State v. Derouchie

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-247


State of Vermont                             Supreme Court

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

Dean A. Derouchie                            October Term, 1991


Edward J. Cashman, J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

Kenneth A. Schatz, Acting Defender General, and William A. Nelson,
  Appellate Attorney, Montpelier, for defendant-appellant


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


     MORSE, J.   Defendant appeals the denial of his motion for sentence
reconsideration on three grounds.  He claims the court made a clearly
erroneous finding of a highly relevant fact, penalized him for validly
exercising his privilege against self-incrimination, and withheld its
discretion in failing to "individualize" the sentence by insisting on the
maximum in every case.  We affirm.
     Defendant was convicted of sexual assault and sentenced in April 1988
to four-to-twenty years.  Defendant appealed, and this Court affirmed the
judgment in October 1989.  State v. Derouchie, 153 Vt. 29, 568 A.2d 416
(1989).  A motion to reconsider the sentence under 13 V.S.A. { 7042 was
filed in January 1990, and denied, after hearing, in April 1990.
     At the sentencing hearing in 1988, the State recommended a twenty-year
maximum because it believed participation in the in-house sex-offender
program was required in defendant's case.  The Corrections Department
officer who prepared the presentence investigation had initially
recommended a four-year minimum and a maximum of twelve years, but after
discussing it with the court, agreed that a twenty-year maximum was more
appropriate.  Defendant's counsel pointed out that if, for any reason,
defendant did not receive appropriate treatment, he would probably "max [a
twenty-year] sentence."  Because defendant maintained his innocence and
would continue to do so, it was likely he would "not be considered for the
treatment program."  Defendant's counsel concluded her argument by
advocating probation with well-directed supervision because defendant did
not pose a danger to society so long as he remained substance-free.
     The court nevertheless sentenced defendant to four-to-twenty years to
serve, saying to him,
          . . .  Got a front end and it's got a maximum.  Your
          attorney wants probation.  We have two programs.  We
          have an inside program and we have an outside program.
          The outside program is probation.  They ask one
          question.  The threshold question on probation when you
          go to these counselors, which is do you accept responsi-
          bility for what happens.

            Now, if the answer to that question is no, that's the
          end of the interview.  And you come back and it's a
          violation of probation and you go in.  So that becomes a
          pointless tool at this point with the posture you're in,
          which is your business.

            . . . .

            Your lawyer tells me you're going on appeal.

            . . . .

            When it returns from the Supreme Court and the
          decision is affirmed -- let's take a worse case
          situation.  You have an opportunity to have this
          sentence reconsidered at this point.  If I were you in
          the situation that you're in I would deal candidly and
          openly with the people you're going to be dealing with .
          . . .

            . . . .

          I would like nothing better to have you out of the
          center and back in to a productive life as quickly as
          possible.  But you have got to take responsibility for
          the situation, however you perceive it. . . .

             You've got to make some hard decisions.  But whether
          this twenty years is going to stick or not, I guess will
          depend on what happens over the next year, eighteen
          months, I guess. . . .

            The maximum is the risk control device because I don't
          know what's going on in your head. . . .  I don't feel I
          can tell that from looking at one incident in a person's
          life or how they appear in front of me.

            There are people in the center who have the latest
          tools that this society has developed who claim they can
          answer questions like that.  And I want the answer to
          that question the next time I see you.

            The question is whether you're going to be able to
          provide me that information.  When am I going to see
          you?  I'm going to see you after your appeal's over.  If
          the decision's going to be affirmed, I suspect your
          lawyer's going to be filing a motion for reconsideration
          of sentence and we'll take it up at that point. . . .

