State v. Powell

State v. Powell  (96-475); 167 Vt. 294; 707 A.2d 272

[Filed 26-Nov-1997]

       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-475


State of Vermont                             Supreme Court

                                             On Appeal from
    v.                                       District Court of Vermont,
                                             Unit No. 3, Essex Circuit
 
Aaron J. Powell                              June Term, 1997


Alan W. Cheever, J.

       Jan R. Paul, Essex County State's Attorney, St. Johnsbury, for
  plaintiff-appellee

       Rachel A. Hexter of Franco & Hexter, P.C., Newport, for
  defendant-appellant


       PRESENT:  Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J.  Defendant appeals his conviction of felony escape (13
  V.S.A. § 1501(a)(2)) on the grounds that (1) when he escaped he was not "in
  custody as a result of a felony" within the meaning of the statute, and (2)
  the court erred by denying his motion to enforce a deferred-sentencing
  agreement.  We affirm.

       On September 15, 1994, defendant's girlfriend called the police and
  alleged that defendant had assaulted her.  An officer arrived and arrested
  defendant without a warrant and brought him to the St. Johnsbury police
  barracks for processing.  While the officer was drafting his charging
  affidavit, defendant left the barracks and was apprehended a few hours
  later as he was hitchhiking along I-91.

       Following the escape, the officer completed his charging affidavit,
  dated the same day as the arrest and escape, which included the
  misdemeanors of simple assault (13 V.S.A. § 1023) and reckless endangerment
  (13 V.S.A. § 1025).  The affidavit also included a charge of escape from
  custody (13 V.S.A. § 1501), which was not identified as either a
  misdemeanor or a felony.

 

       The State subsequently charged defendant with simple assault, reckless
  endangerment, first-degree aggravated domestic assault (13 V.S.A. §
  1043(a)(2)), and felony escape.  The complaining witness, however, later
  recanted her statement, and the State's Attorney withdrew all charges
  except for felony escape.  Prior to trial, defendant moved to dismiss the
  felony escape charge on grounds that dismissal of the underlying criminal
  charges negated the offense of escape and that the information charging
  felony escape was not supported by the facts underlying his escape as a
  matter of law.  Following denial of the motion, defendant was convicted of
  the escape charge in a jury trial.  The court denied defendant's motion for
  reconsideration, and the present appeal followed.

                                I.

       The first issue is whether defendant was in custody as a result of a
  felony.  Defendant concedes that he was in lawful custody when he left the
  police barracks.  He argues, however, that he had been charged only with
  misdemeanor offenses at the time of his escape.  As a result, defendant
  claims that he was not "in custody as a result of a felony" for purposes of
  13 V.S.A. § 1501(a)(2).(FN1)

       To obtain a conviction under 13 V.S.A. § 1501(a)(2), the State must
  prove that defendant was in lawful custody and escaped or attempted to
  escape from an officer.  The crime is a misdemeanor if the person was in
  custody as a result of a misdemeanor, and it is a felony if the person was
  in custody as a result of a felony.

       Custody, as used in the escape statute, is not limited to custody
  obtained after the state's attorney files formal charges, or the State
  proves defendant's actual culpability in the underlying offense.  See State
  v. Turgeon, 165 Vt. 28, 34, 676 A.2d 339, 342-43 (1996) (custody arises
  when defendant is brought under officer's control); State v. Blaine, 133
  Vt. 345, 350, 341 A.2d 16, 19 (1975).  In Blaine, we considered whether an accused could be
  convicted of escape from lawful custody of a police officer when the escape
  occurred before the accused was convicted of the underlying felony.  133
  Vt. at 350, 341 A.2d  at 19.  We framed the critical issue as "whether . . .
  lawful custody existed at the time respondent took his departure from the
  police station, after . . . the officer attempt[ed] arrest."  Id. at 350,
  341 A.2d  at 19.  We reversed the defendant's conviction not because he had
  not been convicted, but because he had not been properly arrested.  The
  trial court, therefore, correctly concluded that "custody as a result of a
  felony" includes custody as a result of an arrest for a felony.  This is
  true whether or not formal charges had been brought at the time of the
  escape.  See State v. Stores, 816 P.2d 206, 210-11 (Alaska Ct. App. 1991)
  ("official detention for a felony" included arrest on felony charges).

