State v. Priest

State v. Priest (98-490); 170 Vt. 576; 743 A.2d 1072

[Opinion Filed 06-Oct-1999]
[Motion for Reargument Denied 07-Jan-2000]]


           
                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-490

                            SEPTEMBER TERM, 1999


State of Vermont	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	District Court of Vermont,
	                               }	Unit No. 2, Bennington Circuit
Michael Priest	                       }
	                               }	DOCKET NO. 295-4-94Bncr


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


       Defendant appeals the trial court's sentence imposed after defendant
  admitted violating  conditions of his probation, arguing that the court
  abused its discretion when it failed to alter the  original sentence.  We
  affirm.

       In September 1994, defendant pleaded guilty to two counts of sexual
  assault on a minor, see  13 V.S.A. § 3252(3), and was sentenced to a term
  of imprisonment of zero-to-eight years, all  suspended, with several
  conditions of probation.  In July 1998, defendant's parole officer filed a 
  complaint alleging that defendant had violated three conditions of
  probation, including failing to  participate in an approved treatment
  program for sex offenders.  Defendant admitted to the  violations and,
  following sentencing hearings in August and October 1998, the court ordered
  the  execution of the zero-to-eight year sentence originally imposed in
  September 1994.

       On appeal, defendant claims that the court abused its discretion when
  it failed to alter the  original sentence and instead imposed the
  zero-to-eight year sentence.  Discretionary rulings are not  subject to
  revision here unless it clearly and affirmatively appears that such
  discretion has been  abused or withheld.  See State v. Picknell, 142 Vt.
  215, 230, 454 A.2d 711, 718 (1982).  So long as  there is a reasonable
  basis for the court's action, we will not overturn it.  See State v. Savo,
  141 Vt.  203, 208, 446 A.2d 786, 789 (1982).

       Defendant's abuse-of-discretion claim is founded on his assertion
  that, "but for" the court's  misunderstanding of its sentencing authority,
  defendant would have received a lesser sentence to  serve.  Defendant
  contends that the court failed to consider the alternative of suspending a
  part of  the underlying sentence.  Assuming, without deciding, that the
  alternative envisioned by defendant  was available to the court, defendant
  has neither clearly nor affirmatively identified how the court  abused its
  discretion.  "When a violation of probation is established, the trial court
  has discretion,  pursuant to 28 V.S.A. § 304, to revoke probation and
  require the original sentence to be served,  continue probation, or alter
  the conditions of probation."  State v. Therrien, 140 Vt. 625, 627-28,  442 A.2d 1299, 1301 (1982).

       At the sentencing hearing, the court expressed an interest in ensuring
  defendant's eligibility to  participate in an incarcerative sexual offender
  treatment program.  Informed that under the  Department of Corrections
  guidelines, defendant would be ineligible for the program in the absence 
  of a minimum sentence of at least several months, the court observed that
  it was without authority  to impose a minimum sentence greater than zero,
  as imposed in the underlying 

 
 
  sentence.  The court was correct.  The court's authority to alter a
  sentence, whether to increase or  reduce it, is limited by 13 V.S.A. §
  7042(a), which allows alteration only within ninety days of the  imposition
  of the original sentence.  See also State v. Draper, 167 Vt. 636, 637, 712 A.2d 894, 895  (1998) (mem.) (holding §7042(b) allows state's attorney or
  attorney general to file motion with  sentencing judge to increase, reduce
  or otherwise modify sentence within seven days of imposition  of sentence).
	
       Defendant "overlooks the fact that Vermont law distinguishes between
  the imposition of a  sentence and the execution of it."  Therrien, 140 Vt.
  at 627, 442 A.2d  at 1300.  Here, whatever the  merits of defendant's claim
  that the court could devise an execution of sentence that would satisfy 
  the internal guidelines for Department of Corrections program eligibility,
  the sentence is considered  to be imposed at the time of the original
  sentencing.  See id.  In determining that it was without  legal authority
  to alter the sentence originally imposed in September 1994, the court
  neither abused  nor withheld its discretion.  

       Although the court initially expressed some doubt regarding the
  propriety of revoking  defendant's probation, it's findings clearly
  indicate that it thought that revoking probation and  imposing the
  underlying sentence were appropriate here:

       I find that on the basis of the original offenses, which are two
  counts of sexual assault  on minors, and the intervening conduct of the
  probationer, as I have set forth above,  that the probationer is in need of
  correctional treatment which can be most effectively  provided if the
  defendant is confined.  And, further, that it would unduly depreciate the 
  seriousness of the violation of probation relating to the failure to
  successfully complete  sex offender treatment if probation were not
  revoked.

       "Absent a showing that the trial court abused or withheld its
  discretion, the enforcement of  the original sentence after a finding of
  violation of probation is without error."  Therrien, 140 Vt. at  628, 442 A.2d  at 1301 (1982).  The court's findings establish a reasonable basis for
  its decision to  revoke defendant's probation and impose the underlying
  sentence. 

       Affirmed.

       JOHNSON, J., concurring.   I concur in the judgment solely for the
  reason that the trial  court did not abuse its discretion in imposing
  incarceration.  I am authorized to state that Justice  Dooley joins this
  opinion.


	                               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