State v. Hirzel (2026 VT 24): No Binding Plea Agreement Without Rule 11(e)(3) Advisement; Extra-Record Victim-Impact Allegations Disclaimed Are Not “Considered”; Curfew Cannot Reduce Jail Time Under § 7031(b)

1. Introduction

State v. Peter Hirzel is a sentencing appeal following guilty pleas to two sexual-assault counts under 13 V.S.A. § 3252(a)(1) (without consent) and § 3252(c) (victim under sixteen). The parties negotiated a split-to-serve framework: the defendant could argue for a minimum split of three years to serve, while the State could argue for up to seven years to serve. The sentencing hearing was contested only as to the length of the “to-serve” portion.

On appeal, the defendant challenged the sentencing process on three fronts:

• Plea agreement procedure: whether the trial court had already “accepted” the plea agreement at the change-of-plea hearing, making later references to potential rejection improper.
• Victim-impact statements: whether alleged extra-record claims in victim-impact statements were improperly “considered” without notice and an opportunity to rebut under V.R.Cr.P. 32(c).
• Curfew credit/consideration: whether time spent on restrictive pretrial curfew could be credited—or at least weighed as a hardship—to reduce jail time.

2. Summary of the Opinion

The Court (Reiber, C.J.) affirmed. It held:

• The trial court did not accept the plea agreement at the change-of-plea hearing merely by accepting the guilty pleas or by making scheduling-related statements; absent the specific advisement required by V.R.Cr.P. 11(e)(3), the court is not bound.
• Any Rule 11(e) misstep in failing to explicitly announce deferral did not amount to plain error because the court ultimately imposed a sentence within the parties’ agreed range (indeed, the agreed maximum), eliminating prejudice.
• The victim-impact issues were moot because the judge repeatedly stated on the record that it would not consider allegations outside the PSI/documents; a later “considered everything” remark was treated as a non-dispositive “rhetorical blemish.”
• The defendant was not entitled to credit under 13 V.S.A. § 7031(b) for time on restrictive curfew, and the court properly rejected reframing the request as mere “consideration” of hardship—because the practical effect sought was still a jail-time reduction barred by State v. Byam.

3. Analysis

3.1 Precedents Cited (and How They Drive the Result)

A. Sentencing deference and improper information

• State v. Sullivan (2018 VT 112): supplies the governing abuse-of-discretion framework—sentences are upheld if grounded in legitimate goals and not based on improper information or animus.
• State v. Lumumba (2014 VT 85): emphasizes deference absent “exceptional circumstances” and reinforces the “improper or inaccurate information” limitation.
• State v. Ingerson (2004 VT 36): reinforces that sentences supported by credible evidence and free of personal animus will stand.

B. When a plea agreement binds the court under V.R.Cr.P. 11(e)

• State v. Phillips (2018 VT 85): the centerpiece. It frames acceptance/deferral/rejection as a “totality of the circumstances” fact question and, crucially, holds that a court is not bound unless it informs the defendant it will embody the agreement (or a less onerous disposition) under V.R.Cr.P. 11(e)(3). Hirzel applies Phillips to reject the notion that acceptance of the guilty plea equals acceptance of the plea agreement.
• State v. Hendricks (173 Vt. 132 (2001)): illustrates that even strong language about anticipated sentencing does not necessarily constitute acceptance; what matters is whether the record indicates the agreement’s fate remains open until sentencing.
• State v. Delisle (162 Vt. 293 (1994)): reinforces that courts may be found to have deferred even after entering a plea and discussing the contemplated sentence, especially where the court orders a PSI, signals reservations, and keeps withdrawal options conceptually alive.
• In re Pinheiro (2018 VT 50): used for the limited proposition that acceptance of a plea is constitutionally required if voluntary/knowing; it does not equate to acceptance of the agreement’s sentencing disposition.

C. Plain error doctrine

• State v. Ray (2019 VT 51): supplies the four-part plain error test and the concept that independent lawful grounds can defeat prejudice.
• State v. Koons (2011 VT 22): confirms unpreserved sentencing objections are reviewed for plain error.
• State v. Carpenter (2013 VT 28): critical to the prejudice analysis—no prejudicial error where the defendant receives the same (or within-range) minimum term contemplated by the agreement; fairness and integrity are not impugned when the term is within the bargained-for range.

