State v. Pierce

Annotate this Case
STATE_V_PIERCE.93-328; 163 Vt 192; 657 A.2d 192

[Filed 20-Jan-1995]

      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, 109 State Street, Montpelier, Vermont 05609-0801 of any
errors in order that corrections may be made before this opinion goes to

                                 No. 93-328

State of Vermont                                  Supreme Court

                                                  On Appeal from
     v.                                            District Court of Vermont,
                                                  Unit No. 3, Caledonia Circuit

Arthur Pierce                                     November Term, 1994

Amy M. Davenport, J.

Gary S. Kessler, Supervising Appellate Prosecutor, and Robert L. Sand, Staff
 Attorney, State's Attorneys Department, Montpelier, for plaintiff-appellee 

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for defendant-appellant

Robert Appel, Defender General, and William A. Nelson, Appellate Defender,
 Montpelier, for amicus curiae Vermont Defender General 

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

     MORSE, J.   The principal issue before us is whether 13 V.S.A.  7041
violates the separation-of-powers doctrine by conditioning the trial court's
deferral of a criminal sentence upon the concurrence of the state's attorney.
 Defendant was convicted by jury of delivering more than one-half ounce of
marijuana, in violation of 18 V.S.A.  4230(b)(2).   The trial judge stated
that the facts and circumstances of this case warranted a deferred sentence,
but ruled that she could not carry out this alternative because the state's
attorney refused to agree to it.  The court also denied defendant's request
that it postpone sentencing and then dismiss the case under V.R.Cr.P. 48(b). 
We hold that  7041 does not violate the Vermont Constitution's
separation-of- powers clause, and affirm. 


     In late 1991, defendant's roommate purchased four ounces of marijuana in


for resale in Vermont.  Defendant agreed to sell the marijuana so
that the roommate could repair his car with the profit from the sale.  On
December 4, 1991, defendant sold the four ounces to an undercover police
officer.  Eventually, defendant was charged with delivering marijuana, and
his roommate was charged with conspiring to sell marijuana.  The prosecutor
agreed to recommend a deferred sentence for the roommate but not for
defendant.  The roommate pled guilty to misdemeanor possession of marijuana,
and the court granted a three-year deferred sentence on the felony charge. 
Defendant's case went to trial, and he was convicted by a jury of delivering
more than one-half ounce of marijuana, a felony. 

     At the sentencing hearing, much of the testimony concerned the State's
disparate treatment of defendant and his roommate.  The probation officer who
wrote the presentence investigation report defended his statement that it was
grossly unfair for the prosecutor to offer a deferred sentence to the more
culpable roommate, but not to defendant.  Defendant pointed out that (1) like
his roommate, he had no criminal record; (2) unlike his roommate, he made no
profit on the transaction; and (3) unlike his roommate, the police could not
link him to any other drug sales, despite efforts by undercover police to
consummate another sale.  The prosecutor stated that he was unwilling to
offer defendant a deferred sentence because (1) the facts and circumstances
surrounding the sale and defendant's connection with former roommates who had
been charged with drug offenses suggested that this was not an isolated
transaction, and (2) defendant had declined to cooperate with a police
investigation of his former roommate. According to the prosecutor, he offered
a deferred sentence to the roommate because the admissibility of the
principal evidence against the roommate had been put in doubt by a motion to
suppress in that case. 

     In the court's view, the evidence indicated that this was a one-time
transaction for defendant, and that the roommate was at least as culpable as
defendant.  The court opined that the fairest alternative would be to defer
defendant's sentence, as it had done in the roommate's case.  The court
ruled, however, that  7041 required the consent of the prosecutor before it


could grant a deferred sentence, and that the statute does not violate the
separation-of-powers doctrine.  The court also rejected defendant's
suggestion that it put off sentencing for two years and then consider
dismissing the case under V.R.Cr.P 48(b), stating that to do so would be
inconsistent with the fair administration of justice. 


     Section 7041(a) of Title 13 provides that, upon an adjudication of
guilt, the court may defer sentencing and place the defendant on probation
for a period not to exceed five years "if a written agreement concerning the
deferring of sentence is entered into between the state's attorney and the
[defendant]."  If the defendant violates the conditions of the
deferred-sentence agreement during the probationary period, the court must
impose sentence.  Id.  7041(b).  On the other hand, if the defendant abides
by the terms of the agreement, the court must then strike the adjudication of
guilt, discharge the defendant, and expunge the record of the criminal
proceedings.  Id.  In effect,  7041 conditions the court's power to expunge
a criminal conviction on the agreement of the prosecutor.  Defendant and
amicus curiae Defender General argue this violates the Vermont Constitution's
separation-of-powers clause. 

