State v. Hance

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-242

State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 1, Rutland Circuit

Henry J. Hance                               February Term, 1991

Theodore S. Mandeville, Jr., J.

Marc D. Brierre, Rutland County Deputy State's Attorney, Rutland, for

Kenneth Schatz, Acting Defender General, and Anna E. Saxman, Appellate
  Attorney, Montpelier, for defendant-appellant

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

     DOOLEY, J.   Defendant, Henry Hance, appeals from the trial court's
denial of his motion under V.R.Cr.P. 35 and 13 V.S.A. { 7042 for sentence
reconsideration.  The sole issue is whether a criminal defendant may
expressly waive the right to sentence reconsideration in a plea agreement in
which the State and the defendant jointly agree to a recommended sentence.
We hold that such a waiver is valid and affirm.
     On January 3, 1990, defendant pled no contest to three counts:  selling
cocaine, leaving the scene of an accident, and a third offense of driving
with a suspended license.  His plea was made pursuant to a written
agreement, dated December 1, 1989, and signed by the state's attorney,
defendant and his counsel.  It provided that the state's attorney and
defendant's attorney would jointly recommend a sentence of two-to-six years.
The State agreed to dismiss a fourth offense of driving under the influence
and a third offense of driving with a suspended license.  The agreement
also included the following provision:
         5)  DEFENDANT hereby understands and waives his right
         under 13 V.S.A. { 7042 to request the Court for
         reconsideration of the sentence(s) imposed under this
         agreement, except to the extent that the penalty imposed
         is greater than that recommended by the State herein.
     At the sentencing hearing, defendant's attorney explained that
defendant had agreed to the sentence, argued that the agreement was fair,
and urged the court to impose the agreed-upon sentence.  After determining
that defendant's waiver was voluntary, knowing, and intelligent, the court
sentenced defendant to two-to-six years' imprisonment:  two-to-five years
for selling cocaine, with six months for driving with a suspended license to
be served concurrently; and zero-to-one year for leaving the scene of an
accident, to be served consecutively.
     On March 26, 1990, defendant filed a motion for sentence
reconsideration, asking that his minimum sentence be reduced by one year.
At the motion hearing, the court concluded that defendant had waived his
right to move for sentence reconsideration under the terms of the plea
agreement and refused to consider the merits of his motion.  This appeal
     Defendant argues that 13 V.S.A. { 7042 and V.R.Cr.P. 35 create an
absolute right to move for sentence reconsideration and provide no
authorization for waiver of that right and, as a matter of statutory
construction and sound policy, we should not allow such a waiver.  As
defendant concedes, neither the rule nor the statute speaks to this issue.
     At the outset, we note that our decisions authorize a defendant to
waive virtually any right, constitutional or statutory, as long as the
waiver is knowing, intelligent, and voluntary.  Thus, a defendant may waive
the right against self-incrimination, see State v. Caron, ___ Vt. ___, ___,
586 A.2d 1127, 1135 (1990), the right to counsel, see State v. Merrill, ___
Vt. ___, 584 A.2d 1129 (1990), the right to trial by jury, see State v.
Conn, 152 Vt. 99, 102, 565 A.2d 246, 247 (1989), and the right to any trial,
see V.R.Cr.P. 11(c)(4).  It would be anomalous for us to allow waiver of
these important constitutional rights and then to deny waiver of a
statutory right to sentence reconsideration.
     Defendant responds to our waiver decisions by urging us to apply the
rationale of State v. Buck, 139 Vt. 310, 428 A.2d 1090 (1981), a criminal
case in which we indicated that we would not enforce a plea agreement
provision restricting the right to appeal.  In Buck, defendant was found
guilty by a jury but entered into a sentencing agreement for a deferred
sentence pursuant to 13 V.S.A. { 7041(a).  The agreement restricted the
issues defendant could raise on appeal.  We stated that, because the right
to appeal from a criminal conviction was conferred absolutely by statute,
"its restriction or prohibition as a condition of sentence deferment or