D. Victim-impact information, Rule 32, and reliability limits

• Delisle (2015 VT 76): reaffirms broad sentencing discretion but insists sentencing must rest on reliable information with sufficient disclosure; also notes that if a court intends to rely on additional information, it must notify the defendant or Rule 32’s challenge right becomes meaningless.
• State v. Ramsay (146 Vt. 70 (1985)): provides the classic reliability and disclosure requirement: sentencing information must be reliable and disclosed in time for rebuttal.
• State v. Cyr (141 Vt. 355 (1982)): supports the proposition that there is no error where the trial court does not consider prohibited assertions.
• State v. Russo (2004 VT 103): supplies the “mootness” mechanism—if the court agrees not to consider challenged information, the dispute is moot.
• State v. Hughs (2018 VT 74): provides the “rhetorical blemishes” lens—imperfect phrasing at sentencing does not override clear record statements about what was and was not considered.

E. Curfew, “in custody,” and sentencing credit

• State v. Kenvin (2013 VT 104): noted as the earlier view that sufficiently onerous 24-hour curfew could trigger § 7031 credit; important mainly because it is expressly “overruled.”
• State v. Byam (2017 VT 47): controlling. It adopted a “bright-line rule” that pretrial curfew under conditions of release does not qualify for § 7031(b) credit because it is not “in custody,” which requires physical control by DOC or a court-ordered treatment facility. Hirzel extends the practical force of Byam by rejecting attempts to obtain an equivalent reduction through “consideration” of curfew hardship.

F. Briefing/waiver aside

• Swanton Village v. Town of Highgate and March v. Beckman: used to reject the defendant’s claim that the State “conceded” error by not responding to certain constitutional arguments; the Court re-centers the appellant’s burden.
• In re S.B.L.: underscores that the appellant bears the burden to show reversible error.

3.2 Legal Reasoning

A. Plea agreements: acceptance requires the Rule 11(e)(3) advisement

The Court’s reasoning is formal and rule-centered: V.R.Cr.P. 11(e) makes the plea agreement binding on the court only upon the court’s explicit advisement that it will embody the agreement (or impose a less onerous disposition). The trial judge’s statement—“accept the defendant’s plea” and “enter a judgment of guilty”—was treated as constitutionally necessary acceptance of the plea, not acceptance of the agreement. A scheduling “Okay” in response to the State’s estimate of hearing time likewise could not satisfy Rule 11(e)(3).

On the defendant’s “silence equals acceptance” theory (i.e., failure to say “I defer” or “I reject” equals acceptance), the Court aligns with its prior refusals (particularly State v. Phillips and State v. Delisle) to presume acceptance. The animating concern is institutional: the plea colloquy validates voluntariness; sentencing remains a judicial function unless and until the court knowingly binds itself in the manner Rule 11(e)(3) requires.

B. Plain error: no prejudice when the ultimate sentence matches the plea bargain’s authorized range

Even assuming a technical Rule 11(e)(4) violation (failing to state deferral and related advisements “to the letter”), the Court focuses on the prejudice element of plain error. The defendant received the seven-year “to serve” term that the plea agreement expressly allowed. Under State v. Carpenter, when the sentence remains within the negotiated range, the fairness/integrity concerns that drive plain error relief are not triggered. The Court also notes the practical function of Rule 11(e)(4)’s remedy—an opportunity to withdraw the plea—was mooted by the court’s later acceptance and within-range sentence.

C. Victim-impact statements: disclaimed reliance cures the Rule 32 problem

The defendant’s Rule 32/due process argument depended on showing the sentencing judge actually relied on unreliable or undisclosed accusations (other potential victims; a new oral-sex allegation). The Court treated the record as dispositive: the trial judge repeatedly stated it would not consider allegations outside the PSI/documents and would consider only impact/trauma.

