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 13 V.S.A. § 3252(a)(1) and (c). While the case was pending, Hirzel was released on conditions that included a curfew, which the court relaxed on several occasions. The parties entered a plea agreement calling for a split-to-serve sentence, with the length of the incarceration portion to be contested at sentencing within a range of three to seven years.
At the May 2025 sentencing hearing, the victim, her father, and her mother delivered impact statements. The victim’s father alluded to other potential victims and criticized law enforcement’s handling of related investigations. The victim herself described an additional uncharged incident. Hirzel objected to these portions, and the court repeatedly stated on the record that it would not consider any allegations outside the record—only the impact of the charged offenses on the victim and her family. The court ultimately sentenced Hirzel to the maximum split of seven years to serve, with longer suspended terms running concurrently, consistent with the upper end of the plea agreement.
Hirzel appealed on three grounds: that the court had already accepted the plea agreement at the change-of-plea hearing and therefore improperly reserved the right to reject it at sentencing; that the court improperly considered unreliable information in the victim-impact statements; and that the court abused its discretion by refusing to treat his forty months on restrictive curfew as a mitigating hardship warranting a reduced sentence.
The Court’s Holding
The Vermont Supreme Court unanimously affirmed the sentence on all three grounds. On the plea-agreement issue, the court held that the trial court had not accepted the plea agreement at the change-of-plea hearing. Under V.R.Cr.P. 11(e)(3), a court is bound by a plea agreement only when it affirmatively informs the defendant that it will embody the agreement’s disposition in the judgment. The trial court’s statement that it would “accept the pleas” referred to the constitutional sufficiency of the guilty pleas themselves—not the plea agreement—and its scheduling-context “Okay” carried no greater legal significance. The court had therefore deferred its decision, and although it did not explicitly say so, no prejudicial plain error resulted because the sentence ultimately imposed fell within the range the defendant had agreed to.
On the victim-impact statements, the court found no error because the trial court had expressly declined to consider the challenged material. After Hirzel objected, the sentencing judge stated on the record that it would disregard allegations of other incidents and consider only the offense’s impact on the victim and family. Under State v. Russo, once a court agrees not to consider disputed information, the issue becomes moot. The court characterized the judge’s later statement that he “heard [the victim’s] words clearly” and “considered everything she said” as a “rhetorical blemish” that did not override his earlier, explicit limitations.
On the curfew-credit issue, the court applied its 2017 bright-line rule from State v. Byam, which overruled the earlier State v. Kenvin decision and holds that pretrial curfew under conditions of release does not constitute being “in custody” under 13 V.S.A. § 7031(b). The court rejected Hirzel’s reframing of the request as a “hardship” consideration rather than formal credit, finding it functionally identical—both sought to reduce his time to serve based on curfew time, which Byam prohibits.
Key Takeaways
- A trial court’s acceptance of a defendant’s guilty plea is legally distinct from acceptance of the plea agreement; a court is not bound by the agreement unless it explicitly informs the defendant it will embody the agreement’s terms in the sentence.
- When a sentencing court expressly agrees not to consider information challenged by the defendant under V.R.Cr.P. 32(c), further objections to that information become moot and do not constitute reversible error.
- Vermont’s bright-line rule from State v. Byam bars any sentence reduction—whether framed as formal credit or “hardship” mitigation—for time spent under pretrial restrictive curfew, because such curfew does not place a defendant in anyone’s physical custody.
- Plain error at sentencing requires demonstrated prejudice; a defendant sentenced to terms within the range he agreed to cannot show the substantial prejudice necessary for reversal.
Why It Matters
This decision reinforces Vermont’s demanding standard for what constitutes a court’s “acceptance” of a plea agreement, making clear that defendants and counsel cannot rely on a court’s acceptance of a guilty plea—or ambiguous scheduling remarks—as a guarantee that the plea agreement itself is locked in. Defense attorneys must ensure the sentencing court affirmatively states it will be bound by the agreement’s terms before treating the matter as settled.
The court’s firm reaffirmation of Byam’s bright-line curfew rule is equally significant for practitioners. Defendants who spend extended periods under restrictive pretrial conditions will find no relief at sentencing, regardless of how the request is framed. The ruling forecloses creative arguments that nominally avoid the label of “credit” while seeking the same practical reduction, signaling that Vermont courts will look to the substance—not the label—of such requests.