     The Vermont Constitution provides that the legislative, executive, and
judicial branches of government "shall be separate and distinct, so that
neither exercise the powers properly belonging to the others."  Vt. Const.
ch. II,  5.  An absolute separation of government functions among the
coequal branches, however, is not required or even desirable to achieve the
Constitution's ultimate goal of effective and efficient government.  See
Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11, 556 A.2d 103, 105 (1989)
(powers exercised by different branches necessarily overlap); Trybulski v.
Bellows Falls Hydro-Elec. Corp., 112 Vt. 1, 6-7, 20 A.2d 117, 119-20 (1941)
(certain amount of overlapping of powers is inevitable; many powers are of
doubtful classification both analytically and historically); cf. Mistretta v.
United States, 488 U.S. 361, 381 (1989) (Madison recognized that greatest
security against tyranny and ineffective government lies in system of checks
and balances, not hermetic division of power among 


branches).  Keeping these standards in mind, we must decide whether  7041
unduly impairs the independent institutional integrity of the judiciary by
unreasonably restricting its responsibilities, including its duty to
impartially administer justice.  See Wolfe v. Yudichak, 153 Vt. 235, 255, 571 A.2d 592, 603 (1989) (although some overlap of governmental powers is
inevitable, judiciary must retain power to protect itself against any
impairment of its functions and duties); cf. Mistretta, 488 U.S.  at 383 (no
law may impermissibly threaten judiciary's institutional integrity). 

     In State v. Saari, 152 Vt. 510, 517-19, 568 A.2d 344, 349-50 (1989), we
rejected the argument that the legislature's enactment of mandatory minimum
sentences violated the separation-of-powers doctrine, and we recognized that
sentencing is not "solely a judicial function derived from constitutional
mandates."  Cf. Mistretta, 488 U.S.  at 364 ("Historically, federal sentencing
-- the function of determining the scope and extent of punishment -- never
has been thought to be assigned by the Constitution to the exclusive
jurisdiction of any one of the three Branches of Government.").  Two points
support this notion.  First, the legislature controls the extent of the
judiciary's authority to sentence.  Saari, 152 Vt. at 518, 568 A.2d  at 349. 
Thus, the courts have no inherent authority to suspend a sentence or to
impose a sentence contrary to that authorized by the legislature.  See State
v. Baker, 154 Vt. 411, 419, 579 A.2d 479, 483 (1990) (trial court was without
authority to impose sentence below statutory minimum); State v. Angelucci,
137 Vt. 272, 289, 405 A.2d 33, 42 (1979) (sentencing options not found in
applicable statute are unauthorized); accord Hill v. State, 634 S.W.2d 120,
122 (Ark. 1982); Billis v. State, 800 P.2d 401, 416 (Wyo. 1990). 

     Second, various offices of the executive branch possess powers that can
have a considerable impact on the sentence imposed in any given criminal
case.  The prosecutor determines the extent of a suspect's sentencing
exposure by deciding whether and what charges will be brought, whether to
plea bargain, and what sentence to recommend.  See Saari, 152 Vt. at 518 n.7,
568 A.2d  at 349-50 n.7.  Parole officials may release individual prisoners
before the expiration of the judicially imposed term of imprisonment.  28
V.S.A.  501.  The Governor has 


the unreviewable power to grant pardons in most cases.  Vt. Const. ch. II, 
20; Doe v. Salmon, 135 Vt. 443, 445, 378 A.2d 512, 514 (1977). 

     Defendant and amicus curiae acknowledge that sentencing is not an
exclusive judicial function, but they argue that  7041 offends the
separation-of-powers principle by giving the prosecutor exclusive power to
control what should ultimately be the court's decision whether to impose a
deferred sentence.  They challenge the statute's grant of a prosecutorial
veto power over the court's ability to defer sentences based on the facts and
circumstances of each particular case. 

     The most direct way to address the propriety of the prosecutor's role
under  7041 is to examine the nature of a deferred sentence.  As suggested
by the language of the statute itself, a deferred sentence is not a sentence
at all, but rather a postponement of sentence that offers the defendant an
opportunity to have an adjudication of guilt expunged.  See 13 V.S.A. 
7041(b) (upon violation of terms of probation, "the court  impose sentence")
(emphasis added).  Thus, a deferred sentence is more akin to a conditional
pardon -- a power reserved to the executive -- than to a judicially imposed
sentence based on an adjudication of guilt.  Cf. Billis, 800 P.2d  at 422
(probation without entry of judgment is akin to executive pardon). 

     Moreover,  7041 gives the state's attorney power analogous to the
prosecutor's power to plea bargain.  Typically, the state's attorney will
decide before trial whether to offer a recommended deferred sentence in
exchange for a guilty plea and probation conditions.  If the parties agree,
and the court accepts the agreement, the court will defer sentence upon an
adjudication of guilt.  The sentence is imposed only if the defendant
violates the terms of the agreement.  Similar to plea bargaining, the court
has the final say whether to accept or reject the deferred-sentence
agreement, but neither the defendant nor the court can force the state's
attorney to offer such an agreement in the first place.  See Weatherford v.
Bursey, 429 U.S. 545, 561 (1977) (defendants have no constitutional right to
plea bargain); cf. Billis, 800 P.2d  at 416 (courts have no inherent authority
"to refuse to try a criminal charge upon considerations extraneous to the
legality of the charge" or to expunge a final judgment of conviction for
purposes of "restoring 


the defendant's civil rights").  We realize that under  7041 the state's
attorney retains exclusive power to recommend a deferred sentence even after
a guilty verdict and judgment, but determining whether a power is judicial in
nature depends on the substance and effect of the power rather than on the
procedural posture of the case.  See People v. Superior Court of San Mateo
County, 520 P.2d 405, 411, 113 Cal. Rptr. 21, 27 (1974). 

