Vt. Memo to the Bar, May 4, 2020

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

patricia.gabel@vermont.gov 109 State Street

Montpelier, VT 05609-0701

Telephone (802) 828-3278

FAX: 802 828-3457

www.vermontjudiciary.org

TO: Members of the Vermont Bar

FROM: Patricia Gabel, Esq., State Court Administrator

RE: Promulgated, Proposed Rule Amendments & Miscellaneous Information

DATE: May 4, 2020

For your information, please find:

• Information Regarding COVID-19 and Court Operations

• Promulgated Amendment to V.R.Cr.P. 32(c)(4)

• Proposed Order Amending Rule 6(b)(5) of the Vermont Rules for Public Access to Court Records

• Notice to Attorneys Due to Renew Licenses in 2020

• Odyssey Electronic Filing & Other Important Info

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

INFORMATION REGARDING COVID-19 and COURT OPERATIONS

Information regarding COVID-19 and court operations can be found at

https://www.vermontjudiciary.org/news/information-regarding-coronavirus-disease-2019-covid-19-and-

court-operations

I. PROMULGATED RULE AMENDMENT

Promulgated Amendment to V.R.Cr.P. 32(c)(4)

This Order was promulgated on May 4, 2020; effective July 6, 2020.

Rule 32(c)(4) is amended to provide procedures for objecting to proposed probation conditions for

consistency with State v. Lumumba, 2018 VT 40, 207 Vt. 254, 187 A.3d 353, State v. Bostwick, 2014

VT 97, 197 Vt. 345, 103 A.3d 476, and State v. Cornell, 2014 VT 82, 197 Vt. 294, 103 A.3d 469. The

amendment makes the rule consistent with, yet not as expansive as, the provisions of Federal Rule of

Criminal Procedure 32(f)(1).

Subparagraph (c)(4)(A) is amended to require written objections to PSI content in 7 days rather than 5

days. The amendment also includes an express requirement that copies of any written objections be

provided to the opposing party.

New subparagraph (c)(4)(C) is added to require that before pronouncing sentence and concluding the

sentencing hearing, the sentencing judge must provide opportunity for comment and objection to what

are in effect any “unnoticed” conditions of probation. This amendment is intended to expressly provide a

defendant with an opportunity to articulate objection to conditions of probation that may not have been

mentioned in the sentencing record, and thus to preserve claims of error as to purportedly unnoticed or

“surprise” conditions, without the necessity of filing a motion for correction of sentence under V.R.Cr.P.

35.

II. PROPOSED RULE AMENDMENT

(NOTE: THE FOLLOWING AMENDMENT HAS BEEN PROPOSED AND HAS NOT BEEN

APPROVED BY THE SUPREME COURT.)

Proposed Order Amending Rule 6(b)(5) of the Vermont Rules for Public Access to Court Records

The proposed amendment to Rule 6(b)(5) clarifies the existing rule in light of statutory changes

governing expungement and sealing of criminal-history records in cases where a judicial officer has

found no probable cause for some, but not all, of the charges brought in a single information by the

prosecuting attorney. Per 2019, No. 32, 13 V.S.A. § 7603(a)(1)(A) now provides that unless either party

objects in the interests of justice, the court shall issue an order sealing the criminal history record related

to the citation or arrest of a person within 60 days after the final disposition of the case if the court does

not make a determination of probable cause at the time of arraignment. This proposed amendment is

consistent with Vermont Rule for Public Access to Court Records 6(b)(5) and its long-standing

predecessor Rule 6(b)(24). However, 13 V.S.A. § 7606(c)(1) and (2) now provide that the court shall

remove an expunged offense from any accessible database that it maintains, but that until all charges on a

docket are expunged, the case file remains publicly accessible.

The proposed amendment clarifies that until all charges on a docket are expunged, the case file remains

publicly accessible. Note that as to sealing and expungement and the timing, pursuant to 13 V.S.A.

§ 7603(a)(2) and (g), the parties may now stipulate to sealing or expungement of a criminal history

record that is otherwise subject to the provisions of Rule 6(b)(5) at any time.

Comments on this proposed amendment should be sent by July 6, 2020, to Hon. Timothy Tomasi,

Chair of the Advisory Committee on the Rules for Public Access to Court Records, at the following

address:

Honorable Timothy B. Tomasi, Chair

Vermont Supreme Court

109 State Street

Montpelier, VT 05609-0701

Timothy.Tomasi@vermont.gov

III. MISCELLANEOUS

NOTICE TO ATTORNEYS DUE TO RENEW LICENSES IN 2020: In light of the impact of

COVID-19 on Office of Attorney Licensing processes, attorneys renewing their license for the 2020-

2022 reporting period must renew using the online license renewal portal (which will be opening in

May). Absent extraordinary circumstances, paper renewals will not be accepted.

a. Odyssey Electronic Filing and Other Important Information

Odyssey is now operational in the Orange, Windsor, and Windham trial courts and the Judicial Bureau.

Electronic filing began in these trial courts on April 20, 2020 and will begin for the Judicial Bureau on

April 27, 2020. Please use the following links to access the Odyssey case management programs and for

more information.

• Odyssey File & Serve. Odyssey File & Serve is the platform through which you will

electronically file with the courts. To access Odyssey File & Serve, please visit

https://vermont.tylerhost.net/ofsweb. This page contains user guides in the lower left-hand

corner. They include instructions on how to register and use the File & Serve. Please note that

docket specific filer guides will be posted in the near future on the judiciary’s main website.

• Odyssey Public Portal. The Odyssey Public Portal allows you to view your case files. To access

the portal, please visit https://publicportal.courts.vt.gov/Portal/. Before you can view your case

files, you must first register in the portal and then request elevated access. The Public Portal User

Guide contains instructions on how to register and request elevated access. You can read the user

guide via this link:

https://www.vermontjudiciary.org/sites/default/files/documents/VT%20Public%20Portal%20User

%20Guide%20v8.pdf. For full information on how to use the portal, please visit

https://www.vermontjudiciary.org/about-vermont-judiciary/public-portal.

• FAQ. Please visit https://www.vermontjudiciary.org/odyssey for answers to frequently asked

questions and updates about the project.

b. Court Forms

Court forms are constantly being updated. Please refer to the judiciary website for the most up-to-date

forms, https://www.vermontjudiciary.org/court-forms.

Please use the link below to report any form question, concern or issue

http://www.vermontjudiciary.org/website-feedback-form or you can access our Website Feedback

program at the bottom of each web page.

c. Obligation under A.O. 41

Attorneys are reminded that an “attorney must report to the State Court Administrator within thirty days

any change of the office mailing or electronic mail address” and that “[n]otice sent to a reported address is

sufficient even if not received by the attorney because of failure to report the proper address or failure of

delivery not caused by the court.” A.O. 41, § 4(c); see A.O. 44, § 1.

Please email those changes to JUD.AttyLicensing@vermont.gov. Your cooperation is very much

appreciated.

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov to your

Safe Senders list.

d. eCabinet Registration

Administrative Order No. 44 requires attorneys in active status to register up to three email addresses

in eCabinet for purposes of receiving notices of hearing and other documents. You may include staff

email addresses in the three email addresses that you specify. eCabinet registration is required whether

you practice in court or not.

If you have already registered in eCabinet, the email address(es) you provided as part of that process

will be used.

If you have not already registered in eCabinet, please go to https://efiling.eservices.crt.state.vt.us/,

click Register Now, and follow the simple prompts. Attorneys will need their attorney license numbers

to register. Helpful information about the Attorney Email Registration process is also available on the

Electronic Filing page of the judiciary website at https://www.vermontjudiciary.org/about-vermontjudiciary/electronic-access/electronic-filing. Please contact jud.helpdesk@vermont.gov or call the

Helpdesk at 802-828-4357 with any questions in the meantime.

You are also reminded that you are required to update the email address(es) and other contact

information you have registered as soon as there are any changes, including changes to staff email

addresses you may have included with your registration. To revise the information, please go to

https://efiling.eservices.crt.state.vt.us/, log into eCabinet, click “Account,” choose “My Profile,” and

make the necessary changes to your contact information.

Notification to JUD.AttyLicensing@vermont.gov or in eCabinet of a change to your contact

information does not automatically notify the other. It is your responsibility to notify both. If you are a

member of the Vermont Bar Association, you will also need to separately notify the VBA.