Vermont Legislature SmartTranscripts:

[Sen. Robert Norris (Vice Chair)]: I know. Hard to see.

[Sen. Philip Baruth (Member)]: Well, yeah, I'm trying to. Okay. Alright.

[Sen. Nader Hashim (Chair)]: So good morning. It is February 20, and we are revisiting s one eighty six. I don't wanna jinx this and say that it's think, a small technical fix to an issue that I and others have seen. But we are gonna hear some testimony from judge Zone on this. And judge, the floor is yours.

[Hon. Thomas A. Zonay, Chief Superior Judge (Vermont Judiciary)]: So good morning, Tom Zone, chief superior judge. I would first note that the the bill is a matter of policy. So I will not delve into the policy aspects of it, but talk about some of the operational aspects for the court. The first question that the committee may have is, would this impact the courts in a way that the committee should or shouldn't enact a bill? In terms of the impact on the courts, I don't think this would have impact in terms of negative impacts. In some ways, allowing the case to be resolved in the criminal division if the parties reach the agreement as the bill allows actually is more efficient. And instead of sending it, having one case in the criminal division or having something have to go back to the family division for juvenile, there is an efficiency that's built into this. The one comment that I do have to make is there is no connection between the offense that causes jurisdiction in the criminal division and the offense that the individual could agree to plead to. And so the way it works is that there are only certain offenses that could actually be brought against a youth in the criminal division. The law says that everything else has to go to the juvenile division. And so, as this would work, for instance, if you have a youth who is charged with aggravated domestic or aggravated assault, let's say, and that's in the criminal division, and the parties decide to reach a plea agreement and resolve the case, they may decide, well, it's going to be a simple assault case. Normally, simple assault would have to be transferred down to the juvenile division, but under this bill, they would be able to enter a plea on the agreement through the simple assault charge. That is what I think many people would look at and say, well, that may be the intent. The question for the legislature is, is that the intent to allow only lesser included offenses to be pled to or any offense? Affidavits often set forth a number of behaviors that could lead to charges. And so in an aggravated assault case, this bill, as written, would allow the parties to agree to plead to a misdemeanor charge of unlawful trespass or unlawful mischief, something wholly unrelated to the jurisdictional charge. So that's a question for your committee and the legislature to decide, is it intended to allow just in that line of lesser included offenses, or is it intended to charges that relate to the jurisdictional charge? It might not be a lesser included charge, but there could be theoretically unlawful mischief that goes along I'm sorry, disorderly conduct that goes along with an an an aggravated assault or something else related to it but right now, there's nothing in the statute that requires a relationship and so, you could have someone who state decides in one county to charge somebody with a serious felony, and they then bring in something that is not even in the affidavit theoretically. It could be wholly unrelated. And so that's a policy decision for the committee.

[Sen. Nader Hashim (Chair)]: And and the charge that is wholly unrelated would, at least under the current process, would have to be in family court.

[Sen. Robert Norris (Vice Chair)]: Correct.

[Sen. Nader Hashim (Chair)]: And with how this is written, the point that you're raising is that the state could then bring that into criminal court?

[Hon. Thomas A. Zonay, Chief Superior Judge (Vermont Judiciary)]: Yes. What well, the state could bring it if the child the child elects to enter a plea agreement. And so the way this could work is the state could say, we have an aggravated assault charge. And the parties discuss it and they come up with an agreement and they say, look, the state says, we don't want you to go to juvenile court. We want this case. We want the adult system, but we're willing to agree to an unlawful mischief, an unlawful trespass. Might not be related to the aggravated assault charge. Ordinarily, the moment an unlawful trespass or unlawful mischief charge was filed in the criminal division against a child, it has to be transferred forthwith by the judge. And so the reason for this bill is because in the case that I think you mentioned that you had a situation, what I imagine would have happened was you have the what we'll call the anchor case, the jurisdictional case. The parties say, judge, we're willing to not, have that felony charge pled to. We wanna have this misdemeanor charge, so we're going to amend it. And the judge would say, well, the moment you amend it, the statute requires it to be transferred. And so you can't plead to that. And so this bill addresses that circumstance. And what it also allows is the parties to fashion a plea agreement that is not tethered to that jurisdictional charge.

