-07 CNCR.
3
A, B, and E. As a result of that recalculation, Plaintiff no longer received credit in

Docket 3905 for the period of his incarceration that overlapped with his prior

sentences. Accordingly, DOC deducted 1,818 days of credit and changed Plaintiff’s

minimum release date to the summer of 2031.

Analysis

Vt. R. Civ. P. 75. allows limited judicial review of governmental

administrative decisions, but only “if such review is otherwise available by law.”

The Vermont Supreme Court has interpreted this provision to mean that review is

allowable if it “is provided by the particular statute establishing an agency,” or falls

under one of the common law writs, namely: certiorari, mandamus, or prohibition.

Rheaume v. Pallito, 2011 VT 72, ¶¶ 9–10, 190 Vt. 245, 250. Here, as there is no

statutory right to review, this Court has jurisdiction only if one of those writs is

applicable.

Review under a writ of certiorari allows judicial examination of decisions

taken by public officers that are quasi-judicial in nature. The DOC’s actions in this

instance are not reviewable under certiorari because, in calculating Plaintiff’s

sentences, the DOC is not acting in a quasi-judicial capacity – i.e., as a court.

Instead, it is fulfilling its duties under 13 V.S.A. §§ 7030–7045, to calculate a

prisoner’s effective sentence. Like the programming decisions at issue in Rheaume,

sentence calculation simply is not quasi-judicial in nature. See Rheaume, 2011 VT

72, ¶ 10, 190 Vt. at 250 (DOC is not “performing the functions of a quasi-judicial

body when it establishes programming requirements.).

4
Nor is review available in this instance under a writ of prohibition. “The

function of a writ of prohibition is to prevent the unlawful assumption of

jurisdiction by a tribunal contrary to common law or statutory provisions.” In re

Mattison, 120 Vt. 459, 463 (1958). Prohibition is plainly inapplicable here because

the Department has the responsibility to perform sentence calculations. Cf. Ala v.

Pallito, No. 2013–434, 2014 WL 3714892, at *1 (June 2014) (unpub. mem.)

(Department’s conduct in dispensing medications within its authority and not

reviewable under writ of prohibition); Rheaume, 2011 VT 72, ¶ 6, 190 Vt. at 249

(“There is no question that the structuring of programming requirements is within

the agency purview of the [Department]; thus Rule 75 review cannot be derived

from this writ.”).

Plaintiff’s only possible avenue of review is pursuant to a writ of mandamus.

Mandamus is a remedy wherein the Court “require[s] a public officer to perform a

simple and definite ministerial duty imposed by law.” Sagar v. Warren Selectboard,

170 Vt. 167, 171 (1999). For it to apply, there must be a statutory limitation on the

Department’s discretion. See Rheaume, 2011 VT 72, ¶¶ 9–10, 190 Vt. at 250.

The Supreme Court has indicated that, at least some, sentencing calculation

errors are reviewable pursuant to Rule 75. See, e.g., State v. Young, 2007 VT 30, ¶

4, 181 Vt. 603, 604. Although it did not link those cases to a particular common-law

writ, the Court presumes the High Court was focused on the writ of mandamus.

The Court believes DOC has no discretion to fail to follow the dictates of a

sentencing mitimus, to make a calculation error, or to not afford an inmate proper

5
credit in light of such evidence and governing law. The Court will proceed to

consider Plaintiff’s claim on that basis.

Given the above, Plaintiff’s claims are easily addressed. First, the evidence

convincingly shows that DOC afforded Plaintiff full credit for the time between

when he was arrested in Washington and returned to Vermont. Ms. Bevins and the

records submitted by DOC support that conclusion.

Second, Ms. Bevins’ testimony and the DOC records also show that DOC has

correctly calculated Plaintiff’s sentence in accord with the amended sentencing

mittimus issued by the Chittenden County Criminal Division in Docket 3905-07-04

CNCR. Vermont law is clear that, where consecutive sentences are involved, a

prisoner does not get to “double count” his days served on overlapping sentences

against both sentences. 13 V.S.A. § 7031(b)(1). In this case, for a period of time,

Plaintiff was in jail under his prior sentences and was also being held under Docket

3905. When the Court sentenced him consecutively on that docket, many of those

days, as a matter of law, counted only towards his prior sentences. Id.

