manning v. state ( 2024 )

STATE OF VERMONT |
SUPERIOR COURT Wait Oe CIVIL DIVISION
Washington Unit EC -3 P SndGcet No. 75-2-17 Wnev
JAMES MANNING
Petitioner .
v.
STATE OF VERMONT
Respondent
DECISION
Petitioner’s Application for Postconviction Relief
This matter came before the court for final evidentiary hearing on August 10,
2018. Petitioner James Manning was present and was represented by Attorney Emily
Tredeau. The State was represented by Adam Korn, authorized intern supervised by
Attorneys Bram Kranichfeld and Ultan Doyle.
Petitioner seeks relief from several convictions to which he pled guilty in 2014.
He asserts violations of “rights to due process and effective assistance of counsel.” The
due process claim appears to be based on a lack of voluntariness of the plea based on
misinformation about his chances of early release.
Findings of Fact
The court finds the following facts based on a preponderance of the evidence.
James Manning grew up in Burlington but was living in Barre at the time of
events giving rise to criminal charges. He was 21 years old and the leader of a group of
14 to 15-year-olds in Barre that called itself the Brotherhood Mafia. The members
engaged in acts of vandalism in the community and engaged in sexual conduct. Mr.
Manning engaged in sexual acts with many of the youths. Although he was 21, his
developmental level was later identified during an evaluation as being comparable to that
of the adolescents in the group.
In January of 2013, he was. charged with six counts of sexual assault of persons
under the age of 16 as well as other crimes. These were serious charges. If convicted on
all counts, the minimum sentence would be 14 years, The following month, Attorney
James LaMonda was assigned as his attorney under an assigned counsel contract.
Mr. LaMonda engaged in discovery and deposed four of the witnesses. He
concluded that although Mr. Manning acknowledged sexual conduct with several people
under age 16, the State’s case had weaknesses. Specifically, some of the witnesses were
not reliable and gave inconsistent accounts of what had happened or had other problems
with credibility. Moreover, the State had alleged that Mr.. Manning had used physical
force in connection with assaults, and he concluded that although the victims were not
old enough to consent to sexual activity and any conduct was a crime, there were
indications that the nature of the activities had, at least to some degree, involved
adolescent sexual exploration rather than coercive force. He wrote a letter to the
prosecuting attorney laying out such weaknesses and his position that discovery evidence
did not support the accusations in full and seeking discussion about a possible plea
bargain.
A few years before, the Legislature had enacted a statute providing for what
became known as the “70% Rule.” See 28 V.S.A. § 204b (“A person who is sentenced to -
an incarcerative sentence for a violation of any of the offenses listed in subsection
204a(a) of this title and who is designated by the Department of Corrections as high-risk
‘pursuant to 13 V.S.A. §.5411b while serving his or her sentence shall not be eligible for
parole, furlough, or any other type of early release until the expiration of 70 percent of his
or her maximum sentence.”). The rule would potentially apply to Mr. Manning as the
charged crimes were listed offenses. The applicability of the rule to Mr. Manning was a
serious consideration and important factor in addressing how to proceed. This was the
first case in which Mr. LaMonda had occasion to deal with the 70% Rule, and he sought
advice from more experienced counsel. He was very aware of its possible impact on the
amount of time Mr, Manning would serve under any sentence, whether as a result of trial
or plea.
At the same time that Mr. LaMonda represented Mr. Manning in the Washington
County case, Mr. Manning also had pending charges out of Rutland County. Mr.
LaMonda did not represent him in that case, but the attorneys had joint conversations,
and he understood that the Rutland case was likely to add 5 years to any sentence
resulting from the Barre charges.
Plea discussions resulted in an agreement for pleas and a sentence of 5—20 years.
This was considerably less than the maximum exposure, and the outcome of trials. was . .
_ hard to predict given the witnesses and nature of the evidence. The amount of actual time
Mr. Manning would spend in jail was dependent on the risk assessment level DOC would
assign to him and the applicability of the 70% Rule, and he had not yet been evaluated.
Because the difference in possible minimum sentences between the plea agreement terms
and maximum exposure was significant (5 years vs. 14 years), Mr. LaMonda was
confident that if the post-plea evaluation resulted in a high-risk determination, Mr.
Manning would be able to withdraw his plea and reconsider his options. Mr. LaMonda
had never seen a judge refuse to allow a withdrawal under that type of circumstance. Mr.
