State v. Dove

STATE_V_DOVE.93-441; 163 Vt 429; 658 A.2d 936

[Filed 24-Mar-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 press. 

                                 No. 93-441


State of Vermont                                  Supreme Court

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


Jonathan Dove                                     February Term, 1995



John P. Morrissey, Specially Assigned

William D. Wright, Bennington County State's Attorney, and Marcia J. Moss,
Deputy State's Attorney, Bennington, for plaintiff-appellee 

Peter F. Langrock and Kevin E. Brown of Langrock Sperry & Wool, Middlebury, for
defendant-appellant


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


     MORSE, J.   Defendant appeals from the denial of a motion to withdraw a
nolo contendere plea after he received an eight- to fifteen-year sentence for
the crime of careless and negligent driving with serious injury resulting. 
23 V.S.A.  1091(c).  Defendant contends that because his sentence was
statistically unprecedented, his plea was not knowing, voluntary, and
intelligent, and his sentence violated the proportionality clause of Chapter
II,  39 of the Vermont Constitution.  Defendant further contends that his
sentence was based on his status as a drug addict and that the district court
abused its discretion by considering his history of alcohol 

 

and drug addiction.  We affirm. 

     Defendant was travelling west on Route 9 toward Bennington when he lost
control of his car and struck an oncoming vehicle.  Defendant and the five
occupants of the other vehicle sustained injuries.  Two of the occupants
suffered back and spinal injuries which required surgery; one of those
occupants is now permanently paralyzed from the waist down.  The State
charged defendant with violating 23 V.S.A.  1201(a)(2) (driving while under
the influence) and 23 V.S.A.  1091(c) (careless and negligent driving with
serious injury resulting). 

     After consulting his lawyer, defendant entered a plea of nolo contendere
to the charge of careless and negligent driving with serious injury
resulting.  As part of that plea agreement, the State did not prosecute the
charge of driving under the influence.  The court ordered a pre- sentence
investigation report and held a three-hour hearing, after which the court
sentenced defendant to eight to fifteen years imprisonment.  Defendant moved
to withdraw his plea, and the court denied the motion. 

     Different standards are applied to plea withdrawal motions depending on
whether they are made before or after sentencing.  A motion made before
sentencing is to be liberally granted "where the reason is fair and just and
the prosecution has not relied on the plea to its substantial prejudice." 
Reporter's Notes, V.R.Cr.P. 32(d) at 151.  When a motion to withdraw a nolo
contendere plea is made after sentencing, however, "the court may set aside
the judgment of conviction and permit withdrawal of the plea only to correct
manifest injustice," a much stricter standard.  V.R.Cr.P. 32(d); see State v.
Wisell, 136 Vt. 541, 542, 394 A.2d 1144, 1144 (1978). 

     Defendant does not challenge the adequacy of the plea colloquy; rather,
defendant contends that because his sentence was unprecedented, he could not
adequately assess the risks 

 

involved in entering his plea. Therefore, he argues, his plea was not
knowing, voluntary, and intelligent.  V.R.Cr.P. 11(b)-(d); see State v.
Hamlin, 143 Vt. 477, 481, 468 A.2d 557, 559 (1983) (intelligent plea requires
"full knowledge of the information necessary to assess adequately the risks
involved"). 

     Even assuming the sentence was unprecedented, defendant, who was
represented by counsel, should have known that 23 V.S.A.  1091(c)
authorizes a minimum sentence of one and a maximum sentence of fifteen years.
 See State v. Bushway, 146 Vt. 405, 408, 505 A.2d 660, 662 (1985) (not abuse
of discretion to impose eighteen-to twenty-year sentence where sentence was
within limits set by statute).  Although defendant's trial lawyer later
stated in an affidavit that he thought the chance of receiving the sentence
imposed was "unappreciable" and that defendant entered the plea agreement
"without even considering the possibility," defendant's lawyer had advised
defendant regarding the range of potential sentences.  While the sentence may
have been the longest yet imposed, the severity of the sentence was
foreseeable given defendant's criminal history and the severity of the
victims' injuries.  We will not set aside a plea after sentencing because a
defendant or his lawyer "`misapprehended . . . the likely penalties attached
to alternative courses of action.'"  Hamlin, 143 Vt. at 481, 468 A.2d  at 559
(quoting Brady v. United States, 397 U.S. 742, 757 (1970)). 