[Sen. Nader Hashim (Chair)]: So, yeah, I'm thinking of a situation where, let's say there's an ag assault, and in order to get to the ag assault, the defendant had to trespass onto the property and the state makes an offer saying, alright, we'll just get rid of the felony if you agree to plead to the misdemeanor unlawful trespass. And you're saying that what the bill that this bill would allow that currently rather than well, yeah. Is that what you're saying, that the bill would allow that currently?

[Hon. Thomas A. Zonay, Chief Superior Judge (Vermont Judiciary)]: This bill would allow that to happen. But it would also allow the state to say, if there's no unlawful trespass, if there's no unlawful mischief, to say, you have these other charges that are coming in next week for something else, and we're gonna amend the the agreement in this case. We're gonna amend the information, and we'll charge these, and you agree to plead to these cases. Because it says the child may elect to enter a plea agreement in the criminal division to an offense other than one specified in subsection whatever. So what this does is this allows state to say, we're willing to move on this felony, but you're going to plead to something completely unrelated, which is different than the circumstance you described where it is related. This bill does not have the lesser included requirement or a related requirement, so it allows the state to really broaden its ability to have individuals plead to charges have youth plead to charges in criminal division.

[Sen. Nader Hashim (Chair)]: Yeah, my initial reaction is that if this type of agreement were to happen, there should be a sort of nexus to the underlying conduct and the lesser included offense part that you mentioned in order to avoid that sort of back and forth of, you know, saying that a, you know, totally separate case is coming in. You know, if you plead to this, then the other well, I don't know how to articulate it, but I I get what you're saying. And and my my initial reaction is that it should be in that same nexus of conduct in that plea agreement. Okay. So is do you do you have a do you have suggested language off the top of your head by any chance?

[Hon. Thomas A. Zonay, Chief Superior Judge (Vermont Judiciary)]: You could and and I would defer to Eric on this, of course, but I I was thinking that if it said to a related offense other than the one specified or to a lesser to a related or lesser included offense, something like that, I still when I say it out loud, I wonder, okay, what is related? But related, I think we all know that related would be it's related to the offense. There's some connection. There's some nexus. So if it said that, I think that builds in that level, I'll say, of protection, because what I think you're trying to effectuate is not have this essentially swallow the entire intent of the statute to send non-five 204 cases to the juvenile division, because it would have the potential for that type of impact. Mhmm.

[Sen. Nader Hashim (Chair)]: Good point. Thank you. Committee, do you have thoughts on that, sir?

[Sen. Robert Norris (Vice Chair)]: Not on that particular. I have a question. Yeah. Donald, it's Eric or judge. So if if a child, as it specifies in the bill, is charged with a felony and he or she decides to enter into a plea agreement for a lesser offense that probably would have been in family court to begin with because of the the level of the offense. If if they enter the death plea agreement in the the criminal division, do they have the same protections that they would have in family court as far as it not being open to the public? Or No. No. But the way it's strange is that it's up to the child. Like, they Yeah. They could it's not something the state can decide for the child. If the child in consultation with their attorney decides that on balance, they'd rather plead to a lesser charge of the criminal to provide that option. And not and not get the protections that they would have afforded. Okay. Thank you.

[Sen. Philip Baruth (Member)]: Senator Baruth. Wouldn't all of this be solved if everything just started in the family court and things that needed to be moved to criminal court were moved to criminal court?

[Hon. Thomas A. Zonay, Chief Superior Judge (Vermont Judiciary)]: If that were the situation, then this bill would be the issue that this bill seeks to address would not exist.

[Sen. Philip Baruth (Member)]: Okay. Thank you.

[Sen. Nader Hashim (Chair)]: Any other actually, did you have any additional testimony or thoughts? No. Subcommittee, how are we feeling about the potential change regarding the the nexus of conduct and the lesser included offense?

