Vermont Supreme Court Vacates Sexual Assault Conviction on Constitutional and Procedural Grounds

In State v. Rondeau, 2016 VT 117 (Nov. 18, 2016), the Vermont Supreme Court vacated an aggravated sexual assault conviction because the statute referenced in the information was not current at the time the alleged crime was committed (and thus invalid on ex post facto grounds) and because the information, un-amended, did not provide adequate notice to Defendant.

Issue: The trial court convicted Defendant on two counts: aggravated sexual assault of child under age 10 and aggravated sexual assault of child by common scheme. The crimes were alleged to have been committed between 1989 and 1997. The information, however, cited the current statutes—not the then-current statutes at the time the crimes were alleged to have occurred. After the verdict, the sentencing court moved, sua-sponte, to vacate the original conviction, amend the information so that it referenced the earlier statutes, and then find Defendant guilty under the earlier statutes as amended.

Holding: The court held that the convictions under the original information violated the ex post facto clause because of their higher mandatory minimums; that the sentencing court did not have the authority to amend the information, sua sponte, post-verdict under Vermont Rule of Civil Procedure 7; and that the original information, in citing current statutes, did not provide Defendant adequate notice of similar crimes chargeable under earlier statutes.

Dissent: Reiber, C.J., dissented, noting that the higher mandatory minimum on count two was not actually applied to Defendant. (A court can depart downwardly from the mandatory minimum if it makes certain written findings.) There was then ultimately no material different to Defendant between the current statute and its prior iteration, and so no grounds for finding a violation of the ex post facto clause.