As the Supreme Court has stated:

the crucial factor … is whether the earlier and later sentences are to be
served concurrently or consecutively…. [G]iven that defendant’s
convictions on the second set of charges were imposed consecutively to
his initial sentence, he was not entitled to double credit for the time he
was incarcerated following his arrest on the second set of charges ….

State v. Aubuchon, 2014 VT 12, ¶ 26, 195 Vt. 571, 585–86; see State v. Blondin, 164

Vt. 55, 64 (1995).

6
Plaintiff’s arguments against that result are actually quarrels with the

amended sentencing mittimus that ordered the sentences to be calculated

consecutively. He makes general legal arguments that allowing his prior

convictions—the sentences for which concluded in 2009–to be “brought back to life”

amounts to double jeopardy, or violates the Common Benefits Clause, or the Fifth

Amendment, or the Eighth Amendment, or Due Process. None of these arguments

is supported by controlling case law offered by Plaintiff. Plaintiff has not been twice

put in jeopardy or otherwise mistreated in a constitutional sense when a court

determines whether a sentence should run concurrently or consecutively. The

2010–11 sentencing determined only how the sentence for Docket 3905 was to be

computed and did not impact Plaintiff’s prior sentences. Accepting Plaintiff’s

argument would mean that the sentencing court in Docket 3905 could only have

imposed a concurrent sentence. That is not the law.

Additionally, such concerns are raised in the wrong proceeding. The scope of

this mandamus action is to determine whether DOC acted according to the relevant

sentencing mittimuses and controlling law in calculating Plaintiff’s sentence. It did

so. To the extent Plaintiff maintains that the Court’s decision to amend his

sentencing mittimus to make his 2010–11 sentences consecutive somehow violated

the law, that argument needs to be raised in a post-conviction proceeding where

such matters can be investigated and adjudicated.

Even if this were the appropriate forum, the Court would conclude that

Plaintiff has not established his claim in that regard. First, the Court finds that

7
such an assertion would be barred by res judicata. Plaintiff attempted to vacate the

plea agreement that resulted in the amended mittiumus on direct appeal, which

was denied. State v. Burke, No. 2012-111, 2012 WL 6633704 (Vt. Dec. 13, 2012)

(unpub. mem.). He also attempted to vacate it in a later post-conviction proceeding,

which was dismissed based on grounds of res judicata. In re James T. Burke, No.

23-AP-020 (Vt. July 21, 2023) (unpub. mem.). A third attempt in this action would

also be barred by claim preclusion. See State v. Carroll, 171 Vt. 395, 397–98 (2000)

(“Res judicata, or claim preclusion, generally bars the litigation of a claim if there exists an

earlier final judgment in which the parties, subject matter and causes of action are

identical or substantially identical.” (internal quotation omitted)).

Second, even ignoring that bar, Plaintiff has put forth no grounds for or

argument why the plea agreement should be invalidated or interpreted differently.

Plaintiff did not offer in evidence the actual plea agreement in support of his claims.

Indeed, at trial, Plaintiff indicated a lack of memory of such an agreement.

WHEREFORE, the Court concludes that DOC has properly calculated

Plaintiff’s sentence based on the sentencing mittimuses issued by the sentencing

courts. In sum, there were periods where Plaintiff was serving time on dockets

3905-1-04 CNCR (and 173-1-07 CNCR2), and on his prior dockets. The sentencing

mittimus for the Docket 3905 directed that such time would count only towards the

prior dockets. The DOC’s calculations were accurate.

2
The Exhibits show that the sentence in Docket 173 was to run consecutively to
Docket 3905. Plaintiff does not contest that aspect of the computation.
8
Accordingly, Plaintiff’s claims are denied.

Electronically signed on Friday, October 25, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

9