State v. Young

State v. Young (2005-398)

2007 VT 30

[Filed 19-Apr-2007]

                                 ENTRY ORDER

                                 2007 VT 30

                      SUPREME COURT DOCKET NO. 2005-398

                             JANUARY TERM, 2007


  State of Vermont                     }         APPEALED FROM:
                                       }
                                       }
       v.                              }         District Court of Vermont,
                                       }         Unit No. 2, Rutland Circuit
  Tracy Young                          }
                                       }         DOCKET NOS. 1306/07/08-10-01 &
                                                             1493-10-03 Rdcr

                                                 Trial Judges: M. Patricia 
                                                               Zimmerman &
                                                               Nancy Corsones  

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

       ¶  1.  Defendant appeals a sentence imposed by the district court. 
  He contends the court erred in failing to award certain credit for time
  served.  Because defendant failed to pursue an  administrative remedy with
  the Commissioner of Corrections and review by the superior court under
  V.R.C.P. 75, we conclude that the appeal must be dismissed.

       ¶  2.  The material facts may be briefly summarized.  In May 2003,
  defendant was sentenced on four felony charges to a term of two to eight
  years, all suspended except for time served, and placed on probation.  On
  February 4, 2004, defendant was arrested and held without bail for several
  violations of probation (VOPs).  On July 9, 2004, defendant was sentenced
  on several new motor vehicle offenses and the violation of probation
  charges.  The court imposed a new sentence of four to sixty months on the
  motor vehicle offenses with credit for time served since February 4, 2004,
  and ordered that defendant be continued on probation on the underlying
  felony offenses.   

       ¶  3.  New violation of probation petitions were filed in December
  2004 and August 2005.  At the hearing on the VOP charges in late August
  2005, defendant requested that, with respect to any sentence imposed, he be
  awarded credit for time served between February 4 and July 9, 2004.  In a
  written decision dated August 30, 2005, the court ruled that the
  computation of any credit for time served was for the Department of
  Corrections, and scheduled a sentencing hearing for September 1, 2005.  At
  the hearing, the court revoked defendant's probation and imposed the
  underlying terms with "credit for time served according to law."  This
  appeal followed.
     
       ¶  4.  Defendant contends that the court erred in failing to award
  him the requested credit for time served.  As the trial court observed,
  however, the DOC is charged with the responsibility to calculate "the
  effect of any credit for time served as ordered by the court pursuant to 13
  V.S.A. § 7031."  13 V.S.A. § 7044.  Section 7031(b) states that the "court
  shall give the person credit towards service of his sentence for any days
  spent in custody in connection with the offense." Sections 7031 and 7044,
  read together, do not require the trial court to calculate time served, but
  rather allow the court to order the DOC to do so.  In the majority of
  cases, the DOC is in a far better position than the trial court to make the
  calculation, as it has the most accurate and timely information concerning
  the people in its custody, while the trial court may have no information
  other than that supplied to it by the parties.  In such cases, the district
  court will typically order the DOC to calculate time served, as the statute
  expressly contemplates and as the district court did in this case.  We find
  no error in that course of action under the facts before us. (FN1)

       ¶  5.  Should a defendant dispute the DOC's calculation, he or she
  may file a grievance with the Commissioner, and thereafter seek review in
  the superior court under V.R.C.P. 75.  Cf. Ladd v. Gorczyk, 2004 VT 87, ¶
  3, 177 Vt. 551, 861 A.2d 1094 (defendant dissatisfied with calculation of
  good-time credit filed grievance with commissioner and thereafter appealed
  denial of grievance in superior court under V.R.C.P. 75).   Accordingly, we
  agree with the State's assertion that defendant has pursued the incorrect
  avenue of relief, and that this appeal must therefore be dismissed.  

       Appeal dismissed.
    

                                       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.  Of course, there are cases in which the trial court is in a better
  position than the DOC to calculate time served, as when the calculation
  depends on legal determinations the DOC is less equipped to make.  Cf. In
  re McPhee, 141 Vt. 4, 6-9, 442 A.2d 1285, 1286-88 (1982) (affirming trial
  court's determination that credit for time served would be given, under 13
  V.S.A. § 7031(b), for time spent under supervision of director of treatment
  center as condition of pre-trial release order); In re Zera, 137 Vt. 421,
  425, 406 A.2d 396, 398 (1979) (reversing superior court's determination-in
  PCR proceeding after district court denied credit for time served-that
  certain period of incarceration was not "in connection with the offense"
  for purposes of 13 V.S.A. § 7031(b); granting credit for time served),
  overruled on other grounds by State v. Blondin, 164 Vt. 55, 64, 665 A.2d 587, 593 (1995).  We do not here limit the trial court's discretion, in
  appropriate cases, to make such determinations.