State v. Cadorette
Annotate this Case
State v. Cadorette (2001-159); 175 Vt. 268; 826 A.2d 101
2003 VT 13
[Filed 07-Feb-2003]
[Motion for Reargument Denied 30-Apr-2003]
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,
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.
2003 VT 13
No. 2001-159
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Terry M. Cadorette March Term, 2002
Michael S. Kupersmith, J.
Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.
David J. Williams of Sleigh & Williams, St. Johnsbury, for
Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
¶ 1. JOHNSON, J. Defendant Terry Cadorette appeals his
conviction for sexual assault, in violation of 13 V.S.A. § 3252(a)(1),
arguing that it was reversible error for the trial court to fail to arraign
him on a charge carrying a possible life sentence, and over his objection
on this issue, to put him to trial within six days after he learned of the
charges at a jury draw. We agree and reverse. (FN1)
¶ 2. On January 2, 2001, defendant was transported from jail where
he was serving time on an earlier conviction. He arrived to find his
lawyer involved in a jury draw for a trial on a charge that had been
dismissed two years earlier. (FN2) He told his lawyer that he wanted to
speak to the court. Defendant protested to the court that he had not been
rearraigned on the charge, that he had thought that the charge had been
dismissed due to lack of evidence, that he had never met with his court-
appointed attorney to discuss and develop a defense to the accusation, and
that his attorney was not prepared to try the matter. Indeed, he claimed
he had not seen his lawyer for seven months. The trial judge dismissed
defendant's objection with the words "we're not going to go into a
discussion about . . . every possible legal issue, Mr. Cadorette."
Defendant then inquired, "[T]hat's not my right to get into a legal issue
regarding my life, sir?" The trial judge reminded defendant that he had an
attorney to take care of his legal rights, that there was no need for
defendant to be present at an arraignment, that a not guilty plea had been
entered, and that no rights had been waived. The transcript of the alleged
arraignment hearing reveals, however, that no arraignment had been held and
no pro forma plea had been entered by the court. The court elected to
proceed with the trial, despite assigned counsel's virtual admission that
he had barely seen defendant in seven months. Counsel, Harley Brown,
claimed to have seen defendant once in that time, but also claimed that he
was ready for trial. The trial was scheduled for January 8, six days
later. Defendant was convicted and sentenced to thirty-five years to life.
¶ 3. The history prior to the jury draw shows that the present
charges had been filed previously and dismissed without prejudice on
January 4, 1999 because the complaining witness had left the area.
Defendant had been represented at that time by private counsel, who was
also representing him on other charges. On January 10, 1999, private
counsel was dismissed by the court upon defendant's allegation that counsel
had been completely unavailable to him. The state's attorney later
acknowledged that private counsel had done no discovery on the case.
Defendant was directed to apply for a public defender. Harley Brown was
assigned to represent defendant on different charges because the charge
involved in this case was not pending at the time counsel was assigned. On
May 5, 2000, the present charges were refiled, and although the docket
sheet in the refiled charges shows that the arraignment was set for the
same day, defendant was not transported to court. In fact, the hearing
scheduled for that day was for an entirely different charge. Harley Brown
appeared for defendant on the other charge. The prosecutor, however,
indicated a preference for going forward on the newly refiled charges,
stating that defendant could be arraigned at a "future status conference."
The trial court acknowledged that "first we have to have an arraignment,"
but the court wanted the discovery clock to start that day. The court's
plan was to have the parties proceed with discovery and arraign defendant
"the next time Mr. Cadorette comes to court." But no status conference or
any other event brought defendant to court until the jury draw. Moreover,
despite the discovery clock having begun to run on May 5, 2000, Harley
Brown did not file his appearance in this case until July 7, 2000. This
meant that defendant's right to exercise discovery began on May 5, 2000,
although he did not know it. Nor did he know that he should begin to
monitor his lawyer's preparation for the eventual trial. In fact, no other
docket sheet entry is made until September 22, 2000, which starts a series
of notations on rescheduling jury draws until one is actually held on
January 2, 2001, and trial is commenced on January 8, 2001.
¶ 4. One of the most fundamental principles of our criminal
justice system is that a person charged with a crime must be notified of
the charges against him. See, e.g., Rogers v. Tennessee, 532 U.S. 451, 459
(2001) (notice is one of the core due process concepts); Hamilton v.
Alabama, 368 U.S. 52, 54 n.4 (1961) (arraignment, where defendant is
informed of charge, is a "sine qua non" to trial process). This does not
mean notice may be given by an appointed attorney or the state's attorney.
This does not mean notice may be considered given if the charges have been
brought previously and dismissed without prejudice. Notice means official,
on the record notice as required by our Rules of Criminal Procedure 5 and
10. Rule 5 requires that defendant be brought before the court and read
his rights, which includes the charges against him, his right to have
counsel appointed, his right not to make a statement or answer any
questions, his right to discovery, and his right to pretrial release.
