Vt. court: 'Habitual offender' can be held

A divided state Supreme Court has ruled that a Springfield sex offender can be denied bail, rejecting his lawyer's argument that the state Constitution makes him eligible for release while the latest case against him is pending.

http://www.vermonttoday.com/apps/pbcs.dll/article?AID=/RH/20100401/NEWS02/4010375 Published April 1, 2010 in the Rutland Herald          Vt. court: 'Habitual offender' can be held         BY MARK DAVIS THE VALLEY NEWS         MONTPELIER — A divided state Supreme Court has ruled that a Springfield sex offender can be denied bail, rejecting his lawyer's argument that the state Constitution makes him eligible for release while the latest case against him is pending.         In a 3-2 decision, justices ruled that Thomas Pellerin could be held in prison awaiting trial, a step usually reserved for defendants charged with murder and other crimes that carry life sentences.         While none of Pellerin's alleged offenses carry a life sentence, he was charged last year under Vermont's "enhanced penalty" rules, which allow prosecutors to seek life sentences for defendants with three prior felony convictions. Pellerin's lawyer argued that the enhanced penalty charges should not affect his eligibility for bail.         "Quite simply, defendant here is charged with three felonies, each of which — for this defendant — is 'an offense punishable by life imprisonment' under Vermont's habitual offender statute," Chief Justice Paul Reiber wrote for the majority. "We find no merit in defendant's arguments to the contrary."         Windsor County State's Attorney Robert Sand said a ruling in favor of Pellerin could have thrown into doubt the incarcerations of dozens of defendants who are held without bail in Vermont under habitual offender penalties.         "Obviously, I'm happy about the ruling," Sand said. "The state prevailing preserves the status quo, and nothing changes. Had the ruling been 3-2 in the other direction that would have radically altered the bail landscape of Vermont. There was actually a fair amount riding on the case."         Pellerin's attorney, Matt Birmingham, said he was surprised by how quickly the court issued its decision. Justices often take several months to issue an opinion, but the Pellerin ruling on March 26 came less than two weeks after the case was heard.         "It was a quick decision and a close decision," said Birmingham, based in Ludlow. "I think it's a challenging point of law, but they have spoken, and we're going to move on."         Pellerin previously was convicted of lewd and lascivious conduct with a child in 1990, and twice of attempted rape, in 1972 and 1977.         In February 2009, Pellerin allegedly took nude photographs of a 16-year-old girl after showing her a letter purported to be from doctors saying they wanted to have sex with teen girls and would pay 900 pills or a half-pound of marijuana, according to a police affidavit. The doctors wanted the pictures, Pellerin told her, according to authorities.         Pellerin pleaded not guilty to three felonies, false personation, lewd and lascivious conduct and dispensing drugs to a minor, and two misdemeanors. Windsor District Court Judge Theresa DiMauro ordered Pellerin held without bail at Southern State Correctional Facility in Springfield.         Birmingham appealed that decision, arguing it was illegal to hold Pellerin since none of the individual charges carried a life sentence.         In the majority opinion, joined by Justices John Dooley and Brian Burgess, Reiber wrote that if the lawmakers had intended to exempt defendants charged under enhanced penalty rules from being held without bail, they could have written the exemption into law.         In a four-page dissent, Justice Denise Johnson said that holding defendants charged as habitual offenders without bail was misinterpreting a law that should only be applied to a small percentage of defendants.         "Such a holding undermines the presumption of innocence for those who stand accused of crimes and greatly expands the category of cases in which the presumption of release is reversed, a category we have explicitly noted should be narrow," Johnson wrote.         Johnson wrote that the state Constitution calls for bail in all but the most serious of crimes, and includes strong protections of personal liberties for criminal defendants. Justice Marilyn Skoglund sided with Johnson.         Sand said yesterday that he seeks habitual offender status for about 12 defendants a year in Windsor County. About 10 of those defendants are held without bail, Sand said.         After he chose to serve his maximum sentence for the 1990 conviction rather than participate in a treatment program that could have led to his early release, Pellerin was freed in 2006. Officials from the Department of Corrections warned he was likely to re-offend and Pellerin became exhibit A for Gov. James Douglas and lawmakers in a failed attempt that year to pass a law to keep some sex offenders in custody after they served their maximum prison sentences. http://www.rutlandherald.com/article/20100401/NEWS02/4010375