couture v. pallito

URT
PURE
‘ONT
SUPERIOR COURT
Washington Unit: i WL - 31 A 8: 25
DARREN COUTURE
Plaintiff
FILED
v.

ANDREW PALLITO, COMMISSIONER,
Vermont Department of Corrections
Defendant

DECISION
All Pending Motions

CIVIL DIVISION
Docket No. 714-11-14 Wnev

This has become a confusing case. Mr. Couture filed it to challenge the manner by which
his parole was revoked. At this point, there is one remaining claim: that his plea to a parole
violation, and waiver of a final revocation hearing, was involuntary. The State seeks summary
judgment on that case. Mr. Couture also has filed a motion seeking judgment. These and any
other pending motions are denied as moot. Mr. Couture’s involuntariness claim will be decided

on the evidence as presented at a hearing.

On January 20, 2017, the court issued a ruling denying a discovery request of Mr.
Couture’s, stating, “The records Mr. Couture secks are not relevant to the remaining claim in the
case, which concerns whether there was a valid waiver of a parole violation hearing.” Ina
February 1, 2017 filing, Mr. Couture describes this as a “major” error. He explains:

The Court states “whether there was a valid waiver,” indicating a single waiver,
which plaintiff assumes the Court is implying to the waiver of May 1, 2014.

In Judge Tomasi’s ruling page 7 & 8 (6)(7)(8) Judge Tomasi refers to the
May 1, 2014 waiver to the final revocation hearing, all in a singular manor [sic].

Plaintiff filed a Motion for Reconsideration on March 28, 2014, which
was granted in part, where Judge Tomasi states The remaining ISSUES in the

case are whether the WAIVERS and the PLEAS were knowingly and voluntarily

aereed to by Plaintiff whether due to mental illness or otherwise.

Judge Tomasi changed this remaining issue/claim (singular) to
Issues/Claims in the case to the Waivers and Pleas (Plurally) clearing [sic]
referring to BOTH the Preliminary and Final parole revocation hearing.

Mr. Couture believes that his due process rights required, after he was picked up on the parole
violation, a preliminary hearing addressing both probable cause and bail and a subsequent final
hearing addressing revocation. He knows that he did not personally waive a preliminary
probable cause hearing by signing a form to indicate any such waiver, and he has focused his
litigation of this case on that issue. This strategy is at odds with how the events of Mr. Couture’s
revocation unfolded and has muddied the litigation of his involuntariness claim.

The Parole Manual requires a preliminary hearing addressing both probable cause and
bail only if the final revocation hearing will not be scheduled within a certain time. Mr. Couture
was arrested while on parole and his final revocation hearing was scheduled for a few days later
on 4/1/14. This is apparent in the documentation Mr. Couture filed with his complaint, which
notes that the 4/1/14 hearing originally was scheduled to address revocation; it says nothing
about probable cause. .No preliminary hearing was necessary and none was scheduled.

However, Mr. Couture’s counsel, Emily Tredeau, Esq., then asked to reschedule the
revocation hearing and instead address bail only at the 4/1/14 hearing. The Board assented to
Mr. Couture’s request, and bail (whether he would be held or released pending the final hearing)
was the only issue addressed at the 4/1/14 hearing. The Board evidently treated Mr. Couture’s
request as a waiver on the issue of probable cause. After the hearing, it denied bail. On the bail
form, it checked a box to indicate that probable cause had been found, even though the matter
hadn’t been addressed and, presumably, was treated as waived.

Before the rescheduled revocation hearing, Mr: Couture stipulated to one parole violation
_in exchange for the withdrawal of two others, and his parole was revoked. He waived the
rescheduled hearing.

Mr. Couture seems to think that he should be entitled to a return to parole status because
he did not sign a waiver form on the issue of probable cause for purposes of the 4/1/14 hearing
even though a hearing on probable cause did not occur at his own request. He credits a short,
handwritten reconsideration decision by Judge Tomasi as giving life to this claim. Otherwise,
his meaningful claim in this case is that his plea and waiver of the final revocation hearing were
involuntary.

To be clear, the order of the underlying events is as follows: (1) Mr. Couture was arrested
on a single violation. (2) At the 4/1/14 hearing bail was denied; that was the only issue
addressed at Mr. Couture’s request. (3) Two additional charges were added the next day. (4)
Mr. Couture waived the final hearing, pleading to one alleged violation in exchange for dropping
the other two.

