Vt. Supreme Court sends sex case back to trial court for clarification
BENNINGTON -- The Vermont Supreme Court is sending the case of a man convicted two years ago of molesting a 12-year-old boy back to the trial court to reconsider his sex offender conditions.
According to a decision released Friday, Owen R. Cornell, 31, did object to any "specialized conditions of probation" that were included in a pre-sentencing investigation (PSI) done by the Department of Corrections and submitted to the court prior to his sentencing on Sept. 26, 2012.
Cornell would likely have been sentenced earlier had he not fled to Arizona. At the hearing, the state argued for him to serve between two and eight years in prison, acknowledging that he had taken responsibility for his actions and agreed to undergo sex offender treatment, making some of the PSI irrelevant.
Cornell was sentenced to serve between two and six years in prison, all suspended except 20 months with credit for time served.
The trial court ordered that Cornell abide by sex offender conditions, but did not specify what those conditions were. Some of the conditions, the ones in relation to alcohol, contradicted each other between the PSI and the court order.
In June 2013, on appeal, the Vermont Supreme Court ordered the trial court to clarify Cornell's conditions. It was here that Cornell objected to several of them, including that he not possess recording devices, pornographic material, frequent sex-themed stores and business, submit to monitoring to determine "stimulus for your abusive cycle," own a computer, access the Internet without permission from his probation officer, be friends with women who have children under 18, contact anyone under 18, drive alone with a female, being involved in activities that would put him near children, or living near places where children gather without prior approval.
The trial court said it would not hear the objections and that the Vermont Supreme Court only said to clarify the conditions. Cornell asked the trial court to reconsider, while at the same time asking the Vermont Supreme Court to expand the trial court's ability to hear his objections. The trial court denied Cornell's motion, while the higher court granted the one he had filed with it.
"It appears, then, that the trial court's order declining to rule on defendant's motion and this Court's order allowing the court to rule on the motion at some point got crossed in the mail," wrote the justices. "Despite this confounding procedural posture, we conclude that the defendant's motion was ultimately properly before the trial court."
According to the decision, the state objected to Cornell's appeals because they had come too late in the process, but the Vermont Supreme Court ruled that because the conditions were not specific, Cornell had nothing he could file an objection to.
"The State asserts that it is routine for the court to impose the whole gamut of conditions prescribed for a particular category of offenses, and so the defendant in this case was on notice that the probation office had recommended the entire list of so-called ‘sex-offender" conditions," wrote the higher court. "This apparently routine practice in the Bennington County court is not codified in any court rule or statute."
Contact Keith Whitcomb Jr. at firstname.lastname@example.org or follow him on Twitter @KWhitcombjr.
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