     In his motion for sentence reconsideration, defendant indicated that he
had overcome his addiction to drugs, had been a model prisoner, had accepted
responsibility for the offense and had been offered the opportunity to
participate in an in-house treatment program for sex offenders at the
Chittenden County Correctional Facility.  Defendant claimed, however, that
he would be better suited for treatment on an "out-patient basis," which a
probationary sentence could provide.  Defendant suggested that the nature of
his crime did not warrant a finding that he was the type of sexual deviant
who needed extensive sex therapy.  He argued that the assault was his first,
brought about by "a tumultuous relationship" with the victim, while he was
under the influence of cocaine and alcohol.  The motion concluded that
defendant would probably "max out," given the low percentage of sex
offenders who receive parole in the in-house treatment program and that a
twenty year sentence was excessive for the crime.
     The focus of the request for relief was the admission of guilt
defendant made after his appeal failed, a confession he claimed he could not
realistically make at the time of sentencing.  Having accepted responsi-
bility, defendant could begin a program of therapy.
     At the hearing on sentence reconsideration, the same judge presided.
The court was informed that defendant had accepted responsibility for the
offense.  Defendant's case worker testified, however, that he was programmed
to "max out" his sentence because he had not yet decided to "deal with [his]
need area" of "inappropriate sexual behavior."  Although defendant had been
invited to participate in the in-house sex-offender program, he had refused
to participate "because of a problem he perceived to be having with a guard
at the Chittenden Correctional Center."  The representative from the
Department of Corrections who testified at defendant's sentence reconsider-
ation hearing believed defendant's four-to-twenty year sentence was appro-
priate under all the circumstances of his case.  The program did not produce
a high percentage of paroled graduates, there being only about a 35% "pass
rate."  Defendant argued he should not be subjected to these low odds.
     In its written decision denying the motion, the court stated
"[defendant] has only become remorseful after his appeal failed," and framed
the central issue as follows:  "The key factual issue concerns whether '. .
. there is little reason to believe that Mr. Derouchie is a sex offender in
need of the in-house program' . . . as he states it in his motion."  The
court concluded "he has not shown any credible evidence of accepting
responsibility for the offense or cooperating with this program."
                                    I.
     The State contends that all of defendant's points on appeal should be
rejected because State v. LaPine, 148 Vt. 14, 15, 527 A.2d 1150 (1987),
holds that only "circumstances and factors present at the time of the
original sentencing, rather than defendant's conduct and behavior since
sentencing" may be considered at sentence reconsideration.
     We do not agree that LaPine is applicable here, because the court at
sentencing invited defendant to move for reconsideration and informed him,
in effect, that his situation between sentencing and reconsideration would
be relevant.
                                    II.
     Defendant claims the court premised its decision on an erroneous
finding of fact that he did not accept responsibility for the offense.  He
points to a colloquy with his counsel as follows:
          Defense Counsel:  . . .  It seems grossly unfair
                            for us to be denied any access to this
                            program, when this program is the
                            thing in effect that's keeping him in
                            prison.

          The Court:        I don't understand the point.  They
                            have a program he's been invited into?

          Defense Counsel:  That's correct.  He's been accepted
                            into the program.

          The Court:        What's next?

          Defense Counsel:  Well, that means several things.
                            Number one, that he is no longer in
                            denial about this offense.

          The Court:        Okay.

          Defense Counsel:  Okay.  Basically that's what I wanted
                            the Court to understand, that he --

          The Court:        Well, I'll accept your word on that.


This colloquy followed an objection by the State on confidentiality grounds
over access to certain Department of Corrections records.  A Corrections
official testified also that defendant "has made an important first step in
admitting his offense."
     We do not read the trial court's finding as rejecting the fact that
defendant uttered words acknowledging guilt.  Coupled with his refusal to
participate in the treatment program, it was not clearly erroneous for the
trial court to conclude that defendant's acknowledgement was less than
sincere.  We note that "the trial court has wide discretion to consider such
factors as it believes are relevant," State v. Dean, 148 Vt. 510, 513, 536 A.2d 909, 912 (1987), and we have relaxed the scrutiny ordinarily paid to
the adequacy of findings in sentence reconsideration proceedings.
                                   III.
     Defendant further argues that the court impermissibly penalized him for
asserting his right against self-incrimination when he did not express
remorse before his conviction was affirmed.
     We must read the comment that defendant became "remorseful after his
appeal failed" in conjunction with the court's conclusion that defendant's
acknowledgement of responsibility was less than sincere.  On several
occasions during the original sentencing, the court noted that defendant
did not have to incriminate himself during the appellate process.  We think
it is implicit that the court doubted defendant's sincerity because he
refused treatment, not because he refused to incriminate himself.
                                    IV.
     Finally, defendant accuses the trial court of withholding its
discretion when it imposed the twenty-year maximum because, in so doing, it
stated:
         The twenty is because it's twenty.  That's all they give
         us.  It's the maximum penalty permitted under the
         statute.  And I think that's a recognition that we have
         entered into since I guess the mid-'70s.

     Whatever the court meant by that statement, beyond the recognition that
the statute limits the maximum to twenty years, we do not conclude it failed
to exercise discretion.  The transcript is replete with the court's concern
that the longest maximum sentence possible be set to protect the public
should defendant fail to respond positively to treatment.
     In conclusion, we view defendant's unwillingness to participate in the
sex-offender program as ample reason to allow the original sentence to
remain intact.  Sound correctional policies are not served by placing a
sexual offender on probation on the heels of, and as a perceived reward
for, his noncooperation with an in-house treatment program.
     Affirmed.


                                        FOR THE COURT:




                                        Associate Justice