State v. Davis

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                   No. 90-282


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit

William Davis                                September Term, 1990



Matthew I. Katz, J.

William Sorrell, Chittenden County State's Attorney, and Cindy J. Maguire,
  Deputy State's Attorney, Burlington, for plaintiff-appellee

Robert Andres, Burlington, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     MORSE, J.   Defendant appeals from a denial of his motion for sentence
reconsideration.  We are called upon to review the propriety of the trial
judge engaging in plea bargain discussions with the parties, suggesting a
specific plea bargain, which included a set sentence in exchange for a
guilty plea, and imposing a larger sentence after defendant rejected the
proposed agreement and was found guilty by a jury.  Under the facts of this
case, we find no error and affirm.
     The State has moved to dismiss the appeal because defendant did not
appeal the judgment of conviction.  We deny the motion because V.R.Cr.P.
35(a) permits a challenge that a sentence was "imposed in an illegal
manner."
     During trial on a charge of DUI, death resulting, 23 V.S.A. {{
1201(a)(2), 1210(e) (maximum penalty fifteen years), the trial judge
initiated a discussion about a plea agreement.  This discussion lasted about
five minutes and occurred off the record, but its substance was placed on
the record immediately after it concluded.  The on-record description of
the off-record discussion went as follows:
         [Prosecutor]:  It's my understanding at this point,
         after a discussion in chambers, that the Court has
         stated that it views this case as one [involving] a
         youth.  . . .  [The court] doesn't know all of the facts
         involved . . . but is viewing the case in somewhat of
         the neighborhood of a sentence . . . at this point that
         unless something changes in the Court's knowledge, a
         sentence of somewhere in the neighborhood of one to five
         years split with perhaps four months to serve is
         something that . . . the Court is at least considering
         as a possibility.  Is that a fair --

         THE COURT:  Yes.

         [Prosecutor]:  And is that your understanding?

         [Defense Counsel]:  It's my understanding from the
         things that I am hearing, that the Court is hearing,
         that would change its mind, is drug or alcohol abuse
         after the incident, or drug and alcohol related crimes
         after the incident.

         THE COURT:  Yes.

         [Defense Counsel]:  Let me talk to them.

The defense decided to take its chances with the jury and did not pursue the
plea agreement.  The jury returned a guilty verdict, and, after a pre-
sentencing investigation, defendant was sentenced to one to three years to
serve.
                                    I.
     Analogizing this case to one where a greater sentence after retrial --
all other factors being relatively equal -- is presumed vindictive,
defendant maintains this case warrants a reversal and resentencing by
another judge.  See State v. Percy, 1 Vt. L.W. 371, 375-76 (Oct. 5,
1990)(discussing the "presumption of vindictiveness" as it evolved in North
Carolina v. Pearce, 395 U.S. 711 (1969), and in later United States Supreme
Court cases).  We conclude, however, that the analogy is inapt and that the
presumption of vindictiveness does not arise when the sentencing judge has
participated in plea bargain discussions that did not lead to an agreement.
     A plea-bargained sentence is based on a variety of factors in addition
to those usually considered after an adjudication of guilt.  For instance,
the following factors are relevant to acceptance of a plea agreement:
           (i) the defendant is genuinely contrite and has shown
         a willingness to assume responsibility for his or her
         conduct;
           (ii) the concessions [as to charge or sentence] will
         make possible alternative correctional measures which
         are better adapted to achieving protective, deterrent,
         or other purposes of correctional treatment, or will
         prevent undue harm to the defendant from the form of
         conviction;
           (iii) the defendant, by making public trial unneces-
         sary, has demonstrated genuine consideration for the
         victims of his or her criminal activity, by desiring
         either to make restitution or to prevent unseemly
         public scrutiny or embarrassment to them; or
           (iv) the defendant has given or offered cooperation
         when such cooperation has resulted or may result in the
         successful prosecution of other offenders engaged in
         equally serious or more serious criminal conduct.

