State v. Richardson

ENTRY_ORDER.92-558; 161 Vt. 613; 640 A.2d 24

[Filed 12-Jan-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-558

                             DECEMBER TERM, 1993


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont
                                   }          Unit No. 2, Chittenden Circuit
                                   }
 Ray Richardson                    }
                                   }          DOCKET NO. 2711-7-88CnCr


              In the above entitled cause the Clerk will enter:

      Defendant asks this court to overrule State v. LaPine, 148 Vt. 14, 527 A.2d 1150 (1987), in which we held that only circumstances and factors
 present at the time the sentence was originally imposed, not a defendant's
 conduct and behavior after sentencing, are relevant in a sentence
 reconsideration proceeding pursuant to 13 V.S.A. { 7042.  We again decline
 to overrule LaPine. See State v. Platt, 158 Vt. 423, 426, 610 A.2d 139, 142
 (1992); State v. Roy, 154 Vt. 645, 645, 573 A.2d 698, 698 (1990) (mem.).

      Defendant argues that State v. Derouchie, 157 Vt. 573, 600 A.2d 1323
 (1991), undermines LaPine.  In Derouchie, the trial court took into account
 the defendant's conduct after imposition of the original sentence in
 considering the motion for reconsideration.  At the sentencing hearing, the
 judge expressed willingness to re-examine the original sentence after the
 disposition of the appeal, contingent on the defendant sincerely
 acknowledging his guilt.  We held that LaPine did not apply in that
 situation because the trial judge at sentencing had invited the defendant to
 move for reconsideration and had informed the defendant that his situation
 between sentencing and reconsideration would be relevant.  Id. at 577, 600 A.2d  at 1325.  Defendant argues that the result should be the same whether
 the judge invites or accepts defendant's offer of post-sentencing
 information at the reconsideration stage.  We disagree.

      In Derouchie the sentencing judge expressly recognized that the
 defendant's acknowledgement of guilt could affect the reconsideration
 result.  Here, there was no invitation by the sentencing judge for evidence
 of post-sentencing conduct at the reconsideration hearing, or suggestion
 that such conduct could affect the sentence.  LaPine is controlling and the
 court did not err in declining to consider the post-sentencing conduct.

      Defendant further argues that LaPine does not apply to murder cases
 because of 13 V.S.A. { 2303(c), which requires the sentencing court to
 consider certain enumerated aggravating and mitigating factors prior to
 sentencing.  See id. { 2303(c)-(e).  Specifically, defendant points to

 

 { 2303(e)(7), which includes as a mitigating factor "any other factor that
 defendant offers in support of a lesser minimum sentence."  However, the
 fourteen other aggravating and mitigating factors all speak to matters
 existent and known at the time of sentencing.  See id. { 2303(d)-(e).  We
 see no reason to construe the { 2303(e)(7) factor differently.

      Defendant also contends that the original sentence was imposed
 illegally because the court failed to make written findings as required by
 13 V.S.A. { 2303(c).  We do not reach this issue, however, because it was
 not raised in defendant's appeal of his conviction, see State v. Richardson,
 158 Vt. 635, 603 A.2d 378 (1992), or in the sentencing reconsideration
 hearing.  See State v. Prue, 138 Vt. 331, 331-32, 415 A.2d 234, 234 (1980)
 (per curiam) (no consideration of matters first raised on appeal).

      Affirmed.


                                    BY THE COURT:




                                    Frederic W. Allen, Chief Justice


 [ ]  Publish                       Ernest W. Gibson III, Associate Justice

 [ ]  Do Not Publish
                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice