State v. Michael Rondeau, 159 A.3d 1073

Background

Defendant Michael Rondeau was charged (2011) with two counts of aggravated sexual assault covering conduct from 1989–2000; jury convicted on both counts (May 31, 2018).
The information cited the 2018 statutory versions (13 V.S.A. § 3253(a)(8) and § 3253a(a)(8)) that were not the statutes in effect when the alleged conduct occurred.
At sentencing the court recognized the discrepancy, did not impose sentence, and sought briefing on Ex Post Facto and notice issues; it later vacated the convictions as legally insufficient but then sua sponte edited the information to cite contemporaneous statutes and entered judgment on the altered charges.
The court’s post‑verdict alterations changed dates/ages and statutory citations to conform to earlier statutes (e.g., changing Count One to allege victim under 10 and Count Two to cite § 3253(a)(9)).
The State argued the originals could be treated as charging the correct contemporaneous offenses (or that a lesser‑included offense could be entered); defendant argued Ex Post Facto, lack of notice, and that the court lacked authority to amend post‑verdict.
The Supreme Court of Vermont vacated the convictions, holding (1) convictions under the listed (post‑enactment) statutes violated the Ex Post Facto Clause, (2) the trial court lacked authority to amend the information sua sponte after verdict, and (3) the original information failed to provide constitutionally sufficient notice of the essential elements of the contemporaneous statutes.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether convictions under statutes cited in the information violated the Ex Post Facto Clause	The facts and affidavit supported conviction under the contemporaneous statutes; any citation error was harmless	Conviction rested on statutes enacted after the conduct and increased punishment, so ex post facto violation	Vacated: retrospective application of later statutes created sufficient risk of increased punishment and violated Ex Post Facto Clause
Whether the sentencing court could amend the information sua sponte post‑verdict under V.R.Cr.P. 7(d)	The court’s alterations cured defects and gave proper notice of the real offenses	Rule 7(d) permits amendment only before verdict; post‑verdict sua sponte amendments prejudice defendant and usurp prosecutorial/jury functions	Held: Rule 7(d) does not permit post‑verdict sua sponte amendment; the court lacked authority to alter the information after verdict
Whether the original information gave sufficient notice (V.R.Cr.P.7(b)/Sixth Amendment) to sustain convictions under the statutes in effect when the acts occurred	The facts in the affidavit and the information alleged all essential elements; surplusage (wrong citation, ages, penalty) did not prejudice defendant	The information omitted essential elements for the applicable historical statutes (e.g., "serious bodily injury" pre‑1990; victim under 10 for 1990–2006) and did not allow defendant to know the penalty exposure	Held: Original information lacked essential elements and failed to give sufficient notice; cannot be cured post‑verdict
Whether court may enter judgment on unsubmitted lesser‑included offense based on the jury verdict	The jury’s verdict necessarily implies elements of the lesser offense; court can enter judgment on lesser alternative	A court cannot infer and enter conviction for an uncharged/unjury‑submitted lesser offense post‑verdict without violating jury role and due process	Held: No inherent authority to enter judgment on a lesser unsubmitted offense; doing so would usurp the jury and violate due process

Key Cases Cited

Lynce v. Mathis, 519 U.S. 433 (U.S. 1997) (Ex Post Facto Clause protects against retrospective disadvantageous changes in law)
Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (legislative acts must give fair warning and permit reliance on meaning until changed)
Calder v. Bull, 3 U.S. 386 (U.S. 1798) (classic articulation of four categories of ex post facto laws)
Carmell v. Texas, 529 U.S. 513 (U.S. 2000) (limits on expanding beyond Calder’s categories)
Morales v. California Dep’t of Corrections, 514 U.S. 499 (U.S. 1995) (ex post facto focus: laws that retroactively increase punishment)
Garner v. Jones, 529 U.S. 244 (U.S. 2000) (retrospective legislative changes create risk of increased punishment)
Peugh v. United States, 569 U.S. 530 (U.S. 2013) (retrospective increase in sentencing range creates sufficient risk to constitute ex post facto violation)
Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (jury must find every element beyond a reasonable doubt)
In re Winship, 397 U.S. 358 (U.S. 1970) (due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime)