State v. Randy F. Therrien

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press. 2022 VT 35 No. 2021-059 State of Vermont Supreme Court On Appeal from v. Superior Court, Chittenden Unit, Criminal Division Randy F. Therrien March Term, 2022 Alison S. Arms, J. Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee. Matthew Valerio, Defender General, and Joshua O’Hara, Appellate Defender, Montpelier, for Defendant-Appellant. PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Waples, Supr. J., Specially Assigned ¶ 1. REIBER, C.J. Twelve years after the trial court ordered defendant Randy Therrien to pay restitution, defendant filed a motion to vacate the order. The court denied the motion, concluding that it was untimely under Vermont Rule of Criminal Procedure 35. We agree and affirm but remand for the trial court to correct a computational error in the order pursuant to the parties’ stipulation. ¶ 2. Defendant pleaded guilty to possession of stolen property in January 2008. Defendant’s counsel stipulated that the probable-cause affidavit set forth a sufficient basis for the charges. The affidavit alleged that multiple customers of a storage company in Essex, Vermont, reported that property had been taken from their units. One customer, Michael Gladu, reported that several items, worth about $5000, were stolen from his unit. Another customer, Robert Lefebvre, similarly reported that several items were stolen, including a three-wheel all-terrain vehicle (ATV). He believed that some tools and concrete finishing items were also stolen and was trying to discern precisely what was missing. ¶ 3. The court accepted defendant’s guilty plea and sentenced defendant to eight months to two years’ imprisonment. The plea agreement provided that a restitution hearing would be held. The court informed defendant that if the State pursued restitution, he would be obligated to pay it. Defendant responded that he understood but did not want to be transported to the restitution hearing as he anticipated serving his sentence in an out-of-state facility to receive vocational or educational training and did not want the hearing to interrupt his training. The court told defendant that he could participate by telephone, and defendant agreed to do so. The court told defendant that his “counsel would be here” and “she can thump the table when you’re not here.” ¶ 4. The restitution hearing proceeded over three days. The hearing was first scheduled in May 2008. One of the State’s witnesses was unavailable, so the hearing was continued to June. Defendant participated by telephone, and his counsel confirmed that he would do the same at the continued hearing. ¶ 5. The second day of hearing was held on June 16, 2008. Defendant was not present, but the docket entries reflect that his attorney agreed that the hearing …

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