State v. Gardner

State v. Gardner  (99-015); 169 Vt. 566; 733 A.2d 732

[Opinion filed 3-Feb-1999]
[Motion for Reargument denied 3-Mar-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-015

                             JANUARY TERM, 1999


     State of Vermont	             }	APPEALED FROM:
                                     }
                                     }
          v.	                     }	District Court of Vermont,
                                     }	Unit No. 3, Franklin Circuit
     Arnold Gardner	             }
                                     }	DOCKET NOS.	1096-9-97Frcr &
                                                        1123-9-97Frcr 


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

       Pursuant to a plea agreement with the State, defendant has entered a
  plea of guilty to a  felony charge of operating a vehicle under the
  influence of intoxicating liquor in violation of 12  V.S.A. §§ 1201(a)(2)
  and 1210(d) (relating to third or subsequent offense).  Defendant agreed to 
  be sentenced pursuant to 13 V.S.A. § 11, which permits incarceration for a
  period of "up to and  including life" upon the fourth or subsequent
  conviction for any felony other than murder.  The  plea agreement included
  the dismissal of certain other pending charges and a sentence of four 
  years, six months to life with all but four years and six months suspended
  in favor of probation.  On December 21, 1998 defendant filed a document
  indicating that he did not wish to appeal the  conviction.  This document
  also bears the signature of defendant's counsel, under the word 
  "Approved."  The district court conducted a hearing and thereafter
  determined that defendant had  entered his guilty plea voluntarily, with
  knowledge and understanding of the consequences and  after a knowing waiver
  of his constitutional rights.  Judgment was entered accordingly and the 
  clerk of the district court has transmitted notice of these proceedings to
  this Court.

       Pursuant to V.R.A.P. 3(b), no notice of appeal is necessary "[i]n any
  criminal case  resulting in a sentence of life imprisonment."  Under the
  rule, this Court "shall in each such case  review the record in the
  interests of justice and pass upon any claim of error therein as if a
  notice  of appeal has been filed, unless the defendant with the advice of
  counsel has waived such appeal  in writing."  Id.

       Although we assume defendant entered into the plea agreement with the
  intention of  complying with his conditions of probation and thus serving
  only four and a half years of  incarceration, this is still a criminal case
  resulting in a sentence of life imprisonment within the  meaning of
  V.R.A.P. 3(b).  The district court is empowered to place a defendant on
  probation  only "[a]fter passing sentence."  28 V.S.A. § 205(a).  Should
  the State ever establish that  defendant violated the conditions of
  probation, the district court would be without authority to  revisit the
  underlying sentence; the only available alternatives involve imposing the
  underlying  sentence, ordering that the sentence be served in the
  community, revisiting the probation  conditions themselves, or simply
  warning the defendant.  See 28 V.S.A. § 304; see also State v.  Wargo, ___
  Vt. ___, ___, 719 A.2d 407, 410 (1998) (defendant on probation "in custody
  under  sentence" for purposes of post-conviction relief).  Likewise,
  although any probation revocation  would be appealable "in the same manner"
  as an appeal of the underlying conviction, 28 V.S.A.  § 302(b), such an
  appeal would not be an opportunity for defendant to attack his 


 

  original sentence, State v. Therrien, 140 Vt. 625, 627, 442 A.2d 1299, 1301
  (1982).

       In State v. Currier, 162 Vt. 626, 649 A.2d 246 (1994), we held that a
  defendant to whom  V.R.A.P. 3(b) applies "will not be permitted to forego
  an appeal unless the trial court determines  that the defendant's decision
  was knowingly and intelligently waived."  Id. at 627, 649 A.2d  at  247.  We
  have reviewed the record of the hearing at which the trial court accepted
  defendant's  guilty plea.  At the hearing, the court specifically and in a
  detailed manner inquired of defendant  as to the basis for his decision to
  waive his appellate rights.  The trial court made the requisite 
  determinations, and it is further apparent that defendant has acted on
  advice of counsel.   Accordingly, we will not consider the case under the
  automatic appeal provisions of V.R.A.P.  3(b).

       Remanded.	



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