State v. Kimmick

State v. Kimmick (2005-188)

2007 VT 45

[Filed 24-May-2007]

                                 ENTRY ORDER

                                 2007 VT 45

                      SUPREME COURT DOCKET NO. 2005-188

                             JANUARY TERM, 2007


  State of Vermont                    }         APPEALED FROM:
                                      }
                                      }
       v.                             }         District Court of Vermont,
                                      }         Unit No. 1, Windsor Circuit
  William Kimmick                     }
                                      }         DOCKET NO. 106-1-04 Wrcr

                                                Trial Judge: Harold E. Eaton, Jr.

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

       ¶  1.  Defendant William Kimmick appeals his sentence imposed
  following a contested sentencing hearing in the district court.  Defendant
  alleges the court erred in: (1) permitting victim-impact testimony by
  unsworn witnesses; (2) permitting a non-victim to testify as a victim; and,
  (3) imposing a sentence in which the effective minimum and maximum terms
  are, after taking into account the effect of good-time credit, the same. 
  We affirm. 

       ¶  2.  On November 23, 2004, defendant pleaded guilty to voluntary
  manslaughter of his ex-wife.  The plea agreement contained no agreed-upon
  sentence; rather, the parties stipulated that each could argue for a
  particular sentence at a contested hearing.  Under the terms of the
  agreement, defendant waived his right to appeal a "lawfully-imposed
  sentence." 

       ¶  3.  At the final status conference, the district court noted that
  there was a legal question as to whether family members were required to
  make their statements under oath.  Accordingly, the court asked defense
  counsel directly whether there were any objections to the family members
  making unsworn statements; defense counsel did not object.  At the
  sentencing hearing, the district court indicated that victim-impact
  testimony should be confined to matters of opinion on the sentence and
  should not include assertions of fact.  The court instructed that defense
  counsel could request the witnesses be sworn in at any time if they began
  to present factual information.  At no time during the unsworn
  victim-impact testimony did defense counsel raise an objection or request
  that a witness be sworn in. 
          
       ¶  4.  During the sentencing hearing, a witness from the Department
  of Corrections (DOC) testified as to the good-time credit available to
  reduce defendant's sentence, noting that under the relevant statutory
  scheme, his sentence could not be reduced by good time below the minimum
  term set by the court.  The DOC witness also testified to the effect of
  good-time credit on a split sentence - a sentence with a portion suspended
  over a probationary period - and a straight sentence - a sentence without
  suspended time.  Three witnesses gave unsworn victim-impact testimony: the
  victim's mother; the victim's sister; and the victim's sister's fiancé, who
  was also a longtime friend of the family.  A state trooper was sworn in and
  testified as to the investigation.  Four witnesses testified on behalf of
  defendant; all of these witnesses were sworn in. 
    
       ¶  5.  In argument at the hearing, both the State and defendant
  supported the split-sentence option.  The district court imposed a straight
  sentence with a minimum of fourteen and a maximum of fifteen years.  

       ¶  6.  Defendant claims that the sentence was "imposed in an illegal
  manner" because the procedure was deficient, and that it is "illegal"
  because the minimum and maximum sentences are effectively the same. 
  V.R.Cr.P. 35(a).  He further contends that the appeal waiver does not
  prevent these claims.  Because we find defendant's first arguments
  unmeritorious, we do not reach whether the appeal waiver precludes their
  review.   

       ¶  7.  Defendant first argues that, in light of his constitutional
  right "not [to] be sentenced on the basis of materially untrue
  information," it was reversible error to permit unsworn witnesses to
  testify at his sentencing hearing.  State v. Ramsay, 146 Vt. 70, 78,  499 A.2d 15, 20 (1985); State v. Chambers, 144 Vt. 377, 383, 477 A.2d 974, 979
  (1984) (requiring sentencing court to rely only on presentence
  investigation report information that is accurate).  Because defendant did
  not object to the testimony at the sentencing hearing, we review the
  district court's decision for plain error only.  State v. Yoh, 2006 VT 49A,  
  ¶ 36, ___ Vt. ___, 910 A.2d 853.  A court commits plain error " 'where a
  failure to recognize error would result in a miscarriage of justice, or
  where there is a glaring error so grave and serious that it strikes at the
  very heart of the defendant's constitutional rights.' "  State v. Oscarson,
  2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337 (quoting State v. Pelican, 160
  Vt. 536, 538, 632 A.2d 24, 26 (1993)).  

       ¶  8.  Defendant bases his claim of plain error on the severity of
  his sentence and on the pretrial information presented by the witnesses. 
  We do not find plain error on these bases.  Defendant cannot demonstrate
  that the victim-impact statements lengthened his sentence, and the district
  court did not relate its conclusions regarding the sentence to the
  statements.  Moreover, defendant points to no testimony that was
  "materially untrue."  The district court gave a thorough explanation of the
  many factors it relied on, and defendant has not shown that he was
  prejudiced in any way by the factual assertions made during the
  victim-impact statements.  
        
