Murder sentence cut by 15 years

A local man convicted of murdering an East Wallingford tattoo parlor owner in 1997 had 15 years taken off his minimum sentence Monday, which leaves him in a position to return to the community shortly, according to his attorney.

Eric Marallo, 40, was convicted in Rutland criminal court in December 2000 of second-degree murder for the stabbing death of Dwayne Bernier, 45, whose body was found on the floor of his East Wallingford tattoo shop, The Dragon’s Leyr, on Nov. 23, 1997.

Marallo stabbed Bernier to death with a Gurkha knife in order to rob him.

Marallo was sentenced on April 13, 2001, to serve a minimum of 45 years in prison. On Wednesday, however, Judge David Barra imposed a sentence with a minimum jail term of 30 years, which had the support of Rutland County State’s Attorney Rose Kennedy and attorney Paul Volk, who represents Marallo.

Marallo’s sentence was reduced based on an argument from Volk that Marallo had received ineffective counsel from his court-appointed attorneys during his 2000 trial. The attorneys should have raised issues based on two U.S. Supreme Court cases, Apprendi v. New Jersey and Ring v. Arizona, Volk said.

Referred to in court Wednesday as Apprendi-Ring arguments, the two cases are based on the Sixth Amendment cases and prevent judges from taking certain actions, including enhancing criminal sentence, based on issues that were not decided by juries.

On Wednesday, Kennedy said Volk had approached her in early summer with his proposed motion for post-conviction relief, or PCR. After many discussions, Kennedy said she agreed to make the same offer to Marallo that had been made by one of her predecessors, James Mongeon: a minimum sentence of 30 years in prison.

“I’m honest about why I’m doing this, judge. With a PCR challenge, if I guess wrong and the (Vermont) Supreme Court rules against me, in this case, maybe on the surface it would be coming back to resentencing. But if the issue is whether that particular jury should have been given the facts to consider aggravating and mitigating factors, realistically, I don’t know how that would happen. That could potentially mean I start at ground zero and present a case to a new jury. That, to me, is too risky,” she said.

Volk asked Judge David Barra to accept the sentencing recommendation because “the way that Mr. Marallo was sentenced was constitutionally deficient.”

Marallo’s record as an inmate has been “exemplary,” Volk added.

“I’ve never had a case in which so many folks who have been responsible for supervising a person had so many good things to say about him. He was a very young man at the time of the commission of the events here. He’s grown up in a different setting but he’s grown up a lot. He’s definitely become a different person,” he said.

Given a chance to address the court, Marallo said nothing about Bernier or the murder but just said he had an “immense amount of gratitude” to have the issues raised in the proposed PCR motion addressed by the court on Wednesday.

Kennedy said her office had contacted Bernier’s family to let them know about the re-sentencing and why it was happening, but she said she had gotten no feedback about whether they would attend the sentencing. No members of Bernier’s family were in the courtroom on Wednesday.

Marallo’s parents attended the hearing but declined to comment afterward.

Volk said Marallo’s family was “obviously quite happy with the result that was obtained here.”

According to Volk, Marallo has now served his minimum sentence because of the sentencing reduction. However, Volk said the decision would have to come from the Vermont Department of Corrections.

When Marallo has been assessed about whether he’s ready to enter and complete re-integration programming, he would likely be released to the community under furlough, which would mean he remains under state supervision but not in a prison setting.

The next step for the completion of Marallo’s sentence would likely be parole, Volk added.

Volk said he would not discuss why he had not pursued a retrial or some other method of reducing the 30-year sentence even more, because it fell under attorney-client privilege.

patrick.mcardle

@rutlandherald.com