State v. Rafuse

State v. Rafuse  (97-458); 168 Vt. 631; 726 A.2d 18

[Filed 8-Dec-1998]




                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-458

                            SEPTEMBER TERM, 1998

                                      
State of Vermont         }            APPEALED FROM:
                         }
                         }
     v.                  }            District Court of Vermont
                         }            Unit No. 3, Caledonia Circuit
James Rafuse             }
                         }            DOCKET NO. 1016-11-95 CaCr


       In the above-entitled cause, the Clerk will enter:

       Defendant James Rafuse appeals from a trial court order imposing a
  sentence of five to ten years each for two counts of sexual assault after a
  finding the defendant violated his deferred-sentence probation.  Defendant
  claims that the trial court erred by holding it had no alternative to
  imposing sentence.  We affirm.

       In July 1996, the trial court approved a deferred-sentence agreement
  between defendant and the state's attorney.  The agreement  placed
  defendant on probation and deferred for five years the sentence on two
  counts of sexual assault of a minor provided that defendant complied with
  the conditions of his probation.  See 13 V.S.A. § 7041(a)(authorizing
  deferred sentences when agreed to by state and defendant).  The potential
  sentence was five to ten years'  incarceration on each count.

       In February 1997, defendant's probation officer filed a  complaint
  alleging that defendant violated three conditions of his probation.  The
  trial court dismissed two of the alleged violations, but found that
  defendant had violated the condition of his probation requiring him to
  report to his probation officer in the manner and at such a time and place
  as the probation officer required. Defendant asked the trial court to
  continue defendant on the deferred sentence invoking 28 V.S.A. § 304
  (providing that, in cases of probation violation, "the court may, in its
  discretion, revoke probation and  require the probationer to serve the
  sentence").  The court  determined that § 304 applied only to probationers
  who had received suspended sentences, as opposed to those whose sentences
  are deferred.  The court also concluded that the discretionary language in
  § 304 is in conflict with the explicit command in § 7041(b) that deferred
  sentences "shall" be actively imposed in the event of a probation
  violation.  At sentencing, the court imposed five to ten years of
  incarceration concurrent on each count of sexual assault, all suspended
  except sixty days.  In addition, the court again placed defendant on
  probation.  Defendant began serving his sentence on November 7, 1997.  This
  appeal followed.

       Defendant argues that, pursuant to this Court's holding in  State v.
  Murray, 159 Vt. 198, 617 A.2d 135 (1992), the trial court had the authority
  to impose alternative punishments under § 304.  The State maintains that
  the trial court properly interpreted the language of § 7041(b) as a
  mandatory directive.  Section 7041(b) addresses probation violation in the
  context of deferred sentencing agreements and states in part: "[u]pon
  violation of the terms of  probation or of the deferred sentence agreement,
  the court shall impose sentence." 13 V.S.A. § 7041(b) (emphasis added).  In
  contrast,  28 V.S.A. § 304(a) addresses revocation of probation and
  imposition of a suspended sentence.  Section 304(b) identifies four
  alternatives to probation

 

  revocation and sentence imposition pursuant to § 304(a): continuing the
  existing sentence; effecting necessary or desirable changes or enlargements
  of the conditions of probation; conducting a conference with probationer
  re-emphasizing the necessity of compliance with the conditions of
  probation; or issuing a formal or informal warning to the probationer.  28
  V.S.A. §304(b).

       This Court interprets statutes using the general rule that the true
  intent and purpose of the Legislature must be ascertained and given effect. 
  See Shea v. Metcalf,      Vt.     ,     , 712 A.2d 887, 889 (1998).  See
  also State v. Goyet, 119 Vt. 167, 171, 122 A.2d 862, 865 (1956) ("In
  determining whether the word `may' when used in  a public statute is to be
  construed as imposing an absolute duty or merely a discretionary power, the
  general rule of statutory construction should be applied that the true
  intent and purpose of the Legislature must be ascertained and given
  effect").  A more  specific statutory provision will prevail according to
  its terms over a more general statutory provision.  See Stevenson v.
  Capital Fire Mut. Aid Sys., Inc., 163 Vt. 623, 625, 661 A.2d 86, 88 (1995).
  Although penal statutes should be strictly interpreted, they must not be
  interpreted so strictly as to defeat the legislative purpose in enacting
  the law or to produce irrational and absurd results. See State v. Galusha,
  164 Vt. 91, 92-93, 665 A.2d 595, 596 (1995). The ordinary meaning of the
  language is presumed to be intended unless it would manifestly defeat the
  object of the provisions.  See Goyet, 119 Vt. at 171, 122 A.2d  at 865.

