Background
In February 2025, Peter Hirzel pleaded guilty to one count of sexual assault without consent and one count of sexual assault with a victim under sixteen years of age in violation of Vermont law. Before trial, the court released him on conditions that included a restrictive curfew, which the court relaxed on several occasions for activities like grocery shopping and holiday travel. The parties entered into a plea agreement establishing a split-to-serve sentence—a portion to be served in jail with the remainder suspended. The agreement allowed defendant to argue for a minimum of three years’ incarceration and permitted the state to argue for a maximum of seven years.
At the change-of-plea hearing, the court stated it would “accept the pleas” and ordered a pre-sentence investigation and psychosexual evaluation, noting that “the length of the split will be contested” at a later sentencing hearing. The court did not explicitly state whether it was accepting, rejecting, or deferring decision on the plea agreement. The sentencing hearing was held in May 2025, where the victim and her parents provided impact statements. During cross-examination, defense counsel objected to statements about potential other victims and allegations outside the record. The court agreed not to consider such out-of-record allegations.
At sentencing, the state requested the court impose the maximum seven-year split sentence and objected to any credit for time spent on curfew. Defendant requested the minimum three-year sentence and asked for credit—or at least consideration—of the twelve months he claimed to have spent under restrictive curfew during his roughly forty-month release period. The court sentenced defendant to ten years to life all suspended except seven years to serve for the first conviction, with a concurrent sentence for the second conviction. Defendant appealed, challenging three aspects of the court’s sentencing process.
The Court’s Holding
The Vermont Supreme Court affirmed the conviction and sentence, rejecting all three of defendant’s arguments. First, regarding the plea agreement, the court held that accepting a guilty plea does not constitute acceptance of the plea agreement itself. A court becomes bound by a plea agreement only if it informs the defendant it will embody the plea agreement’s disposition or impose a less onerous sentence. Here, the court deferred its decision on whether to accept the plea agreement at the change-of-plea hearing—even though it did not explicitly state this deferral. The court properly considered the plea agreement anew at sentencing and ultimately accepted it by imposing the maximum seven-year sentence the agreement contemplated. No plain error occurred because defendant was prejudiced in no way: he received the same seven-year sentence he had agreed to in the plea agreement, and the court substantially complied with Rule 11’s requirements.
Second, the court properly handled victim-impact statements. Although the father’s statement included references to alleged other victims and the victim herself mentioned a specific incident of forced oral sex outside the record, the court explicitly agreed—when defendant objected—that it would not consider allegations outside the written record, only the impact on the family. Because the court agreed not to consider the challenged information, the point became moot; no advance notice or opportunity for rebuttal was required under Vermont Rule of Criminal Procedure 32. The court’s later statements that it had “heard” and “considered everything” the victim said were mere rhetorical statements that did not override its specific commitment to disregard out-of-record allegations.
Third, the court correctly refused to credit defendant for time spent on restrictive curfew. Under 13 V.S.A. § 7031(b) and the Vermont Supreme Court’s prior holding in State v. Byam, a defendant receives credit for time “in custody” only when subject to physical control of the Department of Corrections or a court-ordered treatment facility. Pretrial curfew, even if restrictive, does not satisfy this standard because the government does not assume responsibility for the defendant’s whereabouts. Defendant’s attempt to reframe his request as consideration of “hardship” rather than credit was unavailing; both approaches seek the same result—reducing time served—and both are prohibited by law.
Key Takeaways
- Accepting a defendant’s guilty plea does not bind a trial court to a plea agreement; courts may defer acceptance of plea agreements even without explicit notice to the defendant, provided the court ultimately accepts the agreement and imposes a permissible sentence.
- Victim-impact statements may include references to matters outside the record at sentencing, but when a defendant objects, if the court agrees not to rely on such information, no error occurs and no advance notice is required under criminal procedure rules.
- Pretrial restrictive curfew does not qualify for sentencing credit under Vermont law because it does not constitute “custody” in the statutory sense; only time under DOC physical control or in court-ordered treatment facilities generates credit.
- Plain error review in sentencing matters requires showing not only error but also actual prejudice; when a defendant receives the same sentence contemplated in a plea agreement, no prejudice results even if procedural missteps occur.
Why It Matters
This decision provides important guidance on plea agreement procedures and clarifies the boundary between trial court discretion and defendant rights. For practitioners, the ruling confirms that courts need not explicitly state deferral of plea agreements at the plea hearing; the question is always what the totality of circumstances shows, reviewed at the sentencing hearing. Defendants facing contested sentencing on split sentences should understand that acceptance of their pleas does not lock in the plea agreement’s sentencing recommendation. The decision also protects broad victim participation rights—victims may testify about impact and related circumstances at sentencing even if some details fall outside the record—while preserving defendants’ ability to challenge reliance on out-of-record allegations by objection and request for limitation.
For sentencing courts and correctional administrators, the decision reaffirms the bright-line rule against crediting pretrial conditions of release. This reflects a policy judgment that pretrial release conditions—even burdensome ones like twenty-four-hour curfew—serve different purposes than post-sentencing custody and should not reduce sentences. The ruling may disappoint defendants who spent months under restrictive curfew anticipating some credit, but it eliminates uncertainty and treats all released defendants uniformly regardless of condition harshness.