       ¶  9.  Defendant's second related argument is that it was plain
  error to permit a family friend and fiancé of the victim's sister to
  testify.  A family friend or fiancé is not a "family member" under
  victim's-testimony statutes, 13 V.S.A. § 5301(2), and thus is not a
  "victim" in a homicide case.  Id. § 5301(4).  The friend, therefore, did
  not have a right to testify, and the court was not required to "consider
  any views [he] offered at the hearing."  Id. § 5321(c).  The prosecution
  may, however, "present any information relevant to sentencing," V.R.Cr.P.
  32(a)(1), and we have held that this may include victim-impact information. 
  See State v. Bushway, 146 Vt. 405, 407, 505 A.2d 660, 661 (1985); In re
  Meunier, 145 Vt. 414, 418, 491 A.2d 1019, 1022 (1985).  These cases
  preceded the current victim's-testimony statutes and, although they
  involved the testimony of the victim of the crime, they are not necessarily
  limited to that witness only.  Here, therefore, the issue is not so much
  the witness' familial status as it is the relevancy of his testimony.

       ¶  10.  Most significantly, however, defendant failed to object to
  allowing the friend to testify, and failed to object to any of the content
  of his testimony.  Defendant does not argue here that any of the content of
  the testimony was irrelevant and inadmissible.  Thus, even if there were
  error in the testimony of the witness, defendant has not demonstrated how
  that error was prejudicial.

       ¶  11.  Defendant's third argument is that the district court's
  sentence is illegal because reducing the maximum sentence through good-time
  credits under 28 V.S.A. § 811 (FN1) makes the effective maximum and
  minimum sentences the same, in violation of 13 V.S.A. § 7031.  Under 13
  V.S.A. § 7031(a), the district court must establish a maximum sentence in
  accordance with the maximum term fixed by law for the offense and may
  establish a minimum term that shall not be less than the minimum term fixed
  by law for the offense.  Section 7031 also directs that "the court imposing
  the sentence shall not fix the term of imprisonment."  We have construed
  the statute as prohibiting "a sentence with the same maximum and minimum
  terms of confinement."  State v. Bruley, 129 Vt. 124, 130, 274 A.2d 467,
  471 (1970).  Defendant argues that we should extend the Bruley holding to
  cases where the minimum and maximum imprisonment sentences are not
  identical when imposed, but become so as a result of good-time credit.   

       ¶  12.  In construing statutes, this Court looks first to the
  language of the statute to determine whether the meaning is plain.  In re
  Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999).  If the plain
  language of the statute is clear and "resolves the conflict without doing
  violence to the legislative scheme we are bound to follow it."  State v.
  Baron, 2004 VT 20, ¶ 6, 176 Vt. 314, 848 A.2d 275 (citations and quotation
  omitted).  If the words of the statute do not provide sufficient guidance
  to ascertain legislative intent, however, we look to the statute's "subject
  matter, its effects and consequences, and the reason and spirit of the law"
  for meaning.  State v. Thompson, 174 Vt. 172, 175, 807 A.2d 454, 458
  (2002).    

       ¶  13.  The language of 13 V.S.A. § 7031 clearly mandates that a
  court may not fix the term of a sentence by imposing minimum and maximum
  sentences that are the same.  See State v. Lambert, 2003 VT 28, ¶¶ 17-18,
  175 Vt. 275, 830 A.2d 9 (applying 13 V.S.A. § 7031 and reversing sentence
  where court "specifically attempted to establish a minimum equal to the
  maximum term" by imposing a sentence of not less than twenty-four months or
  more than two years); Bruley, 129 Vt. at 130, 274 A.2d  at 471 (finding
  trial court without authority to impose a sentence of "not more or less
  than nine months").  A sentence is not fixed as long as the maximum and
  minimum terms are not identical.  See Woodmansee v. Stoneman, 133 Vt. 449,
  461, 344 A.2d 26, 33 (1975) (affirming sentence of "not more than seven nor
  less than six years" over defendant's objection that minimum and maximum
  terms violated statute's prohibition on fixed terms); Bushway, 146 Vt. at
  408, 505 A.2d  at 662 (affirming sentence with maximum of twenty years and
  minimum of eighteen years).
   
       ¶  14.  The district court's sentence meets the statutory
  requirements.  The sentence is not fixed because, even though the
  difference between the maximum and minimum terms is slight, the terms are
  not identical.  See Woodmansee, 133 Vt. at 461, 344 A.2d  at 33 (affirming
  sentence with difference of one year between maximum and minimum terms). 
  For several reasons, we conclude that the effect of good time does not
  change this rule. 

