David Boglioli in 2008.
Boglioli had asked the court to reduce his sentence, claiming that he has health issues that aren’t being treated in prison: that he wasn’t the aggressor in the incident: that the court improperly considered mitigating and aggravating factors that were not an element of his manslaughter conviction: and that his sentence precludes him from participating in prison programs and qualifying for parole.
Carroll, who was the presiding judge in Boglioli’s trial, sentenced him to 10 to 15 years in prison. Boglioli’s defense attorney, Mark Harnett, had argued for a much lighter sentence of two to five years, with all but the 14 months he’d already served suspended. The state requested a sentence of 12 to 15 years. The department of corrections recommended a minimum sentence of five years.
In her latest decision, Carroll rejected each of the arguments offered in his recent appeal. Boglioli said he hasn’t received treatment for his vascular disease, hepatitis B, anemia, and kidney failure, all of which he said were diagnosed since he began serving his sentence at a correctional facility in Arizona. In his statement, Boglioli wrote “I am suffering and deteriorating needlessly due to lack of medical treatment, which may very well result in my untimely death.” Quoting from case law, Carroll noted that the sentence reconsideration law under which Boglioli brought the appeal was to review only the “circumstances and factors present at the time of the original sentencing.” Carroll said that Boglioli’s health was considered at his sentencing in 2009, and declined to consider new health concerns. “The current health issues raised by defendant’s letter are improper at the sentence reconsideration stage.” Carroll also quoted from a Supreme Court decision in which the court found that “sentence reconsideration is not the right remedy for an alleged lack of prison health care services.”
Carroll also declined to reconsider the sentence based on Boglioli’s claim that he was not the aggressor in the confrontation that led to his shooting of Riccitelli. Carroll said that the circumstances of the shooting were taken into consideration in his original sentencing. During the trial Boglioli had claimed that Riccitelli threatened him with an ax handle, but several witnesses testified that they saw nothing in Riccitelli’s hands. “The facts that came out during the trial were unclear as to whether the victim was armed with a weapon at the time of the shooting; the evidence on this issue was inconsistent,” Carroll wrote. “(Boglioli) was convicted of voluntary manslaughter and the court sentenced him based upon this. It would be improper for the court to now find that (Boglioli) was acting in self-defense and to modify his sentence, contrary to the jury’s verdict, and the court declines to do so.”
In his appeal, Boglioli also argued that Carroll improperly considered mitigating or aggravating facts that were elements of second degree murder “which the jury rejected before finding (Boglioli) guilty of voluntary manslaughter. Carroll said she “properly considered all the circumstances of the offense and of (Boglioli’s) history, which is permissible.”
Boglioli also argued that a reduced sentence would allow him to be paroled earlier, and would allow him to take advantage of certain prison programs. Carroll said that she considered a shorter minimum sentence in her 2009 sentencing decision. “There would be no valid reason to adjust that at this time because the court still finds that it is an appropriate minimum.” Carroll also noted that “The court made no statements at the time of sentencing that it expected a certain parole date or that (Boglioli) participate in certain programming within the department of corrections.”
Boglioli was originally charged with second degree murder and, if convicted, would have faced a sentence of 20 years to life. But in her instructions to the jury after Boglioli’s trial, Judge Carroll told jurors they could find Boglioli guilty of voluntary manslaughter if they believed his “mental state was influenced by extenuating circumstances, such as sudden passion or great provocation that would cause a reasonable person to lose self-control.” During their second day of deliberations, jurors sought clarification of the state’s burden of proof in disproving self-defense. In a note to the court, jurors asked whether they should acquit if they believed two of the three elements of self-defense had been met, but the state had “disproven one of (the elements).” After 18 hours of deliberation, jurors found Boglioli guilty of the lesser charge, which carries a penalty of up to 15 years in prison.
Before handing down Boglioli’s sentence, Judge Carroll said there were both mitigating and aggravating factors in the case. She said the evidence presented indicated Riccitelli could be a violent man, and that the jury found that Boglioli had been provoked. But she said Boglioli could have taken a different course of action on the day of the shooting. She said the lesser sentence recommended by the defense, and the department of corrections recommendation for a five-year minimum sentence, would “devalue” Riccitelli’s life. “A more substantial sentence is necessary to put a value on (Riccitelli’s) life,” she said.
Last month’s action was Boglioli’s second appeal since his conviction. In June 2011, Boglioli argued for the reversal of his conviction before the Vermont Supreme Court. In that appeal, Boglioli claimed he was denied a fair trial because he was prohibited from introducing evidence of Riccitelli’s threats against other people, and that the evidence presented by the state was insufficient to find him guilty of voluntary manslaughter. Boglioli also claimed that Carroll erred in her instructions to the jury regarding the elements of a finding of second degree murder or voluntary manslaughter. In their opinion, Supreme Court justices rejected the arguments and upheld the conviction.
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