This triggers the State v. Russo logic: once the court agrees not to consider contested information, the issue is moot. The opinion then “harmonizes” the judge’s later remark (“considered everything”) by reading it as rhetorical support to the victim, not a reversal of the earlier evidentiary boundary. Using State v. Hughs, the Court declines to elevate an imprecise phrase into reversible reliance where the sentencing judge repeatedly disclaimed consideration.

D. Curfew: no credit, and “consideration” cannot be a workaround

The curfew issue is framed through the statutory term “in custody” in 13 V.S.A. § 7031(b), as interpreted by State v. Byam. Because the defendant’s curfew was a condition of release—without DOC physical control—he was not “in custody,” and the sentencing court lacked authority to grant credit. Importantly, the Court rejects the defendant’s attempt to recast the request as a non-credit “hardship” consideration.

The Court treats “consideration” as functionally indistinguishable from credit where the requested outcome is a reduced time-to-serve. In effect, Hirzel prevents end-runs around Byam: if the doctrinal reason for denying credit is that curfew is not custody, a sentencing court cannot achieve the same result by renaming the reduction.

3.3 Impact

• Plea practice clarity: The opinion strengthens a pragmatic message to practitioners: do not assume the plea agreement is binding because the guilty plea was accepted. Unless the court gives the Rule 11(e)(3) advisement, counsel should prepare for the possibility that the court will later reject the negotiated disposition at sentencing.
• Plain error narrowing in plea-procedure disputes: Even where Rule 11(e)(4) is not followed “to the letter,” appellate relief will be difficult without a concrete showing of prejudice—especially where the final sentence falls within the plea agreement’s contemplated range.
• Victim-impact management: Trial judges can preserve sentencing reliability by expressly stating on the record what they will not consider. The opinion signals appellate willingness to credit these disclaimers and treat later empathetic or generalized remarks as non-dispositive.
• Curfew and sentencing reductions: Hirzel reinforces State v. Byam not only as a “no credit” rule but as an anti-circumvention principle: defendants should not expect a court to reduce incarceration because of pretrial curfew, even if framed as equitable “consideration.”

4. Complex Concepts Simplified

• Split-to-serve sentence: As described via State v. Fontaine, a sentence where part of the minimum is served incarcerated and the remainder is suspended with probation conditions.
• PSI (pre-sentence investigation report): A report (typically prepared by corrections/probation) compiling background, risk factors, victim impact, and sentencing recommendations to inform the judge.
• Psychosexual evaluation: An assessment used in sexual-offense cases to evaluate risk, treatment needs, and factors relevant to rehabilitation and public safety.
• Rule 11(e) (plea agreement procedure): Vermont’s rule governing how plea agreements are handled. The key is that a plea agreement binds the court only when the court says it will impose the agreed disposition (or less onerous) under Rule 11(e)(3).
• Rule 32(c) (sentencing information): Requires that defendants have a chance to comment on information used at sentencing; sentencing should rely on reliable facts disclosed in time to rebut.
• Victim-impact statement vs. evidence: Victim-impact statements explain harms and trauma. They are not “evidence” in the trial sense, but they can still raise due process concerns if the judge relies on new, untested factual allegations to aggravate sentencing.
• Plain error: A stringent appellate standard for unpreserved issues: the defendant must show obvious error that prejudiced substantial rights and undermined fairness/integrity of proceedings.
• “In custody” under § 7031(b): After State v. Byam, it requires physical control by DOC or a court-ordered treatment facility; pretrial curfew conditions of release do not qualify.

5. Conclusion

State v. Peter Hirzel affirms a negotiated, within-range sentence while reinforcing three procedural guardrails: (1) a plea agreement does not bind the court absent the express Rule 11(e)(3) advisement; (2) alleged extra-record victim-impact accusations do not create reversible error where the judge explicitly disclaims reliance, and appellate courts will not treat a stray phrase as overriding that boundary; and (3) under State v. Byam and § 7031(b), restrictive curfew is not “custody,” so it cannot be used—directly or indirectly—to reduce incarceration.

In the broader Vermont sentencing landscape, Hirzel favors administrable lines over equitable, case-specific adjustments when the governing rules (Rule 11(e) and § 7031(b) as interpreted in Byam) are designed to preserve clarity, predictability, and parity between defendants who are truly in custody and those who are not.