[Sen. Philip Baruth (Member)]: Seems reasonable to me.

[Sen. Robert Norris (Vice Chair)]: Mean, it's it's a voluntary thing to do on the option anyway, but it kinda strikes me as funny as that you get cherished with an aggravated assault and rather than stay within the confines of but I'm not gonna hang my hat on dropping clicking an unlawful mischief or whatever. Yeah. Okay. Alright.

[Sen. Nader Hashim (Chair)]: Thank you, judge. I am wondering wait. Actually, no. That's a question for Valerio. Disregard. Thank you for thanks for coming in. Appreciate it.

[Hon. Thomas A. Zonay, Chief Superior Judge (Vermont Judiciary)]: Have a nice day. Take care, everyone. Drive safe later today. Alright.

[Sen. Nader Hashim (Chair)]: Ken? Good morning. Alright.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: For the record, Kim McManus with the Department of State Attorneys and Sheriffs. Apologize. Just had to bring my computer back up. So similar thoughts as judge presented the just the wording, and we're on page I'm just gonna jump right into the language, if that's okay. On page two, the the only concern we saw we appreciate this idea that there are times that the juvenile and the juvenile defense attorney may feel that resolving the issue in criminal court instead of going back and forth on whether they should go to family decision or stay in criminal court, that it's a better resolution to resolve it with the plea agreement in criminal court. We appreciate that adding that flexibility in there because there are scenarios where that would make sense for certain juveniles. On line five and six, when it says the child may elect to enter a plea agreement in the criminal division to an offense other than the one specified in subsection five two zero four a. So other than the one they've been charged with. I would just want to make clear that juvenile could plea to the charge that they were charged with. Right? This sounds like they could only plea to something other than the offense they were charged with. So even just adding language like to enter a plea agreement in the criminal vision to the charged offense or as the judge said, or unrelated events or lesser included, however you wanted to confine that scope, we would appreciate that. Only because a very strict reading of that would sound like you couldn't plea to something in criminal court that is rightfully in criminal court. I just wouldn't want that to be an over interpretation.

[Sen. Nader Hashim (Chair)]: Can you I I think I get what you're saying. Can you just say it one more time? I just wanna make sure.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Of course. So a juvenile has been charged with an offence list in 5204 a Yep. Or subdivision c two. So our big 11 plus three as we we call them. So you've been charged with aggravated assault. You go to criminal court. You have your arraignment. Who knows what the factors are? A strict reading of this, it makes it sound like you could only plea in criminal court to something other than the specified offense, so other than aggravated assault. Depending on the scenario, maybe a plea to that offense would make sense. Maybe a child a juvenile is charged with attempted murder and aggravated assault, and maybe the agreement is fleeing to the aggravated assault. Reading this, it almost sounds like you couldn't make that plea because if you had to go does that make sense? And, again, I don't know if I'm being overlaid. I just would wanna be careful that someone didn't read this and say, oh, you can only plea in criminal court to something other than one of the listed offenses, which wouldn't make any

[Sen. Robert Norris (Vice Chair)]: sense. Yeah.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Take it. Yeah. So I think just seeing even could agree to plea to the charge defense or and then however you all want to create that scope of what juvenile could plea to that is not in the list of offenses. Admit me. Careful with saying list of offenses in the five two zero four.

[Sen. Robert Norris (Vice Chair)]: Yeah. Okay. Yeah.

[Sen. Nader Hashim (Chair)]: Any questions or comments on that? No. Okay.

[Sen. Robert Norris (Vice Chair)]: Alright. Thank you. Thank you.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Thank you.

[Sen. Robert Norris (Vice Chair)]: And so can we get those those things from LA?

[Sen. Philip Baruth (Member)]: Yes.

[Sen. Robert Norris (Vice Chair)]: Alright. He's our last witness for today. And so

[Sen. Nader Hashim (Chair)]: I guess we can find we can I don't know? I guess I'll reach out to him. We can go offline.