       In this instance, § 7041(b) is clear in the use of the language
  "shall."  Statutes generally use "shall" as imperative or mandatory
  language.  See Black's Law Dictionary 1375 (6th ed. 1990).  In its 
  ordinary significance, it is a word of command, and it is inconsistent with
  a concept of discretion.  See id.  In other contexts this Court has
  interpreted "shall" as mandatory.  For instance, in State v. Ashley, 161
  Vt. 65, 68-69, 632 A.2d 1368, 1370 (1993), we held that the statutory
  language "unequivocally  contemplates the release of an accused person who
  is awaiting trial,"  when it states a person charged with offense "shall .
  . . be ordered  released pending trial in accordance with" 13 V.S.A. §
  7554(a)  (emphasis omitted).  Similarly, we held that the use of "shall" in
  3 V.S.A. § 2822(c)(4) required the trial court to fine the defendant after
  the court determined that the defendant violated a court order. See State
  v. Pownal Tanning Co., 142 Vt. 601, 604-605, 459 A.2d 989, 991 (1983).

       Furthermore, interpretation of the word "shall" in § 7041 as
  discretionary would defeat the Legislature's intent and the purpose  of the
  statute.  A deferred-sentence agreement is a sentence postponed rather than
  imposed.  See State v. Pierce, 163 Vt. 192, 196,  657 A.2d 192, 195 (1995). 
  It is similar to a conditional pardon, and pardons are a power
  traditionally reserved for the executive branch.  See id. at 196-97, 657 A.2d  at 195.  Although a trial court may have the discretion to accept or
  reject a deferred-sentence agreement, the Legislature restricted the
  court's  power by granting only the state's attorney the ability to offer a 
  deferred sentence. See id. at 197, 657 A.2d  at 195-197.  Thus, the
  Legislature has already limited the court's actions by statute, and  our
  interpretation of § 7041 simply reinforces the Legislature's  carefully
  circumscribed alternative to a criminal sentence.

       Given our interpretation of "shall" as mandatory, the alternatives in
  28 V.S.A. § 304 conflict with 13 V.S.A. § 7041 and are not applicable. 
  Defendant misconstrues the language in Murray, which states: "[a]lthough
  the regulatory provisions in Title 28 [of  the Vermont Revised Statutes]
  are normally used for post-sentence probation . . . they apply equally to
  probation imposed as part of a deferred sentence."  159 Vt. at 201, 617 A.2d  at 137.  The language  refers to the general nature of probation under
  deferred-sentence agreements.  In Murray, we explained that "the provisions
  governing  probation in Title 28 [of the Vermont

 

  Revised Statutes] apply to deferred-sentence probation where there is no
  conflict with the specific provisions of § 7041."  Id. at 203, 617 A.2d  at
  138 (emphasis added).  Our holding in Murray, therefore, did nothing to
  undermine the 13 V.S.A. § 7041(b) directive that "the  court shall impose
  sentence" because 13 V.S.A. § 304 directly  conflicts with the more
  specific provision of § 7041(b).

       Therefore, the trial court properly ruled it must impose sentence
  after finding defendant violated a condition of his probation outlined in
  his deferred-sentence agreement.

       Affirmed.




                       BY THE COURT:



                       _______________________________________
                       Jeffrey L. Amestoy, Chief Justice

                       _______________________________________
                       John A. Dooley, Associate Justice

                       _______________________________________
                       James L. Morse, Associate Justice

                       _______________________________________
                       Denise R. Johnson, Associate Justice

                       _______________________________________
                       Marilyn S. Skoglund, Associate Justice