State v. Oscarson

State v. Oscarson (2004-545); 179 Vt. 442; 898 A.2d 123

2006 VT 30

[Filed 14-Apr-2006]


       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.


                                 2006 VT 30

                                No. 2004-545


  State of Vermont                               Supreme Court

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

  Elsie Oscarson                                 January Term, 2006


  Edward J. Cashman, J.


  William H. Sorrell, Attorney General, and John Treadwell, Assistant
    Attorney General, Montpelier, for Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Allen, C.J. (Ret.),  Specially Assigned

       ¶  1.  DOOLEY, J.  Defendant Elsie Oscarson appeals from a district
  court order denying her motion for sentence reconsideration pursuant to
  Vermont Rule of Criminal Procedure 35(a).  Defendant argues that her
  sentence is illegal because she was sentenced for aggravated sexual assault
  when the elements found by the jury support a conviction only for sexual
  assault, a crime with a lesser potential punishment.  We hold that
  defendant's sentence is not illegal under Rule 35(a) because it is
  consistent with the conviction of aggravated sexual assault.  We affirm.
   
       ¶  2.  This case arises because Vermont has two separate sexual
  assault crimes, each involving minor victims, with overlapping elements. 
  The crime of sexual assault on a minor has a maximum penalty of 35 years of
  imprisonment. 13 V.S.A. § 3252(b).  The crime of aggravated sexual assault
  on a minor has a maximum penalty of life imprisonment.  13 V.S.A. §
  3253(b).  The significant difference in the elements of the crimes for
  purposes of this case is the requisite age of the victim.  The crime of
  sexual assault on a minor requires that the victim be under the age of
  sixteen.  13 V.S.A. § 3252(b).  The crime of aggravated sexual assault on a
  minor requires that the victim be under the age of ten.  13 V.S.A. §
  3253(a)(8).

       ¶  3.  In this case, it is undisputed that both victims were under the
  age of ten at the time of the offense.  Nevertheless, the State chose
  initially to charge defendant with only sexual assault pursuant to § 3252. 
  During the course of the case, however, the State moved to amend the
  charges to aggravated sexual assault on each victim in violation of § 3253. 
  At the hearing on the motion, both the prosecutor and defense counsel
  stated erroneously that this amendment did not change the elements of the
  offense. 

       ¶  4.  At trial, the jury instructions on the elements of aggravated
  sexual assault stated that the jury needed to find that the victims were
  under the age of sixteen, not ten as required by   3253(a)(8).  Defendant
  did not object to the jury instructions.  The jury found defendant guilty
  of aggravated sexual assault with respect to both minor victims, and the
  district court imposed two consecutive sentences of imprisonment of 35
  years to life, but suspended the sentence on one count.  Defendant appealed
  both convictions, but she did not raise the accuracy of the jury
  instructions or the validity of the sentences.  This Court affirmed the
  conviction for one count of aggravated sexual assault, but reversed the
  conviction for the count of aggravated sexual assault for which defendant's
  sentence had been suspended.  State v. Oscarson, 2004 VT 4, 176 Vt. 176,
  845 A.2d 337.  
   
       ¶  5.  On remand, defendant filed two motions, one asking the
  district court to resentence defendant on the remaining conviction and the
  other asking the court to reconsider the prior sentence.  The resentencing
  motion alleged that the sentence imposed on the reversed conviction had
  impermissibly influenced the sentence imposed on the affirmed conviction. 
  Before the motions were heard, defendant filed a second resentencing
  motion, arguing that her sentence violated the United States Supreme
  Court's recent decision in Blakely v. Washington, 542 U.S. 296 (2004),
  because the jury had not found that the victim was under the age of ten, an
  element required for the greater aggravated sexual assault penalty. 

       ¶  6.  The district court combined the sentence reconsideration motion
  and the first resentencing motion to determine whether the reversal of one
  of the convictions affected the sentence on the other affirmed conviction. 
  It determined that the reversal had no effect, denied the motions, and left
  the sentence on the affirmed conviction at imprisonment for 35 years to
  life.  The second resentencing motion, which is now labeled a motion for
  sentence reconsideration to correct an illegal sentence pursuant to Rule
  35(a), was denied by the district court because defendant failed to raise
  the alleged sentence illegality in the first appeal.  Defendant has
  appealed only this last decision, arguing that the district court should
  have granted the Rule 35(a) motion.