In the first round of summary judgment motions, Judge Tomasi ruled that there was no
error in not having a probable cause hearing vis-a-vis the second and third charges because,
regardless whether there was any procedural error, it no longer mattered once he pleaded to one
violation and waived his revocation hearing. The same rationale applies to the issue Mr. Couture
is trying to raise now (and attribute to Judge Tomasi)—that there was a defect in the waiver of an
issue at the preliminary hearing that did occur.

Judge Tomasi also ruled that the Board had no lack of authority to revoke parole, the
sufficiency and admissibility of evidence in support of revocation of parole were irrelevant
because he “waived,” ineffective assistance of counsel is irrelevant, constitutionality of the
parole condition goes nowhere, and involuntariness of the waiver—based on mental illness—
remains the disputed matter that cannot be addressed on summary judgment. The court also
ruled that if there is any relief in this case it will be limited to a remand to the Board “to allow it
to consider and adjudicate all of the violations originally brought against Plaintiff.” That is,
relief would be like withdrawing the plea and starting the revocation proceeding over. The court
would not reinstate Mr. Couture’s parole status.

Mr. Couture then filed a motion for reconsideration. In an entry (5/10/16), the court
checked a box for “granted,” writing “in part.” It then added in handwriting: “The remaining
issues in the case are whether the waivers and the pleas were knowingly and voluntarily agreed
to by Plaintiff whether due to mental illness or otherwise.” The order appears to have been
intended to clarify that the voluntariness of the plea and waiver of the final revocation hearing
may be attacked based on Mr. Couture’s mental illness “or otherwise.” Earlier, the court had
referred to mental illness alone. Mr. Couture had advocated, however, that he had been induced
to plea with false promises. The reconsideration order ensured that Mr. Couture would not be
limited as to how he might go about showing that his plea was involuntary, That appears to be it.

Mr. Couture then filed a motion for interlocutory review, which the court said it would
treat as yet another motion for reconsideration. It ruled (6/13/16): “In the Court’s view, the
proper focus of the case is the validity and scope of the purported waiver at issue in the
underlying parole board proceeding.”

Mr. Couture seizes on Judge Tomasi’s use of the plural (waivers and pleas) in the 5/10/16
reconsideration decision to suggest that the court was saying that the remaining issues
encompass whether the waiver of probable cause at the 4/1/14 hearing as well as the plea and
waiver of the revocation hearing were voluntary. He urges this even though the 4/1/14 hearing
did not address probable cause at his own request. He does not offer to explain why Judge
Tomasi’s use of the plural in the 5/10/16 order should have such wide-ranging significance and
his use of the singular (waiver) in the 6/13/16 order should have none.

Mr. Couture’s “waiver” of probable cause related to the 4/1/14 hearing occurred insofar
as his counsel asked to convert a final revocation hearing into a preliminary hearing addressing
bail only. If there were some actionable defect in how that was done, it stopped mattering when
Mr. Couture later pled to one violation and waived the rescheduled revocation hearing
altogether.

At this point, the only issue is whether the waiver of the rescheduled revocation
hearing—meaning the plea to a single violation and the waiver of the May 2014 hearing—was
involuntary (whether due to mental illness, false promises, or any other reason) and should be set
aside for a wholly new revocation proceeding on remand.

Mr. Couture’s intense focus on the wrong issue appears to have distracted him from the
voluntariness issue that matters, and which the State has clearly raised and briefed in its
summary judgment motion. On that issue, the State’s motion goes largely unopposed by filings
as contemplated by Rule 56. However, the record as a whole includes evidence and substantial
allegations to the effect that Mr. Couture may have been experiencing symptoms of mental
illness around the time of the plea that potentially could affect the voluntariness of the plea.

Accordingly, in light of the state of the record and Mr. Couture’s pro se status, the court
prefers to resolve the voluntariness issue on the evidence as presented at a hearing.

ORDER’

All pending motions are denied as moot. The issue of the voluntariness of Mr. Couture’s
plea to a parole violation will be determined on the evidence presented at a hearing in which the
court will take evidence and make a decision on the issue of waiver based on the evidence.

The Clerk will schedule a pretrial telephone conference to make plans for the hearing.

Dated at Montpelier, Vermont this 30th day of June 2017.

Wy Vike Jenchha dt

Mary Miles Teachout
Superior Judge