probation cannot be reconciled with that statute."   Id. at 315, 428 A.2d  at
1093.  The holding of Buck on this point is dicta.  Although we have not
revisited the issue since Buck, we note that the overwhelming weight of
authority in other states is that, under certain circumstances, the right of
appeal can be waived in a plea agreement.  See People v. Seaberg, 74 N.Y.2d 1, 8 n.*, 541 N.E.2d 1022, 1024 n.*, 543 N.Y.S.2d 968, 971 n.* (1989)
(collecting cases).  In any event, we find that Buck is distinguishable for
three reasons.
     First, in Buck there was no direct correlation between the sentence
deferment and the appeal of issues underlying defendant's conviction.
Thus, the State had used its power to prevent sentence deferment, see 13
V.S.A. { 7041(a), to induce an unrelated waiver of defendant's rights.
Here, in contrast, the State used the waiver to ensure it receives the
benefit of the bargain it made with defendant.  If defendant is allowed to
seek and obtain a reduction of his minimum sentence, the State will have
dismissed charges, foregone defendant's testimony in another proceeding, and
waived its right to argue for a higher sentence, in return for a sentence
that defendant will never serve.  See People v. Fearing, 110 Ill. App. 3d
643, 645, 442 N.E.2d 939, 940-41 (1982).
     Plea bargains have become an essential part of the administration of
justice.  See Standards for Criminal Justice { 14-3.1 commentary (2d ed.
1986).  Indeed, we have gone further than most states and the federal courts
in allowing the trial judge to participate in the plea negotiation process.
See State v. Davis, ___ Vt. ___, ___, 584 A.2d 1146, 1148 (1990).  It is
important to the integrity of the system that plea bargains be honored by
both the defendant and the State.  We note that the one state court that has
considered the issue has ruled that a sentence reduction under rules
similar to ours gives the State the right to rescind the plea agreement on
which the sentence was based.  People ex rel. VanMeveren v. District Court,
195 Colo. 34, 37-38, 575 P.2d 4, 7 (1978) (en banc); see also Jolly v.
State, 392 So. 2d 54, 56 (Fla. Dist. Ct. App. 1981) (invalid  sentence must
be cured by vacating judgment rather than by resentencing so that State is
not denied benefit of plea bargain).  We concluded recently in State v.
Whitchurch, ___ Vt. ___, ___, 577 A.2d 690, 693 (1990), that a later
modification of a plea agreement, providing terms of probation, may give the
State the opportunity to reopen the entire agreement and seek a different
sentence.  We need not reach whether modification would be a breach of the
plea agreement; (FN1) it is sufficient to say that the bilateral nature of the
agreement supports allowing waiver of defendant's right to seek sentence
reduction as part of that agreement.
     The second reason that Buck does not control this case lies in the
difference between the nature of appeal and the nature of sentence
reconsideration.  The purpose of an appeal is to correct error in the
underlying conviction or in the sentence.  An opportunity to appeal ensures
that a conviction is based on a fair trial and a proper determination of
guilt.  Even where there has been a guilty plea, the appeal assures
adherence to "standards which have been developed with painstaking care to
afford defendants their basic rights."  People v. Butler, 43 Mich. App. 270,
280, 204 N.W.2d 325, 328 (1972); see also State v. Ethington, 121 Ariz. 572,
573, 592 P.2d 768, 769 (1979) ("public policy forbids a prosecutor from
insulating himself from review by bargaining away a defendant's appeal
     The purpose of sentence reconsideration is discussed in State v. Dean,
148 Vt. 510, 513, 536 A.2d 909, 912 (1987) as follows:
         The purpose of sentence reconsideration is to allow a
         second look at the sentencing decision "absent the heat
         of trial pressures and in calm reflection to determine
         that it is correct, fair, and serves the ends of
         justice."  State v. Therrien, 140 Vt. 625, 627, 442 A.2d 1299, 1301 (1982).  The statute allows modification of a
         sentence "which, upon reflection and in the presence of
         unchanged circumstances, might be shown to be unwise or
         unjust."  State v. Lertola, 140 Vt. 623, 624, 442 A.2d 1296, 1297 (1982).  In making these determinations, the
         trial court has wide discretion to consider such factors
         as it believes are relevant.