       ¶  15.  First, § 7031(a) does not specify that the sentencing judge
  must take good-time credit into account when imposing the maximum and
  minimum terms of a sentence.  The statute simply requires that at the time
  of sentencing, the maximum and minimum terms imposed be different.  The
  district court followed the statute's directive in imposing a sentence of
  fourteen to fifteen years.  Nothing in 13 V.S.A. § 7031(a) suggests that a
  judge must take 28 V.S.A. § 811, the statute governing good-time credit
  when defendant was sentenced, into account when imposing the sentence, and,
  in the absence of any clear legislative intent to impose such a
  requirement, we will not read one in.  State v. O'Neill, 165 Vt 270, 275,
  682 A.2d 943, 946 (1996) ("It is inappropriate to read into a statute
  something which is not there unless it is necessary in order to make the
  statute effective.").

       ¶  16.  Second, even if the language of the statute were ambiguous,
  the DOC's sentence computation is performed after the sentencing and,
  consequently, is not part of the limitations on sentencing under 13 V.S.A.  
  § 7031(a).  This conclusion is supported by 13 V.S.A. § 7044, which requires
  the Commissioner of Corrections to provide the court with a computation of
  the shortest and longest possible sentences - taking into account good-time
  credit under 28 V.S.A. § 811 - within thirty days after the sentence is
  imposed.  To hold that courts must compute good-time credit prior to
  sentencing would require a sentencing expert to testify at each sentencing
  hearing.  We do not find such a result to have been clearly intended by the
  Legislature.

       ¶  17.  Third, good-time sentence reductions must be earned through
  faithful observation of "all the rules and regulations of the institution
  to which the inmate is committed."  28 V.S.A. § 811(a).  At the time the
  court imposes a sentence, a defendant has not earned any good time and may,
  in fact, never actually earn any.  Defendant claims that with the passage
  of Act 63, the award of good-time credit is no longer dependent on an
  inmate's behavior; rather, the time is awarded prospectively in a lump sum. 
  See Reporters Notes, 28 V.S.A. § 811 (Cum. Supp. 2006) (setting forth Act
  63 which requires, for prisoners sentenced before June 30, 2005, the
  prospective award of all good-time credit "to which th[e] inmate would
  potentially be entitled in the future" in a lump sum on July 1, 2005).  In
  this case, defendant argues, Act 63 effectively fixes the term of his
  sentence contrary to § 7031(a).  Initially we note, as discussed above,
  that nothing in § 7031(a) requires a judge to take into account the effect
  of good-time credit at sentencing.  Defendant's Act 63 argument also fails,
  however, because the Legislature had not passed Act 63 at the time
  defendant was sentenced on April 28, 2005, and thus, it does not apply to
  him.
   
       ¶  18.  Fourth, we conclude that the former 28 V.S.A. § 811, not 13
  V.S.A. § 7031, is the controlling statute here.  In 2000, the Legislature
  adopted a truth-in-sentencing law that changed the rules for deducting
  good-time credit from a prisoner's sentence as of July 1, 2000.  1999, No.
  127 (Adj. Sess.); Ladd v. Gorczyk, 2004 VT 87, ¶ 4, 177 Vt. 551, 861 A.2d 1094 (mem.).  Under the pre-2000 rules, good-time credit was deducted from
  the maximum and the minimum terms.  See 28 V.S.A. § 811(a) (2000) ("Each
  inmate . . . shall earn a reduction . . . in the minimum and the maximum
  terms . . . .").  After the new law passed, good-time credit could be
  deducted only from the maximum term.  1999, No. 127, § 1 (Adj. Sess.).  In
  addition, the Legislature added a subsection-subsection (g)-dealing
  explicitly with the situation before us: "In no case shall the reductions
  to an inmate's sentence as provided for in this section result in the
  inmate's maximum sentence being less than the inmate's minimum sentence." 
  Id.  Rather than requiring that maximum sentences remain higher than
  minimums, the statute requires only that the maximum not become less than
  the minimum because of good time. 

       ¶  19.  This case demonstrates why this provision is central to the
  statutory scheme and controls.  The major change brought about by the 2000
  amendment was to eliminate any effect of good-time reductions on the
  minimum sentence.  In this case, however, where defendant's maximum
  sentence was set at the statutory maximum under 13 V.S.A. § 2304, accepting
  defendant's argument would require that the minimum sentence be reduced to
  keep the effective maximum and minimum terms different.  The clear
  legislative intent was that the minimum term not be reduced because of good
  time, exactly the effect of accepting defendant's argument.   

       ¶  20.  For these reasons, defendant's sentence of fourteen to
  fifteen years was not inconsistent with the statutes in effect at the time
  of his sentencing and is therefore lawful.

       Affirmed.

                                       BY THE COURT:
    
                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Amy M. Davenport, Superior Judge,
                                       Specially Assigned


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                                  Footnotes


FN1.  Except as otherwise noted, all statutes referenced herein are those in
  force on April 28, 2005.