Standards for Criminal Justice { 14-1.8 (2d ed. 1980).  In most plea
agreements, one or more of these factors will apply, with the result that
plea-bargaining defendants as a class will receive more favorable treatment
than those convicted at trial.  Id., commentary at 49.  The commentary
drafters conclude this result is not unfair because, by making these
concessions, plea-bargaining defendants contribute to goals of criminal
justice, id., and thereby become more deserving of leniency from the
system.
     We cannot make a meaningful comparison between a plea-bargained
sentence, based on complex practical and policy considerations, and the
sentence the same judge would find acceptable after a fully litigated trial,
including a presentence investigation and sentencing hearing.  The two
scenarios are too dissimilar.
     In addition, as a practical matter, barring a court from giving a
greater sentence after trial than one it merely suggested as part of a plea
bargain would invite abuse of the plea-bargaining system:  defendants could
bargain for the best deal, then refuse to enter into the deal but still
retain the benefit.  Once a judge "committed" to a sentence, a defendant
could take his or her chances with the jury knowing that no matter what
information came out at trial, the defendant would risk no greater
sentence.  See United States v. Carter, 804 F.2d 508, 513-14 (9th Cir.
1986)("If defendants could demand the same sentence after standing trial
that was offered in exchange for a guilty plea, all incentives to plead
guilty would disappear.  Defendant would lose nothing by going to trial.
The reality of plea bargaining is that '[o]nce the defendant elects to go to
trial, all bets are off.'")(quoting Frank v. Blackburn, 646 F.2d 873, 887
(5th Cir. 1980)); see also Mitchell v. State, 521 So. 2d 185, 187-88 (Fla.
Dist. Ct. App. 1988) (defendant who rejects a plea-bargained sentence
assumes the risk of receiving a harsher sentence; a contrary rule would
render all plea negotiations futile because a defendant could reject an
offer yet still retain the benefit of the bargain).
     Ultimately, this scenario would work against defendants as a class
because judges would be reluctant to participate in plea bargaining.
Vermont is almost unique in allowing judges to participate in plea
bargaining, taking a position different from both the federal rule and from
the ABA Standards because it has recognized that defendants derive benefits
from judges' input.  See Reporter's Notes to V.R.Cr.P. 11(e)(1).  In
difficult cases, where the parties are deadlocked, the judge may be able to
help to fashion a compromise.
     The Standards for Criminal Justice do contain a provision protecting
defendants who decline plea bargains from vindictive sentencing.  Under {
14-1.8(b),
           The court should not impose upon a defendant any
         sentence in excess of that which would be justified by
         any of the protective, deterrent, or other purposes of
         the criminal law because the defendant has chosen to
         require the prosecution to prove guilt at trial rather
         than to enter a plea of guilty or nolo contendere.

But the commentary to this section makes clear that the mere disparity
between plea-bargained and post-trial sentences does not mandate a
presumption of vindictiveness.  Rather, for vindictiveness to be found "when
the trial judge is involved in plea bargaining and a harsher sentence
follows the breakdown in negotiations, the record must show that no
improper weight was given the failure to plead guilty."  Mitchell, 521 So. 2d  at 188.  Examples of vindictiveness toward defendants who exercise their
right to trial include cases where judges have commented on the high cost of
trials and on the defendant's insistence on exercising his or her right to a
trial, see United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir.
1982), or on the defendant's unquestionable guilt and the consequent lack of
necessity for a trial, see United States v. Hutchings, 757 F.2d 11, 13-14
(2d Cir.), cert. denied, 472 U.S. 1031 (1985).  See also In re Mandeville,
144 Vt. 608, 609, 481 A.2d 1048, 1049 (1984)(judge violated canon on
judicial impartiality by stating in a newspaper interview that defendants
who plead guilty show repentance while those who go to trial do not; judge's
statement had a chilling effect on defendants' exercising right to jury
trial).  Without such comments, vindictiveness will not be presumed.  No
such statements appear in the record here.

                                    II.
     The fact that V.R.Cr.P. 11(e) (court may not take part in plea
bargaining discussions unless proceedings are on the record) was violated is
of no moment here because the substance of the discussions admittedly was
placed on the record and defendant has shown no prejudice.  The purpose for
requiring these discussions to be of record is to review claims that the
court was prejudiced or exerted undue influence.  This purpose was
functionally satisfied in this case.  See Reporter's Notes to V.R.Cr.P.
11(e)(1).
     Affirmed.  Motion to dismiss appeal denied.

                                        FOR THE COURT:




                                        Associate Justice