The right to sentence reconsideration is of recent origin, having been
created by statute in 1978.  See id.  It is a highly discretionary remedy
for a lawful, but inappropriate, sentence.  While we do not denigrate the
importance of sentence reconsideration to criminal defendants, we cannot say
that it occupies as central a place in the administration of justice as the
right to appeal.  Thus, it is appropriate to allow a waiver of sentence
reconsideration while prohibiting a waiver of the right to appeal.
     The distinction between sentence reconsideration and appeal is
recognized in analogous circumstances in other jurisdictions.  In People v.
Francabandera, 33 N.Y.2d 429, 434 n.2, 310 N.E.2d 292, 294 n.2, 354 N.Y.S.2d 609, 612 n.2 (1974), the New York Court of Appeals ruled that a defendant
could not waive the right to challenge an illegal sentence.  More recently,
in Seaberg, 74 N.Y.2d  at 9, 541 N.E.2d  at 1025-26, 543 N.Y.S.2d  at 972, the
Court held that a defendant could waive in a plea bargain the right to
appeal a sentence as excessive.  The Court found that the need to enforce
negotiated pleas outweighed any policy concern for protecting the review
rights of defendants with respect to the length of sentences.
     The distinction was applied by the Minnesota Court of Appeals in
Ballweber v. State, 457 N.W.2d 215 (Minn. Ct. App. 1990), where the
defendant appealed the length of his sentence, arguing it was inconsistent
with sentencing guidelines.  The court found that the case was like
Francabandera and unlike Seaberg; because of the determinate sentencing
system in use in Minnesota, defendant's challenge went to the legality, and
not merely to the fairness, of his sentence.  Id. at 218.  Thus, based on
the nature of the appeal, particularly the absence of trial court discretion
in the sentencing decision, the court held that a waiver of the right to
appeal was invalid.
     The third distinguishing factor is the limited usefulness of sentence
reconsideration when the sentence is based on a plea agreement.  The
sentence here was not born out of "the heat of trial pressures" and
presumably was considered fair by defendant when he agreed to it.  The value
of sentence reconsideration is also affected by our decision in State v.
LaPine, 148 Vt. 14, 15, 527 A.2d 1150, 1150 (1987), that sentence
reconsideration may be based only on "the circumstances and factors present
at the time of the original sentencing, rather than defendant's conduct and
behavior since sentencing."  Indeed, the transcript of the sentence
reconsideration hearing in this case indicates that defendant's claim for
sentence reduction is based primarily on his rehabilitation since
sentencing, as well as the deterioration of his family's financial
circumstances, and not on a reassessment of his situation at sentencing.
     We do not suggest that a sentence adopted pursuant to a plea agreement
should never be subject to modification.  We do believe, however, that such
a sentence is the least likely to be modified by calm reflection.  Thus, the
value of what is being waived here is very limited and rarely likely to
result in a sentence reduction.
     We hold that a defendant may expressly waive the right to seek sentence
reconsideration as part of a plea agreement in which defendant and the State
have negotiated a recommended sentence.  Because defendant here has not
attacked his plea or the plea agreement as other than knowing and
voluntary, see In re Hall, 143 Vt. 590, 595, 469 A.2d 756, 758 (1983), his
waiver of the right to seek sentence reconsideration is valid.
                                        FOR THE COURT:

                                        Associate Justice

FN1.    Defendant relies on United States v. Semler, 883 F.2d 832, 835 (9th
Cir. 1989), for the proposition that even though a sentence resulted from a
binding plea agreement, it is subject to modification.  We do not differ
with this conclusion, but find it to be of little help to this case because
there was no waiver agreement in Semler.  Nor does Semler address whether
the government could reopen the plea agreement in light of the modification.