       The question is how to determine whether defendant was in custody for
  a misdemeanor or a felony after his arrest, but before the State charged
  him with a felony.  Defendant argues, without citation, that the
  determining factor is the "custodial status" of the accused at the time
  that he commits the escape.  Defendant further argues that "custodial
  status" is not determined by the facts that precipitated the arrest, but by
  the most recent criminal procedure performed by the State, e.g., a
  warrantless arrest, an arrest based on a warrant, or a trial and
  conviction. Defendant concludes, therefore, that we should determine
  whether he was in custody for a felony or a misdemeanor based on the
  charges stated in the police officer's charging affidavit, rather than by
  the subsequent charges filed by the State's Attorney.  Because defendant
  escaped before the State charged him with a felony, and the officer's
  charging affidavit charges defendant only with misdemeanors, defendant
  would have us conclude that he was in custody as a result of a misdemeanor.

       First, we agree with defendant that whether he was arrested for a
  misdemeanor or felony cannot be determined by the subsequent charges filed
  by the State's Attorney.  V.R.Cr.P. 3(a) makes clear that warrantless
  arrests other than for a crime committed in the presence of an officer may
  be based only on probable cause that a felony, misdemeanor, or other
  offense or

 

  violation of a specified order has occurred, as set forth in the rule.  See
  State v. Stanislaw, 153 Vt. 517, 527, 573 A.2d 286, 292 (1990).  In a
  prosecution for escape before conviction, the State must show that the
  defendant was arrested with probable cause to believe that he had committed
  the crime for which he was arrested.  See People v. Maldonado, 658 N.E.2d 1028, 1031 (N.Y. 1995).  A finding of probable cause must be based on
  substantial evidence. V.R.Cr.P. 4(b); see also State v. Towne, 158 Vt. 607,
  615, 615 A.2d 484, 489 (1992) (holding that court must examine totality of
  circumstances to determine whether substantial evidence supports issuance
  of search warrant).  The final clause of V.R.Cr.P. 3(a)(6) states that
  "[p]robable cause shall be based on the same evidence required for issuance
  of a summons or warrant under Rule 4(b)."

       Because the evidence required for a summons or warrant can be only
  evidence that is available at the time the summons or warrant is sought, it
  follows that a warrantless arrest may be supported only by evidence
  available at the time the arrest is made.  Supporting this construction is
  the fact that the statute speaks in the past tense: "if the person was in
  custody as a result of a felony" he or she is guilty of felony escape.  13
  V.S.A. § 1501(a)(2) (emphasis added); cf. Commonwealth v. Janis, 583 A.2d 495, 497 (Pa. Super. Ct. 1990) (noting past tense in similar statute).

       A judicial inquiry into probable cause for a warrantless arrest is
  therefore an examination of what facts were known to the arresting officer,
  not what may have developed subsequently. That examination necessarily
  occurs, as in the present case, after the arrest, at a hearing challenging
  its validity.  See State v. Blais, 163 Vt. 642, 643, 665 A.2d 569, 570
  (1995).  The State may no more justify a warrantless arrest on the basis of
  a subsequent indictment or information than it might argue in seeking an
  arrest warrant that probable cause is supported by

 

  its intention to indict the suspect for a felony.  See Janis, 583 A.2d  at
  498.(FN2)

       Nevertheless, the State argues that the arresting officer erred in
  labelling the offenses as misdemeanors in the charging affidavit, and that
  such an error does not conclusively establish the crimes for which
  defendant was arrested.  We agree.  Considering the facts known to the
  officer at the time the arrest was made, the trial court properly concluded
  that those facts were sufficient to support an arrest for the commission of
  a felony.  The facts set forth in the officer's charging affidavit were
  obtained from a sworn statement of defendant's girlfriend.  The affidavit
  states in part that defendant placed a loaded pistol to her head and
  threatened to shoot her.  This fact, in conjunction with the other
  information set forth in the affidavit, provided the officer with
  sufficient probable cause to support an arrest for aggravated domestic
  assault under 13 V.S.A. § 1043(a)(2), a felony.

       Moreover, we note that the grading of the escape offense does not turn
  on whether defendant had notice of whether the underlying crime he is
  accused of is a felony or a misdemeanor.  Cf. State v. Walker, 891 P.2d 942, 946-47 (Ariz. Ct. App. 1995) (notice of charge not necessary under
  Arizona escape statute).  To permit a defendant to complain that he was
  unaware of the nature of the charges at the time he fled would reward
  escape from custody at the earliest opportunity and would significantly
  hamper ordinary law enforcement efforts. Rather, the grading of the crime
  is a legislative strategy to fit the punishment for escape to the

 

  severity of the crime for which a defendant is arrested, on the theory that
  the more serious the underlying offense, the greater the danger to the
  public.  Maldonado, 658 N.E.2d  at 1030.