       ¶  7.  Normally, we review the denial of a motion for sentence
  reconsideration for abuse of discretion, examining whether the district
  court withheld discretion or exercised it on grounds clearly untenable or
  unreasonable.  State v. White, 172 Vt. 493, 501-02, 782 A.2d 1187, 1193
  (2001).  Here, however, the question is whether defendant's sentence is
  illegal.  This is a question of law, which we review de novo.  State v.
  Beauregard, 2003 VT 3,   4, 175 Vt. 472, 820 A.2d 183 (mem.).
   
       ¶  8.  Defendant argues that her sentence is illegal because the
  jury failed to find a necessary element of the offense of aggravated sexual
  assault pursuant to 13 V.S.A.   3253(a)(8), namely, that the victim was
  under the age of ten.  She claims that because the jury did not find this
  element, she cannot be sentenced for aggravated sexual assault, and thus
  her sentence exceeds the 35-year maximum term allowed for a conviction of
  sexual assault on a minor under   3252(b).  She then argues that because
  she was denied jury consideration of an element necessary to support her
  sentence, her sentence violates the rule set forth in Blakely in which the
  Supreme Court held that due process requires any facts supporting an
  enhanced sentence to be admitted by the defendant or found by the jury. 
  542 U.S.  at 303; see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
  (holding due process requires any fact that increases a criminal penalty
  beyond the statutory maximum to be submitted to a jury and proved beyond a
  reasonable doubt).

       ¶  9.  We do not reach the merits of defendant's argument.  For the
  reasons stated herein, we find that defendant's argument is actually a
  challenge to her underlying conviction, as opposed to an attack on the
  sentence or the sentencing procedure.  Defendant was convicted of
  aggravated sexual assault, and her sentence was within the maximum for that
  conviction.  Because defendant is actually challenging her conviction, she
  may not obtain the relief she requests as a result of sentence
  reconsideration to correct an illegal sentence pursuant to Rule 35(a).
  (FN1) 
       
       ¶  10.  According to Rule 35(a), a court "may correct an illegal
  sentence at any time and may correct a sentence imposed in an illegal
  manner within the time provided herein for the reduction of sentence."  An
  illegal sentence is one that is not authorized by law.  See, e.g., State v.
  Bruley, 129 Vt. 124, 130, 274 A.2d 467, 471 (1970) (finding sentence
  illegal where it had the same maximum and minimum terms in violation of 13
  V.S.A.   7031); see also Reporter's Notes, V.R.Cr.P. 35(a) ("An illegal
  sentence is one that is not authorized by statute.").  Defendant's sentence
  in this case is not illegal.  The record shows that defendant was convicted
  of aggravated sexual assault pursuant to 13 V.S.A.   3253(a)(8) and
  sentenced to imprisonment for 35 years to life.  The sentence imposed is
  within the statutory maximum of "life imprisonment or a fine of not more
  than $50,000.00, or both" for a person convicted of aggravated sexual
  assault.

       ¶  11.  Sentence reconsideration is a limited remedy.  See State v.
  Platt, 158 Vt. 423, 426, 610 A.2d 139, 142 (1992) ("[O]nly certain issues
  may be raised in a sentence reconsideration proceeding.").  Rule 35(a) is
  identical to former Federal Rule of Criminal Procedure 35(a). (FN2)  See 
  Reporter's Notes, V.R.Cr.P. 35 ("This rule is derived from Federal Rule 35
  . . . .").  Although this Court is not bound by interpretations of similar
  or identical federal rules in the federal courts, we frequently consult and
  follow them where we find them persuasive.  See Reporter's Notes, V.R.Cr.P.
  1 (noting that such decisions "are an authoritative source for the
  interpretation of identical or closely similar provisions of the Vermont
  rules").
                                                                       
       ¶  12.  In construing Federal Rule 35(a), the United States Supreme
  Court has held that "the narrow function of Rule 35 is to permit correction
  at any time of an illegal sentence, not to re-examine errors occurring at
  the trial or other proceedings prior to the imposition of sentence."  Hill
  v. United States, 368 U.S. 424, 430 (1962).  The petitioner in Hill could
  not raise through sentence reconsideration a claim that he was denied his
  right to make a statement on his own behalf prior to sentencing.  Id.