Manning understood from Mr. LaMonda that if he committed a new crime, his risk level
designation could be high and he could be subject to the 70% Rule.
On May 12, 2014, Mr. Manning entered pleas consistent with the plea agreement.
At the time he entered the pleas, Mr. Manning was interested in being able to do
programming to address his sexual conduct and in being eligible for release as close as’
possible to his minimum sentence. He intended to follow prison rules and become
eligible for release as soon as possible. He understood that there were no guarantees
about when he could be released on parole or any other status, but he hoped to have “a
shot” at getting out as soon as possible and engaging in programming. He had talked
with Mr. LaMonda and understood that once he received'a risk level designation, DOC.
could change it later if he reoffended. At the time of the plea, he had not yet received a
’ risk level designation. At the plea hearing, Mr. LaMonda asked for the risk assessment to
be completed prior to sentencing. As a result of the pleas, an evaluation was ordered with
a sentencing to occur at a later date.
Between the time of the plea hearing and the sentencing 3 % months later, several
things happened., The psychosexual evaluation was completed by Dr. Gilligan and Mr.
Manning’s likelihood of recidivism was determined to be ‘moderate to high.’ However,
the DOC assessed his risk level at ‘low to moderate’ based on the fact that his crimes had
all occurred in a “cluster.” This was good news for Mr. Manning and Mr. LaMonda, as it
meant that the 70% Rule was not certain to be applied and he had a chance at being
released close to the 5-year minimum, possibly at 4 % years on furlough,
Mr. LaMonda discussed the situation with Susan Wells, the DOC officer who was
expected to be the one supervising Mr. Manning’s case. Mr. LaMonda understood from
her that if Mr. Manning were to reoffend, then his risk level could change, and the 70%
Rule could then become applicable. Mr. LaMonda advised Mr. Manning of this.
Mr. LaMonda testified at the PCR hearing that he understood the risk level could
not change based on any conduct that DOC knew about at time of sentencing, but only
based on post-sentencing conduct. He says he advised Mr. Manning of this, as the
possible application of the 70% Rule was a significant factor in the situation. Mr.
Manning testified at the PCR hearing that he believed that his risk level could change
only if he were convicted of a new crime.
There is no clear evidence about exactly what Mr. LaMonda told Mr. Manning
between the plea and sentencing. Mr. LaMonda’s account at the PCR hearing of his
understandings and beliefs four years prior does not provide sufficiently clear evidence of
exactly what was said, and neither does Mr. Manning’s testimony at the PCR hearing
about his “belief” at the time of the court events four years prior.
Between the plea hearing and the sentencing hearing, Mr. Manning was
investigated for violating prison rules by engaging in oral sex with another inmate. He
acknowledged the conduct. He discussed it with Mr. LaMonda, whose view was that it
should not change his risk level as long as it occurred before sentencing and DOC knew
about it and did not change his risk level before sentencing,
On August 14, before the sentencing hearing, Mr. Manning was accused of a
disciplinary violation (DR) for the incident of oral sex with another inmate, which was
against prison rules. On August 27, still before sentencing, he waived a hearing and |
admitted the violation and the violation was found, resulting ina DR. He has never been
charged with a crime based on the underlying conduct, although it appears that the
conduct may qualify as a crime. .
The sentencing hearing took place the next day, August 28". Susan Wells
testified. When asked about a possible increase in the risk level designation she testified
as follows:
Well, his [sic] after the preponderance of the PSI was done, I’m on the
high-risk committee, and two other high-risk committee members, we
reviewed all of the information including the psychosexual, and it was
determined that he would not be at this point considered high risk, because
all of his offenses, all of these victims, even though there are many of
them, they’re a cluster. He’d never been formally sanctioned. As no one
ever said to him, Mr. Manning, that is not right. So there are cluster
events. So therefore it didn’t—there isn’t like one index and all of these
priors. It’s just one cluster. So at this point in the game, he doesn’t meet
criteria for a high-risk designation.”
If he was to sexually reoffend, new behavior, new victim, past—post-
sentencing, he would—or if he was to be found the perpetrator in a prison
rape enforcement act investigation, that could conceivably change his
high-risk designation. It would be reviewed again. If he was to reoffend,
he could have the seventy percent rule imposed.
