Due Process in Sentencing: Notice and Opportunity to Rebut Uncharged Allegations

Introduction

The case of State of Vermont v. Richard Blackmer, Jr. (Vt. Apr. 4, 2025) arises from multiple fraud and false‐pretense charges against the defendant, as well as two violations of his court‐imposed release conditions. Blackmer pleaded guilty to one count of home‐improvement fraud, two counts of false pretenses, and two counts of violating conditions of release (VCR). At the contested sentencing hearing, the trial court relied upon uncharged allegations of fraud detailed in a probable‐cause affidavit for the second VCR charge—allegations Blackmer never admitted, nor was ever formally charged with. On appeal, the Vermont Supreme Court found that using those uncharged allegations without providing notice or an opportunity to rebut violated fundamental due‐process protections and Rule 32 of the Vermont Rules of Criminal Procedure. The Supreme Court vacated the sentence and remanded for resentencing.

Summary of the Judgment

The Vermont Supreme Court held that:

The trial court committed plain error by considering uncharged fraud allegations from the VCR affidavit when determining Blackmer’s sentence, without first giving him notice or a chance to respond.
Rule 32(c) and related due‐process principles require disclosure of any factual information a court intends to rely on at sentencing and an opportunity for the defendant to rebut it.
Blackmer’s sentence—five to ten years to serve—was materially influenced by those uncharged allegations.
The sentence was vacated, and the case was remanded for resentencing before a different judge.

Analysis

Precedents Cited

The court’s decision drew upon four key precedents:

Townsend v. Burke, 334 U.S. 736 (1948): A defendant may not be sentenced on the basis of materially untrue information.
State v. Ramsay, 146 Vt. 70 (1985): Sentencing courts may consider uncharged conduct only after advance disclosure and an opportunity to rebut; the defendant bears the burden on appeal to show reliance on materially inaccurate information if proper procedures were followed.
State v. Koons, 2011 VT 22: It was plain error for the court to rely on acquitted conduct without notice or an opportunity to respond, even where that conduct was central to the sentence imposed.
State v. Delisle, 2015 VT 76: The same plain‐error analysis applies where the court on its own initiative relies on uncharged or unproven allegations at sentencing.

Legal Reasoning

The court’s legal analysis proceeded in four steps under the plain‐error framework:

Error? Yes. Rule 32(c)(3)–(4) requires that all factual information a court takes into account at sentencing be disclosed sufficiently in advance to allow the parties to decide whether to contest it. Blackmer never received notice that the court would consider the uncharged fraud allegations, nor an opportunity to rebut them.
Plain or Obvious? Yes. Precedent under Ramsay, Koons, and Delisle makes clear that sentencing without timely notice or opportunity to respond to uncharged allegations is plain error.
Prejudice? Yes. The trial court repeatedly identified the uncharged allegations—particularly the New York home‐improvement fraud—as the “most salient” reason incarceration was necessary. Blackmer’s substantial rights were thus impacted.
Impact on Fairness and Integrity? Yes. Allowing a sentence to rest on uncharged, untested allegations without procedural safeguards undermines public confidence in the fairness of the judicial system.

Impact

The ruling reinforces due‐process protections at the sentencing stage and clarifies that:

Sentencing courts must provide advance notice of any uncharged or unproven factual allegations they intend to use.
Defendants are entitled to respond, present evidence, and challenge such allegations under Rule 32(c)(4).
Failure to follow these procedures constitutes plain error—even if the defendant does not object at sentencing—and warrants vacating the sentence and remanding for resentencing.

Future sentencing proceedings in Vermont will require strict adherence to notice‐and‐rebuttal requirements whenever a court considers facts beyond the elements of the offense or admissions in the plea.

Complex Concepts Simplified

Plain Error: A legal doctrine allowing appellate courts to correct particularly serious mistakes that were not objected to below, to prevent a miscarriage of justice.
Rule 32(c)(3)–(4): Vermont’s rule requiring that any factual information used at sentencing must be disclosed early enough for the parties to decide whether to contest it, and if contested, the court must find each disputed fact reliable by a preponderance of the evidence.
Probable‐Cause Affidavit: A sworn statement by law enforcement establishing reasons to believe an offense has occurred; it is not a conviction or proof of guilt but can contain allegations that may influence a court if not properly challenged.

Conclusion

State of Vermont v. Blackmer establishes a firm precedent that sentencing courts cannot rely on uncharged or unproven allegations—wherever they appear, even in affidavits—without first giving defendants timely notice and a fair chance to contest those allegations. This decision safeguards defendants’ constitutional right against sentencing on the basis of untested facts and underscores the judiciary’s obligation to conduct sentencing with transparency and procedural fairness. The case will guide trial courts to adhere strictly to Rule 32’s notice and rebuttal procedures, ensuring that every sentence is based on accurate, litigated, and reliable information.