Mandamus Under Rule 75 and Single‐Credit Rule for Consecutive Sentences: Burke v. Deml

Introduction

The Vermont Supreme Court’s decision in James Burke v. Nicholas Deml et al. (No. 24-AP-369, May 9, 2025) clarifies two interrelated principles:

The limited scope for challenging a Department of Corrections (DOC) calculation via Vermont Rule of Civil Procedure 75 and the writ of mandamus;
The application of the “single credit” rule under 13 V.S.A. § 7031(b)(1) for consecutive sentences, prohibiting “double counting” of pre-sentence custody days.

This commentary reviews the background of the dispute, summarizes the Court’s holding, analyzes the precedents and reasoning relied upon, simplifies complex legal concepts, and assesses the decision’s future impact.

Summary of the Judgment

James Burke, an incarcerated plaintiff, filed a Rule 75 complaint challenging DOC’s recalculation of his minimum release date after an amended sentencing mittimus ordered his felony sentence to run consecutively to earlier misdemeanors. The trial court held that:

Rule 75 review is functionally mandamus and limited to compelling ministerial acts by a public officer;
DOC correctly followed the amended mittimus and applied 13 V.S.A. § 7031(b)(1), which bars awarding credit on overlapping time for consecutive sentences;
Burke’s collateral challenges to his plea agreement and alleged double-jeopardy violation were barred by res judicata and not cognizable under Rule 75;
Burke failed to supply a transcript, waiving appellate challenge to factual findings.

The Supreme Court affirmed, concluding DOC had no discretion to ignore the mittimus or misapply the statutory credit rule.

Analysis

Precedents Cited

Sagar v. Warren Selectboard (170 Vt. 167, 171 (1999)): Established that Rule 75 actions operate as mandamus to compel a ministerial duty by a public officer.
Lofts Essex, LLC v. Strategis Floor & Decor Inc. (2019 VT 82, ¶ 17): Affirmed that, on undisputed facts, appellate courts defer to trial-court conclusions reasonably drawn from the evidence.
Lamb v. Geovjian (165 Vt. 375, 379–80 (1996)): Set forth the doctrine of res judicata, barring re-litigation of claims or causes of action that have been or should have been raised previously.
13 V.S.A. § 7031(b)(1): Statutory rule that for consecutive sentences only a single period of pre-sentence custody credit may be applied, preventing “double counting.”

These authorities anchored the Court’s conclusion that DOC’s duty was ministerial and that statutory law forbids awarding overlapping credit on consecutive sentences.

Legal Reasoning

The Court’s reasoning unfolded in three steps:

Scope of Rule 75 as Mandamus. By referencing Sagar, the Court held that a Rule 75 complaint can only compel performance of a simple, definite ministerial duty—here, adherence to the sentencing mittimus. It cannot overturn discretionary or collateral aspects of sentencing.
Statutory Credit Rule. Under 13 V.S.A. § 7031(b)(1), “Only a single credit shall be awarded in cases of consecutive sentences.” The amended mittimus expressly directed consecutive service, so DOC was required to remove overlapping credit. The trial record (DOC testimony and records) confirmed proper calculation.
Res Judicata and Procedural Barriers. Burke’s arguments about double jeopardy and plea-agreement validity fell outside Rule 75 and were already litigated on appeal and in post-conviction relief. Per Lamb, these arguments were barred by res judicata. Moreover, ineffective assistance of counsel claims require a PCR petition, not a Rule 75 action.

Impact

This decision provides important guidance:

Clarifies that Rule 75 cannot be used to revisit discretionary sentencing or to litigate plea agreements; those challenges belong in PCR or direct appeal.
Affirms DOC’s ministerial duty to follow sentencing mittimuses precisely and to apply statutory credit rules without discretion.
Reinforces the single-credit rule under § 7031(b)(1), ensuring uniform treatment of overlapping custody time in consecutive sentences.
Warns pro se litigants that failure to order a transcript waives factual challenges on appeal.

Complex Concepts Simplified

Rule 75 Complaint. A civil procedure mechanism in Vermont to review governmental actions. In practice, it operates like a petition for mandamus when seeking to enforce a public officer’s non-discretionary duties.
Writ of Mandamus. A court order compelling a public official to perform a duty that is clear and ministerial, without involving judgment or discretion.
Sentencing Mittimus. The formal court order directing DOC how to execute a sentence, including whether it runs concurrently or consecutively to other sentences.
Concurrent vs. Consecutive Sentences. Concurrent sentences run at the same time; consecutive sentences run back-to-back. Statutes may limit how pre-sentence jail time credits apply.
Double Counting. Applying the same days of custody twice toward different sentences. Statute bars this for consecutive sentences.
Res Judicata. A doctrine preventing re-litigation of claims or issues that were or should have been raised in prior proceedings between the same parties.

Conclusion

Burke v. Deml confirms that when a sentencing mittimus is amended to require consecutive service, DOC’s obligation to remove overlapping credit is ministerial and enforceable via Rule 75/mandamus. Challenges to plea agreements, double-jeopardy, and counsel effectiveness fall outside Rule 75’s narrow scope and are barred if previously litigated. Finally, the decision underscores the single-credit rule under 13 V.S.A. § 7031(b)(1), ensuring fair and uniform calculation of release dates on consecutive sentences. This precedent will guide courts, practitioners, DOC officials, and inmates in understanding the proper procedural vehicle for sentencing disputes and the limits on credit for pre-sentence custody.