Sentencing Hearing Transcript 19-20 (Aug. 28, 2014). Mr. LaMonda testified that he
interpreted this to mean that the risk level could only change after sentencing if DOC
learned about something it did not already know about, i.e. “post... sentencing.” At the
PCR hearing, he testified that he considered that DOC “knew” about the DR for sexual
conduct because of the DR finding the day before. The fact of the August 27" DR, or
when the high-risk committee made the non-high risk determination in relation to the
August 27" DR, were never mentioned by anyone at the sentencing hearing. There was
no mention of whether the risk designation could change as a result of the August 27"
DR or the underlying conduct on which it was based.
Five and a half months after sentencing, on February 18, 2015, DOC sent Mr.
Manning a letter stating that his risk level had been changed to high risk. This was based
on the August pre-sentencing incident and resulted in the invocation of the 70% Rule
with the result that he would serve considerably more time than he had hoped.
Mr. Manning testified at the PCR hearing that if he had known, at the time of
entering his plea, that his risk level could go up based on something other than a crime,
he would not have entered pleas that carried the possibility of a 14-year minimum.
Mr. LaMonda testified at the PCR hearing that if Mr. Manning’s presentencing
DOC risk evaluation had been high, he would have moved to withdraw the plea prior to a
sentencing hearing. Mr. LaMonda also testified that if the risk level designation had been
changed from low risk to high risk at time of sentencing, he would have moved to
withdraw the plea, and he would have sought to renegotiate a new plea or go to trial.
There is no way to know whether either of those options would have resulted in an
outcome with more or less time incarcerated than would occur with the 70% Rule applied
to the sentence resulting from the negotiated plea. It was not clear to Mr. LaMonda that a
5—20 year sentence with the application of the 70% Rule was the best outcome that could
be obtained.
Conclusions of Law
The thrust of Mr. Manning’s PCR claim is that he reasonably relied on objectively
wrong information about the 70% Rule in deciding to plead guilty to listed offenses. !
The assertedly wrong information was that the 70% Rule would not be applied to him,
regardless of the listed offenses to which he was pleading, unless he committed a new
offense after his sentencing was complete. The criminal court accepted his plea and he
began serving his agreed upon sentence, Later, the DOC designated him high risk, and
therefore applied the 70% Rule to him, due to sexual misconduct he admittedly engaged
in while incarcerated between his change of plea and sentencing hearings. He generally
characterizes his claim as both ineffectiveness of counsel and involuntariness as to his
plea,
Ineffective assistance
A petitioner seeking to establish ineffective assistance of counsel must first show
that “counsel’s performance fell below an objective standard of reasonableness informed
by prevailing professional norms.” State v. Judkins, 161 Vt. 593, 595 (1993). This
showing usually must be supported by expert testimony. Jn re Grega, 2003 VT 77, J 16,
175 Vt. 631. “A petitioner must then show actual prejudice—a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Judkins, 161 Vt. at 595 (citation omitted). .
There was simply no evidence presented to establish the standard of conduct for
an attorney at either the initial plea colloquy hearing or the later sentencing or the period
in between. The petitioner has not proved ineffective assistance of counsel.
' The plea agreement contemplated a specific sentence with no sentencing discretion for
the criminal court but for the court to accept or reject the agreement. Mr. Manning
entered his plea of guilty at the May 12, 2014 change of plea hearing. The criminal court
accepted his plea at his “sentencing” hearing on August 28, 2014.
Involuntariness based on misinformation
“[Ml]isinformation regarding [eligibility for early release] may provide a basis for
a successful attack on the voluntariness of a plea. At a post-conviction relief hearing,
petitioner has the burden of demonstrating that he entered his plea while reasonably
relying on a material misunderstanding regarding his [eligibility for early release], and
that such misunderstanding worked to his prejudice. To support withdrawal of the plea,
the misunderstanding must be more than a ‘subjective mistake absent some objective
evidence reasonably justifying the mistake.’ ‘[O]therwise every plea would be subject to
successful attack.’ Petitioner must refer to specific circumstances and persons to support
his testimony regarding the alleged misunderstanding.” In re Moulton, 158 Vt. 580, 584
(1992) (citations omitted).