     In sum, considering the legislature's right to set the parameters for
punishment, and the similarity between the power accorded the state's
attorney in  7041 and other prosecutorial and executive powers, we conclude
that  7041 does not impermissibly interfere with the judiciary's core
functions.  Accordingly, we hold that  7041 does not violate the
separation-of-powers principle established in the Vermont Constitution.  See
Billis, 800 P.2d  at 426 (holding similar statute constitutional); see also
State v. Huerta, 878 F.2d 89, 92 (2d Cir. 1989) (upholding federal statute
requiring motion from prosecutor before court may impose sentence below
statutory minimum based on defendant's cooperation). 

     We recognize that other courts have struck down, or liberally construed
the language of, analogous statutes on separation-of-powers grounds.  See
State v. Jones, 689 P.2d 561, 564 (Ariz. Ct. App. 1984) (striking down
statute conditioning court's power to impose less than mandatory minimum
sentence on recommendation of prosecutor); Superior Court of San Mateo
County, 520 P.2d  at 407, 113 Cal. Rptr.  at 23 (striking down statute giving
prosecutor veto power over trial court's decision to sentence defendants to
diversion program); see also Brugman v. State, 339 S.E.2d 244, 251 (Ga. 1986)
(construing statute to allow sentencing court, on its own inquiry apart from
prosecutor's recommendation, to impose reduced or suspended sentence if it
finds defendant rendered substantial assistance to state); State v. LeCompte,
406 So. 2d 1300, 1311-12 (La. 1981) (same); State v. Olson, 325 N.W.2d 13, 19
(Minn. 1982) (same).  For the reasons stated above, we do not find these
decisions persuasive, to the extent that they are indistinguishable. 

     In the alternative, amicus curiae requests that we subject the
prosecutor's decision whether to recommend a deferred sentence to review by
the trial court under an abuse-of-discretion 


standard.  Cf. State v. Lagares, 601 A.2d 698, 704-05 (N.J. 1992) (statute
requiring enhanced sentence upon prosecutor's motion interpreted to require
adoption of guidelines for seeking enhanced sentences, statement of reasons
for motion, and judicial review of motion under abuse- of-discretion
standard).  We decline this request.  As with the discretion accorded to the
state's attorney regarding charging and plea-bargaining decisions, a decision
whether to recommend a deferred sentence should be subject to judicial review
only upon a showing that the decision was the result of bad faith or of the
application of impermissible discriminatory factors.  Billis, 800 P.2d  at
426; see United States v. Rexach, 896 F.2d 710, 713-14 (2d Cir. 1990)
(prosecutor's decision whether to move for sentence below mandatory minimum
is generally not subject to judicial review, but "cannot be made invidiously
or in bad faith"); cf. State v. Zaccaro, 154 Vt. 83, 92-93, 574 A.2d 1256,
1262 (1990) (selective prosecution requires showing that similarly situated
individuals were not prosecuted and that defendant's prosecution was based on
bad faith or other impermissible considerations).  There is no such showing,
or even allegation, here. 


     Defendant argues, however, that the court abused its discretion by
denying his request that it postpone sentencing for two years and then
consider dismissing the case under V.R.Cr.P. 48(b). The basis of defendant's
motion was the prosecutor's disparate treatment of him and his roommate. 
Assuming, without deciding, that Rule 48(b) would permit this avenue of
relief, we find no abuse of discretion in the court's denial of the motion. 
Noting that uncontroverted facts had led to defendant's conviction for a
serious crime, the court stated that granting the relief defendant requested
would be inconsistent with its duty to administer justice fairly.  Defendant
claims that, on the contrary, the fair administration of justice was thwarted
by the prosecutor's disparate treatment of him and his roommate, but, as
noted, he has failed to show that the prosecutor's decision was based on
impermissible considerations.  Even if we accept defendant's assertion that
the evidence suggested that his roommate, not he, was involved in other drug
sales, we would not reverse.  Part of the prosecutor's rationale for offering
the roommate a deferred 


sentence was that a motion to suppress cast some doubt over the outcome in
the roommate's case.  Cf. State v. Judge, 675 P.2d 219, 223 (Wash. 1984) (no
equal protection violation because decision to prosecute was rationally based
on prosecutor's ability to prove charge).  In short, defendant has failed to
allege any improper motive behind the prosecutor's decision, and has failed
to show that the court abused its discretion in denying his motion. 


                              FOR THE COURT:

                              Associate Justice

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