The Court Affirms a Sentence for Aggravated Sexual Assault, but Explores the Application of the 70% Rule and Cautions Care in the Use of Language

In State v. Goewey, 2015 VT 142 (December 11, 2015), the Vermont Supreme Court affirmed Defendant’s sentence of 20 years to life for aggravated sexual assault, but decided that the 70% rule would not apply to the sentence.

Issue: Defendant pled guilty to aggravated sexual assault and had a contested sentencing hearing. The probation officer who conducted the pre-sentence investigation referred the case to the high risk sex offender committee, but a high risk designation is not made until after a sentence is imposed. If the designation were to be made, the so-called “70% rule” – in which Defendant would not be eligible for any kind of early release until he had served 70% of his maximum sentence – would apply. Defendant was ultimately sentenced to 20 years to life. Defendant challenged his sentences on the ground that it was fatally flawed due to the potential application of the so-called “70% rule,” and due to the judge’s references to sodomy, or considering medical issues as mitigating factors in other cases, during the sentencing hearing.

Holding: The Court affirmed, finding:

1. 1. The judge’s references to “sodomy” to describe the oral sex acts at issue in the case were not improper as they did not reflect a personal religious or moral judgment animating the sentence, but rather were used in a technical, dictionary definition way.
   2. The Court found the challenge to the applicability of the 70% rule to be timely (even though the high risk designation had not been made) because Defendant had potential exposure in this area and this was the only means of directly challenging the applicability of the rule to his case. The Court then rejected Defendant’s separation of powers challenge, finding that legislative enactment of the 70% rule is not a usurpation of judicial power because it does not actually increase the sentence, but only increases the time that must be served. The Court also rejected the argument that application of the 70% rule is impermissible without a jury determination of aggravating factors, because it again found that such application does not count as an enhancement. The Court did, however, find that the 70% rule is inapplicable to Defendant, and to all Defendants who are given non-fixed-term sentences (or sentences where the maximum is a life term). The Court noted that there is no way to calculate 70% of a life term, and the legislature could not mean for the 70% rule to apply in such cases.
   3. The judge’s comments about considering medical issues as mitigating factors in other cases did not constitute an improper reliance on a third party’s conduct.

Concurrence: Justice Robinson, joined by Justice Skoglund, agreed with the majority that there was no indication that the trial court judge was animated by a personal religious or moral judgment in the sentencing. Nevertheless, she wrote separately to note that the use of the term “sodomy” added confusion (as the term covers a wider range of sex acts than the oral sex acts at issue in the case) and was inappropriate at a sentencing hearing, given that the historical connotations of the term make it reasonably possible to construe its use as indicating a bias against LGBT people.