The so-called 70% Rule appears at 13 V.S.A. § 5411b (the high-risk designation)
and 28 V.S.A. § 204b (the 70% consequence). It permits the DOC to designate an inmate
sentenced to incarceration for a listed offense a high-risk sex offender. So long ashe .
remains so designated, the consequence is that he “shall not be eligible for parole,
‘furlough, or any other type of early release until the expiration of 70 percent of his. . .
maximum sentence.” 28 V.S.A. § 204b; see also Vt. Admin. Code 12-8-4 for the DOC
tules on high-risk designations. “The 70% rule does not increase a sentence imposed by
the judicial branch. Rather, the 70% rule impacts only the portion of the imposed
sentence a defendant must actually serve, which is a reflection of legislative judgments,
or in the case of parole, a determination involving exercise of authority by the executive
branch.” State v. Goewey, 2015 VT 142, 28, 201 Vt. 37.
The 70% Rule presents a conundrum for a defendant contemplating a guilty plea
to a listed offense.” Nothing in Vermont statutes or relevant DOC rules requires the DOC
to make an advance determination about whether it will in the future designate an
offender high risk prior to a change of plea or sentencing hearing so that a defendant can
plan for it. Nothing in Vermont statutes or relevant DOC rules prevents the DOC from so
designating an inmate at any time during his incarceration. As the Goewey Court
explained, the Rule affects the portion of the sentence an inmate actually will serve; it
does not affect the sentence terms imposed by the judiciary. It does, however present a
substantial unknown for any defendant contemplating a plea to a listed offense.
In this case, Attorney LaMonda handled this unknown by seeking guidance from
the DOC, prior to the sentencing hearing, as to whether Mr. Manning would be
* While the conundrum for the defendant is real, it is hardly unique to the 70% Rule. In
cases in which the 70% Rule does not apply, the DOC and the parole board nevertheless
remain free to exercise their discretion to not grant early release as they see fit. Those
discretionary decisioris may be based on presentence conduct, post-sentence conduct, and
differences over time in how those entities are prone to exercising their discretion. Early
release, in all events, is discretionary with the DOC and the parole board and is not
written into the sentence, creating a future unknown for a defendant considering the terms
of a plea agreement.
designated high risk. He did this after Mr. Manning had entered his plea on May 12,
2014 (change of plea hearing) but before the sentencing court accepted his plea on
August 28, 2014 (sentencing hearing). He explained at the PCR hearing that he believed
that if the DOC had indicated that it would designate Mr. Manning high risk, then he
would have expected the sentencing court to permit Mr. Manning to withdraw his plea.
While incarcerated between his change of plea hearing and his sentencing
hearing, Mr. Manning engaged in prohibited sexual conduct and pleaded guilty to a
’ disciplinary infraction.
At the sentencing hearing, Attorney LaMonda called Susan Wells to testify. - She
is the probation and parole officer who authored Mr. Manning’s presentence investigation
report (PSI). Mr. Manning relies heavily on her testimony as the source of the “wrong”
information about the 70% Rule. There is no evidence that the PSI or any other written
materials in evidence at the sentencing hearing addressed the DOC’s position with regard
to the 70% Rule in Mr. Manning’s case. Attorney LaMonda did not ask Ms. Wells any
questions about the 70% Rule. The State, however, did. Her testimony is set forth
above.
Ms. Wells’ testimony strongly implies that she was unaware of Mr. Manning’s
“new” sexual misconduct that had occurred just prior to the sentencing hearing. No
evidence presented at the PCR hearing suggested otherwise. That misconduct
presumably would not have been part of the “cluster” of criminal conduct giving rise to
the assessment that Mr. Manning was not high risk. Attorney LaMonda did not ask Ms.
Wells whether she had considered Mr. Manning’s recent sexual misconduct and neither
he nor Mr. Manning otherwise raised the matter during the hearing. There is no evidence
in the record that Susan Wells was aware of the new sexual misconduct at the time of the
sentencing hearing... —
Ms. Wells’ sentencing hearing testimony is reasonably interpreted to mean that
the sex offender review committee had made at least a preliminary decision that the
conduct giving rise to Mr. Manning’s criminal charges would not qualify him to be
designated high risk, based on the information before the committee at the time of its
consideration of the issue. Ms. Wells stated clearly that subsequent criminal charges or
sexual misconduct in prison could change that assessment.
To the extent that Ms. Wells referred to new charges or misconduct occurring
after sentencing she appears to have done so because she was speaking at sentencing and
was without any knowledge of any prior misconduct but for that giving rise to the
criminal charges. To the extent that there was ambiguity about the effect of the
intervening sexual misconduct, Attomey LaMonda did not resolve it by asking her about
it.