     Defendant's second argument is that the eight- to fifteen-year sentence
violates the proportionality clause of Chapter II,  39 of the Vermont
Constitution.  A penalty is not constitutionally excessive unless it is
grossly disproportionate or out of all just proportion to the offense.  State
v. Venman, 151 Vt. 561, 571-72, 564 A.2d 574, 581 (1989).  Defendant does
not, nor can he, seriously challenge the Legislature's judgment in
authorizing a one- to fifteen- 

 

year sentence for the crime of careless and negligent driving with serious
injury resulting.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (substantial
deference should be granted to legislatures to determine types and limits of
criminal punishments), overruled on other grounds by Harmelin v. Michigan,
501 U.S. 957, 965 (1991). 

     The thrust of defendant's first and second arguments is that others
convicted of the same crime, and others convicted of the crime of careless
and negligent driving with death resulting, have been given lesser sentences.
 Defendant relied at the plea bargaining level upon the experience of his
trial lawyer, who had never in his twenty-year career heard of such a serious
sentence, and here upon that same experience and statistics compiled by the
Vermont Center for Justice Research.  We place little weight on the
statistics offered by defendant.  The statistics cover only the roughly
four-year period from January 1, 1990 through September 30, 1993. During that
period, only twenty-one cases of careless and negligent driving were disposed
of, four resulting in serious injury and seventeen resulting in death. 
Further, the statistics merely list the sentences imposed in each case; they
tell us nothing of the many other factors a court may consider in imposing a
sentence.  See Bushway, 146 Vt. at 407, 505 A.2d  at 661 (court considers wide
range of relevant information in fashioning sentence, including acts by which
crime was committed and circumstances of the offense).  This sample is simply
too small and fails to take into account enough variables to compare
sentences imposed for the two crimes, let alone to interpret our
constitution. 

     We note, however, that were we to rely on the statistics, they show that
only the minimum sentence of eight years to serve was unprecedented.  The
maximum sentence of fifteen years had been imposed in approximately one out
of five cases recorded.  A maximum fifteen- 

 

year sentence had been imposed in three of the seventeen offenses resulting
in death, and in one of the four offenses resulting in serious injury.  Of
the straight sentences of incarceration, three out of ten were for the
maximum fifteen-year sentence, and one imposed a minimum of five years. 
Consequently, in terms of maximum sentences, defendant's sentence was neither
unprecedented nor out of proportion to the sentences of other offenders. 

     Defendant also argues that the court sentenced him for his status as a
drug addict or at least abused its discretion in considering his history of
drug and alcohol addiction.  Although a state may not make drug addiction a
crime or punish someone solely because of their status as an addict, see
Robinson v. California, 370 U.S. 660, 667 (1962) (invalidating imposition of
sentence for addiction to narcotic drugs), a court may consider alcohol
consumption when determining a sentence on a careless and negligent driving
charge.  13 V.S.A.  7030 (court shall consider nature and circumstances of
crime).  Defendant argues, however, that because the court considered his
frequent and continued failure in alcohol and drug rehabilitation programs,
the court sentenced him for his status as a drug addict.  Defendant had a
criminal history spanning two decades and four states.  The record indicates
that most if not all of defendant's participation in rehabilitation programs
was mandated as a condition of either probation or parole.  Defendant
regularly violated these conditions, and past violations of probation and
parole are proper considerations in determining a sentence.  Id. (court shall
consider history and character of defendant); see also State v. Allen, 145
Vt. 593, 598, 496 A.2d 168, 171 (1985) 

 

(finding that probation could not help offender with severe alcohol problem
was effectively a practical finding that offender is in need of correctional
treatment best provided by incarceration). 

     Affirmed.

                              FOR THE COURT:

                              ______________________________
                              Associate Justice