Ladd v. Gorczyk

Ladd v. Gorczyk (2003-486); 177 Vt. 551; 861 A.2d 1094

2004 VT 87

[Filed 27-Aug-2004]

                                 ENTRY ORDER

                                 2004 VT 87

                      SUPREME COURT DOCKET NO. 2003-486

                               JUNE TERM, 2004

  Eugene Ladd	                       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Washington Superior Court
                                       }	
  John Gorczyk, Commissioner,	       }
  Department of Corrections	       }	DOCKET NO. 717-11-02 Wncv
   	
                                                Trial Judge: Alan W. Cook

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Plaintiff, Eugene Ladd, an inmate committed to the custody of
  the Commissioner of Corrections, appeals from a superior court judgment
  rejecting his claim that he was improperly denied an earned reduction of
  term from his minimum sentence.  We affirm.

       ¶  2.  The material facts are undisputed.  In October 2000, Ladd was
  sentenced on two counts of retail theft to a term of imprisonment of sixty
  days to five years.  Later that month, he received an additional concurrent
  sentence of zero to six months on a third count of retail theft.  The
  offenses for which these sentences were imposed occurred prior to July 1,
  2000.  In February 2002, Ladd received consecutive sentences on three
  additional convictions, one for grossly negligent operation of a vehicle,
  serious injury resulting, and two for false pretenses.  The offenses for
  which defendant was convicted occurred after July 1, 2000 when defendant
  was still under sentence for the earlier offenses.  The three 2002
  convictions resulted in a combined sentence of three years and six months
  to thirty years. 

       ¶  3.  In August 2002, Ladd filed a grievance with the Commissioner,
  alleging that the Department had erroneously failed to apply his earned
  reduction of term, or good time credit, toward his minimum sentence.  The
  grievance was denied, and Ladd sought review in the superior court under
  V.R.C.P. 75, which provides for review of governmental action not otherwise
  reviewable under V.R.C.P. 74.  The parties filed cross-motions for summary
  judgment.  In October 2003, the court issued a written decision, granting
  the Department's motion and denying Ladd's.  This pro se appeal followed.
   
       ¶  4.  Ladd contends the Department has erroneously applied the
  current statutory provision governing earned reduction of term, 28 V.S.A. §
  811(a) & (b), which became effective July 1, 2000 and provides for a
  reduction of time for good behavior only from the maximum term of
  imprisonment.  The prior version of the statute, the so-called 1994
  amendment, granted a reduction from both the maximum and minimum terms. 
  Ladd argues that he should receive good time credit from both his minimum
  and maximum terms, under the 1994 version of § 811, rather than solely from
  the maximum term.  Although the statute contains no provision for
  determining which version applies when an inmate has been given multiple
  sentences at different times, the Department's sentencing guidelines look
  to the date of the offense of the controlling or effective sentence.  Under
  the guidelines, if at least one crime comprising a part of the prisoner's
  effective sentence was committed between July 1, 1994 and July 1, 2000, the
  offender is entitled to a reduction from both the maximum and minimum terms
  pursuant to the 1994 regime.

       ¶  5.  In determining an offender's effective sentence, the
  sentencing guidelines look to 13 V.S.A. § 7032(c), which provides that when
  multiple or additional sentences to a prior sentence are imposed, a single
  sentence is computed as follows: (1) when terms run concurrently, the
  shorter minimum terms merge in and are satisfied by serving the longest
  minimum, and the shorter maximum terms merge in and are satisfied by
  discharge of the longest maximum term; and (2) when terms run
  consecutively, the minimum terms are added to arrive at an aggregate
  minimum, and the maximum terms are added to arrive at an aggregate maximum. 
  Ladd's current effective sentence of three years six months to thirty years
  is derived from adding the minimum and maximum sentences on the three
  offenses committed after July 1, 2000.  By the time the later offenses were
  committed, Ladd had served his minimum sentence on the earlier offenses;
  these minimums comprise no part of the current effective sentence.

       ¶  6.  Ladd's first argument is that material facts remain in
  dispute, rendering the summary judgment in favor of the Department
  improper.  See V.R.C.P. 56(c)(3) (summary judgment shall be rendered where
  pleadings show no genuine issue as to material fact and any party is
  entitled to judgment as a matter of law).  This argument arises because the
  Department "disputed" a number of allegations in Ladd's statement of
  undisputed facts.  The allegations involved issues of law rather than fact;
  our review shows that the material facts are uncontroverted. 

       ¶  7.  In his reply brief, Ladd returns to the argument made in the
  trial court - that a Connecticut decision, Rivera v. Comm'r of Corr., 756 A.2d 1264, 1268-71 (Conn. 2000) controls, and requires that his sentence be
  construed as "one continuous term" for purposes of reducing the sentence
  for good behavior. (FN1)  Because the "one continuous term" includes
  sentences for offenses that occurred before July 1, 2000, he argues that he
  is entitled to the 1994 good time regime.  He argues that the Department
  has no power to adopt regulations inconsistent with the "one continuous
  term" system.
 
       ¶  8.  Rivera held that an inmate was entitled to apply good time
  credit earned under an earlier sentence to a later sentence, but was
  decided under a Connecticut statute requiring multiple sentences to be
  "construed as one continuous term," id. at 1270, language that does not
  appear in the Vermont statute.  Thus, even if we were required to follow a
  decision from another state, the differences in the controlling statute
  make Rivera inapplicable.  Finally, we doubt that a "one continuous term"
  rationale could apply here.  Ladd had served his minimum sentences for the
  offenses committed prior to July 1, 2000 when the later sentences were
  imposed on him.  Thus, the older sentences were not part of the minimum
  sentence that he argues should be treated under the 1994 good time rules. 
  The designation of the later sentences as concurrent or consecutive did not
  actually apply to the minimums.  See In re Perry, 137 Vt. 168, 170, 400 A.2d 1013, 1015 (1979).  For this reason, Ladd has no colorable claim that
  the 1994 good time rules should apply to him.  In reaching this conclusion,
  we do not have to reach his challenge to the validity of the Department's
  rules governing which sentences retain the benefit of the 1994 good time
  statute.

       Affirmed.        




                                       BY THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice


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                                  Footnotes


  Note:  Chief Justice Amestoy sat for oral argument but did not participate
  in this decision.


FN1.  We normally need not address claims raised for the first time on
  appeal in an appellant's reply brief.  Robertson v. Mylan Labs., Inc., 2004
  VT ¶ 15, n.2, 848 A.2d 310.