V.R.Cr.P. 5(d). If there is no challenge to probable cause, an arraignment
date is set, or a plea may be taken at that time. Rule 10 provides:
Arraignment shall be conducted in open court and shall
consist of reading the indictment or information to the defendant,
unless he intelligently waives such reading, and calling on him to
plead thereto.
V.R.Cr.P 10.
¶ 5. Rule 43(a) requires the presence of the defendant at the
arraignment, which is a critical stage of the proceedings at which counsel
must be provided, and at which defendant enters his plea. V.R.Cr.P 43(a).
Reporter's Notes, V.R.Cr.P. 10, at 46; Hamilton, 368 U.S. at 54-55 (finding
that in Alabama arraignment is a critical stage in a criminal proceeding
because it affects the outcome of trial and as a result of failure to make
certain pleas, available defenses may be "irretrievably lost"); White v.
Maryland, 373 U.S. 59, 60 (1963) (making same critical stage finding for
preliminary hearings held prior to formal arraignment in Maryland). As we
stated in State v. Bruyette, 158 Vt. 21, 35, 604 A.2d 1270, 1277 (1992),
the central purpose of arraignment is to ensure that defendant understands
the nature of the charges so that he can prepare a defense.
¶ 6. Notwithstanding our rules, things go wrong and sometimes the
formal arraignment process is overlooked, as it was in this case. The
question is what to do about it. (FN3) Defendant argues that the failure to
arraign him is a structural error requiring automatic reversal, but the
standard for reversal in these circumstances is different. Reversal is
warranted only if the defendant did not have actual notice of the charges
and an adequate opportunity to defend. Garland v. Washington, 232 U.S. 642, 645 (1914). In United States v. Correa-Ventura, 6 F.3d 1070 (5th Cir.
1993), Correa-Ventura was arraigned on three counts of an indictment and
pled not guilty. Thereafter he filed a motion to dismiss one of the counts
for failure to allege knowledge as an essential element of one of the
crimes. The government responded by filing a superseding indictment eleven
days prior to trial. It was virtually identical to the original indictment
except for the additional allegation of the defendant's knowing employment
of a firearm in connection with drug crimes. The defendant was not
rearraigned on the superseding indictment and appealed his conviction on
that ground. The defendant claimed he was prejudiced because he intended
to plead guilty to possession of firearms and his admission of guilt to the
firearms charge at trial prejudiced his defense on the drug charges. The
court disagreed because the defendant had pled not guilty to all charges at
his arraignment and had every opportunity prior to trial to change that
plea, a period of some eight months. Id. at 1074. Therefore, the lack of
arraignment on the superseding indictment, which had provided notice of the
charges against defendant, had not resulted in prejudice to him. Id.
Similarly, in United States v. Cook, 972 F.2d 218 (8th Cir. 1992), cert.
denied, 506 U.S. 1058 (1993), the defendant resisted arrest on a federal
warrant, which resulted in a superseding indictment on which he was not
arraigned. He was convicted after trial, and although insufficient facts
of the first arraignment are given in the decision, the appellate court
held that the defendant had received notice of the superseding indictment
well before trial and had sufficient opportunity to defend himself in
court. Id. at 222. In State v. Winters, 414 N.W.2d 1 (S.D. 1987), the
record was insufficient as to whether the defendant had been arraigned on
an indictment for rape, but the court found that the defendant knew months
before the trial that he was charged with the rape of the victim. Pretrial
motions, including motions to withdraw blood samples from the defendant, as
well as motion hearings showed unequivocally that the defendant and his
attorney had notice of the charges. Moreover, the defendant called eleven
witnesses at his trial. Therefore, the court held that, under the Garland
test, the defendant had notice and an adequate opportunity to defend the
charges. Id. at 2-3.
¶ 7. Although we do not agree that failure to arraign is a
structural error, under the Garland standard, defendant's conviction must
be reversed because there is sufficient evidence in this record to infer
prejudice from the failure to arraign. These are the facts that compel
this result. The charges against defendant were originally filed on August
12, 1997. When the time came for the trial, the state was unable to locate
the complaining witness. The state chose not to proceed without their main
witness and moved to dismiss the charges without prejudice in January of
1999. Thus, this is not a situation where defendant moved to dismiss to
correct some deficiency in the charges or a failure to prosecute, as in
Correa-Ventura. The state dismissed its own charges. Therefore, the only
way defendant would have learned that he was actually going to be held to
account for this crime was either through arraignment, which indisputably
did not occur, or through consultation with his appointed attorney in the
course of preparation for the trial, which the record also shows did not
occur. Appointed counsel did not file his appearance until two months
after the discovery clock began to run and admitted to the court at jury
draw that he had not seen defendant except once in the seven months since
the charges had been refiled, a representation disputed by defendant.
Because counsel was representing defendant on other charges, of which
defendant was aware, we cannot know whether defendant received notice about
the refiled charges in this matter, but it is a more than reasonable
inference that no defense was being developed during that time if defense
counsel was not consulting his client.
