State v. Parker

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-011

                            OCTOBER TERM, 1990


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Rutland Circuit
                                  }
Fred C. Parker, Jr.               }
                                  }          DOCKET NO. 1295-9-87RCr


             In the above entitled cause the Clerk will enter:


     Defendant pled no contest to charges of burglary, retail theft, and
petit larceny, and was sentenced to an aggregate term of one-to-six-years
imprisonment.  Defendant now appeals from the judgment of conviction, asking
this Court to strike a condition of the plea agreement limiting his right to
move for reconsideration of his sentence.   Defendant signed a plea agree-
ment which included the following provision:

          5)  DEFENDANT hereby understands and waives his right
          under 13 V.S.A. { 7042 to request the Court for recon-
          sideration of the sentences(s) imposed under this
          agreement, except to the extent that the penalty imposed
          is greater than that recommended by the state herein.

Defendant asserts that since the right to move for reconsideration of
sentence is "conferred absolutely" by statute, any waiver of this right as a
condition of a plea agreement is per se invalid.  Defendant argues that his
situation is directly analogous to State v. Buck, 139 Vt. 310, 428 A.2d 1090
(1981), where we invalidated a condition of a deferred sentence agreement
which purported to restrict the defendant's right of appeal.

     This case is in a different procedural posture than Buck.  There,
defendant appealed on points raised below which were reserved for appeal in
the waiver agreement.  This Court addressed the waiver issue sua sponte.
Here, defendant raises his claim for the first time on appeal.  He neither
moved for reconsideration of sentence nor challenged the validity of the
plea condition in the trial court.  It is settled law that absent plain
error, issues neither litigated nor decided below will not be addressed for
the first time on appeal.  State v. Hunt, 150 Vt. 483, 499, 555 A.2d 369,
379 (1988).  At the very least, defendant's claim is premature, as the trial
court was never given the opportunity to grant or deny a motion for
reconsideration of sentence.  There was, in essence, no lower court decision
from which to appeal.
     Defendant contends that he was unable to move for reconsideration in
the trial court because the State would have attacked the filing of such a
motion as a breach of the plea agreement and as grounds for rescission.  We
recognize that plea agreements are contractual in nature, and that the
parties are entitled to rely upon the provisions of the plea bargain. See,
e.g., State v. Day, 147 Vt. 93, 95, 511 A.2d 995, 997 (1986); Creaser v.
State, 139 Vt. 315, 317, 427 A.2d 359, 360 (1981).  We do not agree, how-
ever, that testing the validity of the waiver, or merely filing a motion
for sentence reconsideration, would constitute a material breach of the plea
agreement.  Cf. Cass-Warner Corp. v. Brickman, 126 Vt. 329, 336, 229 A.2d 309, 315 (1967) (actionable breach "went to the essence of the agreement");
See also United States v. Packwood, 687 F. Supp. 471, 473-75  (N.D. Cal.
1987) (government may rescind plea agreement only upon showing that: (1) the
agreement by its terms was revocable upon breach by defendant; (2)
defendant breached the agreement; (3) the breach was material; and (4)
defendant had notice and an opportunity to cure any breach).  Although the
State may respond to defendant's motion by asserting that he has waived his
right to sentence reconsideration, the filing of the motion does not, by
itself, place defendant at risk of rescission.

     Because we hold that defendant's claims must be raised initially in the
trial court, we do not reach the question of whether a plea condition in
which a defendant waives the right to move for sentence reconsideration is
facially invalid.  Nor do we examine whether, if such waivers are not per se
invalid, sentence reconsideration should be permitted on a case-by-case
basis under compelling circumstances.

     Affirmed.







                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[x]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


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