       Despite the officer's erroneous labelling of the charges as
  misdemeanors, the officer had probable cause to arrest defendant for a
  felony at the time the arrest was made.  We, therefore, agree with the
  trial court's conclusion that defendant escaped from "custody as a result
  of a felony" in violation of 13 V.S.A. § 1501(a)(2).  See State v. Hollis,
  161 Vt. 87, 93, 633 A.2d 1362, 1365 (1993) ("[T]he validity of an arrest
  hinges upon whether the officer had probable cause to arrest, not whether
  the officer articulated the correct basis for the arrest.").

                                     II.

       Defendant next argues that the current state's attorney breached a
  deferred-sentence agreement entered into by a previous state's attorney
  approximately one year before the case at bar was prosecuted.  Defendant
  argues that, as a result of the breach, he is entitled to specific
  performance of the terms of the agreement. The State responds that
  defendant was the first to breach the agreement by subsequently filing a
  motion to dismiss the charges against him.  We need not determine whether
  defendant's filing of a motion to dismiss breached the agreement, however,
  because we find that defendant explicitly repudiated the
  deferred-sentencing agreement.

       Deferred-sentencing agreements are authorized under 13 V.S.A. § 7041,
  which allows a court, after an adjudication of a defendant's guilt, to
  defer sentencing and place the defendant on probation "if a written
  agreement concerning the deferring of sentence is entered into between the
  state's attorney and the [defendant]."  13 V.S.A. § 7041(a); State v.
  Pierce, 163 Vt. 192, 194-95, 657 A.2d 192, 194 (1995).  A deferred-sentence
  agreement is a contract and will be construed in accordance with contract
  law.  State v, Murray, 159 Vt. 198, 205, 617 A.2d 135, 139 (1992); cf.
  State v. Duffy, 151 Vt. 473, 477, 562 A.2d 1036, 1038 (1989) (probation
  agreement construed as contract).

       Defendant entered into a deferred-sentencing agreement on December 8,
  1994, with the then state's attorney.  Pursuant to the agreement, defendant
  was given a period of one year to

 

  plead guilty to the offense and, after a preliminary sentencing
  investigation, the trial court would have decided whether or not to order a
  deferred sentence.(FN3)  Defendant, however, never pleaded guilty to the
  charge of escape.  Instead, he decided to proceed to trial.  In a "Motion
  in Opposition to Continue" dated and filed with the Essex District Court on
  March 22, 1995, defendant wrote, "I turned down a deferred sentence of
  which after one year the charge would be null and void.  I did this because
  of the stigma attached to pleading guilty . . . to a felony charge that
  doesn't apply to the circumstances."  It was not until May 16, 1996, that
  defendant moved the trial court to enforce the terms of the
  deferred-sentence agreement -- more than five months after the agreement
  had expired.  We hold, therefore, that defendant repudiated the agreement
  and cannot now seek to enforce it.

       Affirmed.



                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes



FN1.  13 V.S.A § 1501(a)(2), states in relevant part, that a person
  who, while in lawful custody "escapes or attempts to escape from an
  officer, if the person was in custody as a result of a felony, shall be
  imprisoned for not more than ten years or fined not more than $5,000.00, or
  both."  (Emphasis added.)

FN2.  The defendant in Janis was convicted of shoplifting and felony
  escape, the latter based on the defendant's prior criminal record, of which
  the arresting officer was unaware at the time of the warrantless arrest. 
  The court on appeal held that the state was limited by what the arresting
  officer knew at the time of the arrest, stating:

     In the case now before us, the Commonwealth urges us to
     use the grading section of the retail theft statute, which determines
     the sentence there to be applied, and bootstrap that grading section
     onto the grading section of the escape statute.  This would result
     in our declaring it to be a felony when one walks away from a
     negligently attached handcuff while being held for shoplifting
     $38.96 worth of goods.  We decline this invitation.

FN3.  The trial court would not have been bound to accept the
  deferred-sentence agreement. See Pierce, 163 Vt. at 197, 657 A.2d  at 195-96
  (trial court has final say whether to accept or reject agreement).