¶ 8. Contrasting with the attorney's ambiguous claim of contact
with defendant, we also have defendant's prompt protest, at the first
opportunity, to the trial court that he did not know of the charges and his
protestations that he could not possibly be prepared for the trial because
he had not seen his lawyer for seven months. Nor does the record show any
discovery or pretrial proceedings, as in Winters, that would indicate
knowledge and an adequate opportunity to prepare. Finally, defendant's
assertions of lack of notice and prejudice are corroborated by his attempt
to initiate plea bargaining at the jury draw. The transcript shows that
defendant, through his counsel, approached the bench and suggested a
possible sentence of ten to twenty years. The court expressed reluctance
to get involved "at the very last minute." The state's attorney responded
that she had offered such a plea bargain earlier, and that it had been
rejected by defense counsel, and that she had just told defendant's counsel
that, after trial, she would be looking for a longer sentence. Literally
on the eve of trial, defendant could not have been in a worse position for
attempting negotiation of a sentence. Absent any evidence that defendant
had adequate notice of his impending trial, a presumption of prejudice is
warranted.
¶ 9. The State claims that defendant did not state explicitly that
he had not been informed of the charges against him and that defense
counsel did not adequately object to the failure to hold the arraignment.
Defendant's own protest to the court, however, shows that he had not been
so informed. Defendant raised the lack of notice issue at every
opportunity. He spoke directly to the court at the jury draw. When he
could not get the attention of the trial judge, he filed a motion in
superior court to disqualify the trial judge in an attempt to get another
judge to listen to his complaint. Defendant raised these issues with the
trial court again before the trial began. Now, he has assigned the lack of
arraignment as error on direct appeal, claiming exactly what he claimed
below: that he did not know the charges had been refiled and he did not
have sufficient time to prepare for trial. Defendant's objection was
plain, and there is no record evidence below to contradict his assertions.
¶ 10. More than notice of the charges is at stake in this case. It
is also defendant's right to participate in his own defense that
conformance with V.R.Cr.P. 5, 10 and 43 ensures. Given the weight of the
evidence against defendant, it may well be that he would have been
convicted following a fair trial. But whatever the evidence, our criminal
justice system guarantees a person accused of a crime, especially a crime
carrying a penalty as severe as life imprisonment, a fair opportunity to be
heard.
Reversed and remanded.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Dissenting
¶ 11. MORSE, J., dissenting. The Court bases its reversal on the
assumption that since defendant and his counsel learned of the charges
"within six days" before the jury draw, they were not ready to go to trial.
¶ 12. In fact, the record does not support that conclusion.
Defendant, who had been represented throughout, knew of the charges for
over two years and had been arraigned on them. A second arraignment, after
the charges had been dismissed without prejudice and then reinstated when
the principal witness was available, would have accomplished nothing the
first one did not.
¶ 13. The Court is obviously suspicious that defendant's trial
counsel was incompetent and rendered ineffective assistance to his defense.
Yet the record discloses no factual determination that counsel did anything
wrong or that any failing of counsel made any difference to the outcome.
The Court's recitation of "facts" are mostly allegations by defendant,
which were never put to the test of litigation. While this case may
provide a basis for a post-conviction relief proceeding, the Court has
dispensed with one because it "infers" without any fact finding at the
trial level that the lack of arraignment was prejudicial.
¶ 14. At this juncture on this record we have no way of knowing what
happened during the course of the prosecution and defense. The Court
assumes defendant was woefully defended based on colloquies outside the
context of a fact-finding hearing. In fact, we know nothing about the
fairness of the trial itself that produced the conviction.
¶ 15. In short, I believe this Court has jumped the gun and denied
the State an attempt to defend against the ineffective assistance of
counsel claims alleged by defendant. No testimony under oath was given by
anyone on this issue. If a post-conviction proceeding had been allowed to
unfold, there may, or may not, have been the need for second trial.
¶ 16. I would affirm. (FN4)
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Defendant raises two other issues: (1) the trial court erred in
admitting testimony from an arresting officer that revealed consistency in
the victim's statements and (2) he was tried before a biased judge because
the trial court failed to grant or refer his motion for judicial
disqualification. In view of our disposition, it is unnecessary to reach
the first issue and the second issue is moot.
FN2. In a motion for injunction to stop his trial from proceeding,
defendant alleges that he first learned by mail on December 20, 2000 that a
jury draw had been scheduled in the case.
FN3. The remedy for defendant's problem was quite simple. The trial judge
at the jury draw could have arraigned defendant on the spot and set a new
trial and discovery schedule. Trial could have proceeded within a
reasonable time, rather than six days after formal notice was given. Under
that scenario, no error for late arraignment would have been cognizable on
appeal.
FN4. The defendant's remaining claims are without merit. Given the outcome
of this appeal, there is no need to discuss them in this dissent.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
