State v. Martinson

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-168

                            NOVEMBER TERM, 1990



State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Chittenden Circuit
                                  }
David Martinsen                   }
                                  }          DOCKET NO. 1647-4-88CnCr


             In the above entitled cause the Clerk will enter:


     The district court's order denying defendant's motion for sentence
reconsideration is affirmed.

     Defendant, under a plea agreement, pleaded guilty to a charge of
assault and robbery and of violating a condition of release.  Pursuant to
the agreement, he was sentenced to a term of one to six years for the
assault and robbery and a concurrent one year sentence for the release
condition violation.  Within ninety days of the sentencing, defendant filed
a motion for sentence reconsideration pursuant to 13 V.S.A. { 7042(a).  The
court held two hearings on defendant's motion at which defendant presented
information that the time he was serving was longer than that which was
anticipated at sentencing, although it was within the sentence imposed.  The
court denied the motion on the ground that the court was without power to
reconsider the sentence because defendant had only presented information
concerning developments occurring after sentencing.  Defendant then brought
this appeal claiming the trial court withheld its discretion by ruling that
it was without jurisdiction.

     Sentence reconsideration under { 7042(a) is not meant to supplant the
parole process.  State v. LaPine, 148 Vt. 14, 15, 527 A.2d 1150, 1150 (1987)
(per curiam).  It is, however, a proper use of sentence reconsideration to
change a sentence imposed under a mistake about its legal effect on
defendant's incarceration.  See United States v. Slutsky, 514 F.2d 1222,
1229 (2d Cir. 1975).  Such reconsideration is not an interference with the
parole process' review of defendant's behavior since sentencing, but rather
it is an inquiry into the understanding of the sentencing judge at the time
of sentencing.

     While defendant argues that the sentencing judge acted under a mistake
about the sentence's effect on defendant's incarceration, our review of the
record leads us to a different conclusion.  The actual length of
defendant's incarceration was dependent in part on how the corrections
department exercised its discretion in classifying him and placing him in
rehabilitative programming.  These decisions are clearly within the
discretion of the corrections department.  While the sentencing judge made a
prediction about how these decisions might be made, he properly understood
that the department, not the sentencing judge, had control over these
decisions.  See United States v. Sheppard, 612 F. Supp. 194, 201 (S.D.W. Va.
1985)(review of record demonstrated that sentencing judge had no intention
contrary to that of Parole Commission); cf. United States v. Addonizio, 442 U.S. 178, 190 (1979)("[J]udge has no enforceable expectations with respect
to the actual release of a sentenced defendant short of his statutory
term.").  Since defendant failed to show that the sentencing judge acted
under a mistake as to the effect of the sentence upon defendant's
incarceration, affirmance is appropriate.

    Affirmed.


                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Louis P. Peck, Associate Justice (Ret.),
                                   Specially Assigned