       ¶  13.  The federal appellate courts have interpreted Hill to prohibit
  the use of Federal Rule 35(a) to attack an underlying conviction.  In
  United States v. Lika, the Second Circuit Court of Appeals refused to allow
  a defendant to challenge his conviction through a Rule 35(a) motion.  344 F.3d 150, 153 (2d Cir. 2003).  The defendant in that case argued that the
  indictment was defective and the trial court's jury instructions were
  erroneous.  Id. at 152.  The court responded that "Lika's effort to
  shoehorn these claims, which amount to nothing more than challenges to his
  underlying conviction, into a Rule 35(a) motion does not avail."  Id.; see
  also United States v. Jeffers, 388 F.3d 289, 292 (7th Cir. 2005)
  ("[A]lthough denominated as a challenge to his sentence, [the Rule 35(a)
  motion] was actually an attack upon the underlying . . . conviction.  As
  such, it was beyond the power of the court to address under Rule 35(a).");
  United States v. Rourke, 984 F.2d 1063, 1067 (10th Cir. 1992) (concluding
  that the defendant could not challenge his guilty plea through sentence
  reconsideration because Rule 35(a) only allows for sentence correction, not
  attacks on the validity of the underlying conviction); United States v.
  Lauga, 762 F.2d 1288, 1291 (5th Cir. 1985) (explaining that for a Rule 35
  motion, "the validity of the conviction is presumed").
   
       ¶  14.  In a case analogous to the current case, the Sixth Circuit
  Court of Appeals affirmed the denial of a motion for sentence
  reconsideration under Federal Rule 35(a) where the defendant claimed that
  his sentence violated Apprendi.  United States v. Tosh, 330 F.3d 836 (6th
  Cir. 2003).  In Tosh, the defendant was charged with conspiracy to
  distribute cocaine and marijuana, and the jury found him guilty under a
  general verdict.  The defendant was sentenced to ten years of imprisonment
  based on the cocaine offense, even though the maximum penalty for the
  marijuana offense was only five years of imprisonment.  The defendant
  argued that the trial court was not authorized to sentence him to the
  greater penalty absent a specific jury finding that he was guilty of
  conspiracy to distribute cocaine.  His argument was based in part on
  Apprendi's requirement that any fact increasing the penalty beyond the
  statutory maximum must be found by the jury.  Id. at 839.  The court held
  that the defendant's sentence was not illegal because it was commensurate
  with his conviction, id. at 842, and the concurring opinion emphasized that
  ambiguity surrounding the general verdict was not reviewable under Rule 35. 
  Id. (Batchelder, J., concurring). 

       ¶  15.  Defendant's theory of sentence illegality relies upon the
  illegality of her conviction.  If defendant's sentence is illegal, it is
  because she was convicted of an offense not presented to the jury in the
  instructions.  We agree with the federal precedents that it is beyond the
  limited role of sentence reconsideration to allow this challenge under Rule
  35(a).  We hold that defendant's sentence is not illegal because it is
  consistent with her conviction of aggravated sexual assault and therefore
  lawfully imposed.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Defendant disputes this characterization because, in support of the
  motions to amend the informations, the prosecutor said the amendment
  "doesn't amend the elements [of the charge], it simply conforms the penalty
  to what the statutes are," and added that "[t]he elements . . . remained
  unchanged" and the amendment is "[n]ot a change in the charge."  As the
  State admitted at oral argument, these statements were incorrect. 
  Nonetheless, the prosecutor's statements do not change the fact that, after
  the amendment, defendant was charged with aggravated sexual assault
  pursuant to 13 V.S.A. § 3253(a)(8).

FN2.  Federal Rule 35(a) was amended in 1984, Pub. L. No. 98-473, 98 Stat.
  2015 (1984), and again in 2002, 207 F.R.D. 89, 274 (2002), and now reads:
  "Within 7 days after sentencing, the court may correct a sentence that
  resulted from arithmetical, technical, or other clear error."  F.R.Cr.P.
  35(a).  The former Federal Rule 35(a) still applies to sentences for
  offenses committed before November 1, 1987.  Advisory Committee's Notes,
  F.R.Cr.P. 35.  All of the federal cases cited in this opinion involve
  sentences for offenses committed prior to this date.