There was a potentially potent reason to'not raise the issue of Mr. Manning’s new
misconduct at the sentencing hearing. No one else had mentioned it. There is no
evidence that anyone else there was aware of it. The new misconduct squarely conflicted
with Ms, Wells’ rationale for not designating Mr. Manning high risk—that his
misconduct that was evaluated was exclusively part of a specific “cluster.” It also
apparently conflicted with (or at least complicated) Mr. Manning’s argument to the
sentencing court in favor of accepting the plea agreement—that Mr. Manning was
unusually contrite, focused on self-awareness, and profoundly interested in and suitable
for programming and rehabilitation.
Ms. Wells did not in any objectively clear way assert that Mr. Manning for some
reason was inoculated from a future high-risk designation due to any misconduct (known
or not) that may have occurred prior to sentencing, or that he could be so designated only
for conduct occurring after the date of sentencing. Mr. Manning did not mention his
intervening misconduct in his testimony. Attorney LaMonda never raised it in
questioning any witness or in argument. It is unnecessary to speculate whether Mr.
Manning and Attorney LaMonda kept their silence for perceived strategic reasons or for
some other reason. In all events, in context, Ms. Wells’ testimony is not “objective
evidence reasonably justifying” any misunderstanding Mr. Manning or Attorney -
LaMonda may have had.
There was no clear testimony or other evidence at the PCR hearing to the effect
that he affirmatively advised Mr. Manning that he could not be designated high-risk due
to new sexual misconduct that occurred between his change of plea hearing and his
sentencing hearing. Thus, Attorney LaMonda’s legal advice to Mr. Manning was not
“objective evidence reasonably justifying” any misunderstanding Mr. Manning may have
had. Mr. Manning has failed to demonstrate that there was a material misunderstanding
with an objectively reasonable basis with regard to the 70% Rule that caused him to plead
guilty.
There also is no proof of prejudice due to any misunderstanding, regardless
whether it had any objective basis. Mr. Manning claims retrospectively that if he had
known that he was going to be designated high risk then he would have withdrawn his
plea and taken his chances at trial. Prejudice is not a backward-looking enterprise,
however.
Although petitioner testified that he would have gone to trial had he
understood the parole eligibility policies, the present record establishes
only that he knew that if he were convicted of the crime charged that he
could receive a sentence of ten-to-fourteen years. To determine whether
petitioner was prejudiced, the court must look at the circumstances
confronting him at the time of the plea to determine if he would have
withdrawn his plea and. proceeded to trial had he not been improperly
advised.
In re Moulton, 158 Vt. 580, 586-87 (1992). At the time of the sentencing, Mr. Manning
had testimony from Ms. Wells that appeared to indicate that the DOC would not
designate him high risk due to the conduct that gave rise to his criminal charges. He
knew that he had engaged in separate sexual misconduct while incarcerated just prior to
his sentencing hearing, and it appears clear that Ms. Wells did not in any objectively
reliable manner assert that his non-high risk designation included consideration of that
intervening misconduct. In those circumstances, he chose to go forward with his plea.
Attorney LaMonda could have asked Ms. Wells specifically about whether the
DOC would continue to consider Mr. Manning low risk despite the intervening
misconduct. Neither he nor anyone else did, however, and there is no evidence to
indicate what she would have said in response. While the DOC eventually did designate
him high risk, there is no evidence to indicate that Ms. Wells would have so testified on
the spot at the sentencing hearing. Thus, while Mr. Manning now says that he would
have withdrawn his plea had he known at sentencing what the DOC was going to do in
the future, the more salient issue in terms of a prejudice inquiry is what he would have -
‘done if Ms. Wells had been asked clearly what the impact of his intervening misconduct
-would be. This cannot be known on this record because Ms. Wells was never asked that.
The prejudice inquiry does not look to how future events unfolded, but how
circumstances would have been different at the time of the alleged misinformation if the
defendant had not been “misled.”
Mr. Manning has not demonstrated that he entered his plea while reasonably
relying on a material misunderstanding regarding his eligibility for early release, and that
such misunderstanding worked to his prejudice.
ORDER
For the foregoing reasons, Mr. Manning’s petition for postconviction relief is
denied.
Dated at Montpelier, Vermont this Baa day of December 2018.
Fy “Y VAL | YL, TocebuSt
Mary Vijles Teachout
Superior Judge
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