Defender General Matt Valerio. Photo by Elizabeth Hewitt/VTDigger
Sullivan, 57, had been sentenced in July 2015 to four to 10 years in prison on charges of drunken driving with death resulting and leaving the scene of a fatality for his role in the April 2013 crash that killed Jane Outslay of Mendon.
The state’s top court, in a decision issued Friday, affirmed Sullivan’s convictions, but tossed out the sentence. The ruling stated that the trial court “abused its discretion” and should have allowed the former city attorney more time to hire, prepare and present expert testimony for his sentencing hearing.
“As a family we are stunned,” Gregor Outslay, Jane Outslay’s son, said Friday after learning of the ruling, “but given the way everything has been going with this case we shouldn’t be surprised.”
Sullivan is currently incarcerated in the Southern State Correctional facility in Springfield.
The crash leading to the charges against Sullivan took place about 7:45 p.m. on April 10, 2013. Outslay was killed when she was hit by a car as she tried to cross Strongs Avenue in Rutland after eating dinner out at The Palms restaurant. The driver fled the scene, but the next day, Sullivan went to police reporting he was behind the wheel of the vehicle involved in the crash.
He told police, according to court records, that he had no idea who or what he hit, that he panicked and was unsure what to do. He also told police that he had been driving 30 mph and did not see Outslay in the street. Witnesses said she had been waving her cane above her head to get him to stop.
Vermont Defender General Matthew Valerio, whose office handled Sullivan’s appeal, said Friday that he was pleased with the high court’s ruling.
“Basically, the court said there was no need to rush this,” he said. “By effectively rushing it, it denied the defendant the right to put on a sentencing case.”
Valerio said he didn’t expect that Sullivan would end up receiving a longer sentence on the two charges, which each carry up to 15 years behind bars.
“I think it’s highly unlikely,” he said. “It’s one of the more harsh sentences in cases like this that we’ve seen.”
Valerio added that no decision has yet been made on whether a motion will be filed seeking Sullivan’s release pending the new sentencing hearing.
“He may ask to be out on bail. I’m in the process now of getting somebody assigned to the case going forward,” the defender general said. “I wouldn’t be surprised to have that be the first step. That’s something that will be discussed with new trial counsel.”
The Vermont Attorney General’s Office prosecuted the case and handled the appeal. Assistant Attorney General John Treadwell, head of the AG’s criminal division, said Friday that prosecutors at the sentencing hearing in July 2015 asked the judge to impose an eight-to-15 year prison term for Sullivan.
“The state could certainly ask for that again at any subsequent sentencing hearing,” Treadwell said, adding, “No decision has been made yet.”
He also said that it’s too soon to say if his office will oppose a possible request from Sullivan to be released on bail pending the new sentencing hearing.
“We haven’t considered that question yet,” he said.
Supreme Court Justice Harold Eaton authored the 22-page unanimous ruling issued Friday.
“Had (Sullivan) been able to hire the expert, the expert may not have been able to offer any psychological insight into defendant’s conduct. Or the testimony may have been completely unpersuasive to the sentencing judge,” Eaton wrote.
“But given (Sullivan’s) seemingly inexplicable behavior after he hit the victim, his desire to develop expert testimony for his sentencing hearing to explain that behavior is reasonable,” the justice added. “Given the fact that the trial court relied heavily on that behavior in sentencing defendant, we cannot accept the trial court’s assumption that the yet-to-be developed expert opinion would not have added any value.”
Judge Theresa DiMauro, who handed down the sentence and presided over Sullivan’s trial, had denied his request to delay the sentencing hearing and allow him time to hire an expert to prepare a report and testify at that hearing.
Sullivan’s attorney at that time, Barry Griffith, had asked that Dr. Thomas Powell, a licensed psychologist, conduct a forensic evaluation, psychological testing, and a risk assessment, of his client.
The psychologist, Griffith added, would have then provided a report addressing Sullivan’s alcohol history and other risk factors and “present an explanation for [defendant’s] failure to remain at the scene following the accident, based upon his expertise as [a] psychologist.”
Griffith had sought the expert to be hired at state expense because his client, who was jailed following his conviction pending the sentencing hearing, lacked the resources to afford one. Griffith also wanted withdraw from the case, allowing Sullivan to obtain public defender services, however, that was request was also denied.
The judge cited Griffith’s long tenure handling the case and a financial affidavit from Sullivan that showed he had $6,000 in a checking account, which disqualified him as a “financially needy person.”
“As defendant had anticipated, his conduct and his state of mind following the accident proved to be highly relevant,” Eaton wrote in the high court’s ruling issued Friday. “Without its expert, the defense had little to say on the subject, which formed a significant basis of the State’s argument for a lengthy prison term.”
Prosecutors argued that the “egregious nature” of Sullivan’s conduct before and after the crash warranted a “strong punitive response.”
Judge DiMauro, according the decision, was also “highly critical” of Sullivan’s conduct after the crash, finding he betrayed both “a legal and moral responsibility to assist those we injure,” and that he was motivated solely by “self-interest and self-preservation.”
The Vermont Supreme Court, in ordering a new sentencing hearing, ruled that the trial court had “abused its discretion.”
“The request to delay sentencing for a few weeks to enable defendant to make other arrangements, if he could, to have his mitigation expert available at the hearing, should have been granted, especially where the lack of mitigation proved to be an important issue at sentencing,” the decision read.
“The failure to grant the continuance, in light of the determination that defendant was not financially needy, deprived defendant of the opportunity to present the mitigation expert using his own funds that the court found he had available.”
Gregor Outslay said Friday that he’s hopeful Judge DiMauro will hand down the same sentence at the new hearing that she gave Sullivan originally. Before getting to that point, he said, he expected additional court action and hearings in the case.
“I’m sure,” he added, “they’ll be more filings for extensions, motions for release pending sentencing, and all of that silliness.”
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