State v. Ingerson

State v. Ingerson (2003-114); 176 Vt. 428; 852 A.2d 567

2004 VT 36

[Filed 09-Apr-2003]


       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.


                                 2004 VT 36

                                No. 2003-114


  State of Vermont	                         Supreme Court

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

  James Ingerson	                         November Term, 2003


  Karen R. Carroll, J.

  Dan M. Davis, Windham County State's Attorney, and Scott A. Willison, Law
    Clerk, (On the Brief), Brattleboro, for Plaintiff-Appellee.  

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

       ¶  1.  REIBER, J.     Defendant was convicted of burglarizing
  Walker's Restaurant in Brattleboro, Vermont and received an enhanced
  sentence of twenty to thirty years of imprisonment as a habitual offender
  under 13 V.S.A. § 11.  Defendant appeals both the conviction and sentence,
  claiming that (1) he was prejudiced by the court's failure to arraign him
  on the amended information charging him as a habitual offender; (2) the
  evidence was not sufficient to prove beyond a reasonable doubt that he
  broke into Walker's Restaurant with the intent to steal; and (3) the
  sentence was unfair and unjust because it was driven by the judge's animus
  towards defendant.  We affirm.  
   
       ¶  2.  In early March 2002, defendant entered Walker's Restaurant in
  Brattleboro by breaking a window near the building's back door.  Defendant
  had worked at the restaurant as a prep cook and later did some painting and
  sheetrocking for its owners.  While inside the restaurant, defendant tried
  to break into a safe, but managed only to badly damage its handle. 
  Defendant left the restaurant after taking some loose change the owner kept
  in a desk drawer.  The following month, the State charged defendant with
  burglary and unlawful mischief in violation of 13 V.S.A. § 1201 and §
  3701(c) respectively.  He was arraigned on the charges in early May.  On
  May 31, 2002, the State notified the court and defendant that it intended
  to seek an enhanced penalty under 13 V.S.A. § 11 because defendant had four
  prior felony convictions.  The State filed an amended information to that
  effect the same day.  A one-day trial was held in October 2002, and the
  jury found defendant guilty of burglary and unlawful mischief.  After the
  court sentenced defendant to a term of twenty to thirty years, he filed the
  present appeal.
   
       ¶  3.  Defendant first claims error in the trial court's failure to
  arraign him on the habitual offender charge.  Vermont's habitual offender
  statute, 13 V.S.A. § 11, provides an enhanced penalty for a defendant's
  fourth or subsequent felony conviction.  13 V.S.A. § 11.  The statute does
  not, however, define a separate or new offense.  State v. Kasper, 137 Vt.
  184, 213, 404 A.2d 85, 101 (1979).  Rather, the statute provides an
  enhanced penalty for repeat offenders.  Id.; see Parke v. Raley, 506 U.S. 20, 27 (1992) ("[A] charge under a recidivism statute does not state a
  separate offense, but goes to punishment only.").  As defendant
  acknowledges, we must review this first claim for plain error only because
  defendant did not preserve the argument for appeal.  State v. Mears, 170
  Vt. 336, 341, 749 A.2d 600, 604 (2000); see V.R.Cr.P. 52(b) (Supreme Court
  may notice plain errors affecting a defendant's substantial rights even if
  errors were not brought to trial court's attention first).  Plain errors
  are those that affect the heart of a defendant's constitutional rights and
  leave little doubt that a miscarriage of justice has occurred.  See Mears,
  170 Vt. at 341, 749 A.2d  at 604. 

       ¶  4.  "One of the most fundamental principles of our criminal justice
  system is that a person charged with a crime must be notified of the
  charges against him."  State v. Cadorette, 2003 VT 13,  4, 826 A.2d 101. 
  To that end, V.R.Cr.P. 10 requires the court to read the indictment or
  information to an accused in open court, and to obtain from the accused a
  plea on the charges against him.  V.R.Cr.P. 10; Cadorette, 2003 VT 13, at 
  4.  As we explained in Cadorette, "the central purpose of arraignment is to
  ensure that defendant understands the nature of the charges so that he can
  prepare a defense."  Cadorette, 2003 VT 13, at  5.  Failure to arraign does
  not amount to a structural error in the criminal proceeding and is not
  grounds for reversal absent a showing that the defendant suffered prejudice
  from the omission.  Id., at  6.  Defendant must show, therefore, that he
  did not have actual notice of the charges against him or an adequate
  opportunity to defend himself to justify reversal of the underlying
  conviction.  Id.  
   
       ¶  5.  Defendant has not shown the requisite prejudice necessary to
  overturn his conviction.  Defendant does not dispute that he received a
  copy of the amended information in which the State noticed its intent to
  seek the enhanced penalty permitted by 13 V.S.A. § 11.  The record shows
  that the court discussed the amended information with defense counsel in
  defendant's presence during a status conference the court held on July 9,
  2002.  At that time, the court asked defendant's attorney whether she had
  received a copy of the amended information, to which defense counsel
  replied, "We have, your Honor, and I've discussed it with my client."  The
  court commented that defendant faced a potential term of life imprisonment. 
  The matter came up again just prior to trial.  Before the jury was seated,
  defendant's attorney asked the court to confirm that it would not mention
  the habitual offender charge to the jury until after the jury finished
  deliberating on the burglary and unlawful mischief charges.  The court
  confirmed the procedure, and the parties proceeded to try the case. 
  Following the verdict, defendant waived his right to have the jury decide
  whether the State had proved his prior convictions beyond a reasonable
  doubt as 13 V.S.A. § 11 requires.

       ¶  6.  On this record, we do not see any prejudice affecting
  defendant's substantial rights.  The record shows that defendant was
  actually aware of the charge and had an opportunity to prepare a defense. 
  Importantly, defendant does not allege here that he did not understand the
  nature of the charge under 13 V.S.A. § 11.  Moreover, he waived his right
  to a jury decision on the existence of his prior convictions.  Plain error
  does not arise from a failure to arraign on a charge under 13 V.S.A. § 11
  where the defendant had actual notice of the charge, had an opportunity to
  defend against it, and waived his right to a jury determination on the
  existence of the prior convictions required for an enhanced sentence under
  13 V.S.A. § 11.  Because defendant did not suffer any prejudice from the
  lack of an arraignment on the habitual offender allegation, the conviction
  must be affirmed.  

       ¶  7.  Defendant next claims the court erred by denying his motion for
  judgment of acquittal because the evidence was insufficient to convict him
  of burglary.  We will affirm the trial court's decision if the evidence,
  when viewed in the light most favorable to the State, reasonably and fairly
  supports the defendant's guilt beyond a reasonable doubt.  State v.
  Driscoll, 137 Vt. 89, 100, 400 A.2d 971, 978 (1979).  Here, defendant
  argues that the State failed to prove beyond a reasonable doubt that he
  entered Walker's Restaurant with the intent to steal, a necessary element
  for his burglary conviction.  See 13 V.S.A. § 1201(a) (a person commits a
  burglary if she enters a building without authorization with the intent to
  commit a felony).  We disagree.
   
       ¶  8.  The jury heard evidence that defendant told the police that
  he went to Walker's Restaurant to get some money because he was in debt. 
  The jury saw a videotape of defendant breaking a rear window to gain entry
  into the restaurant.  The State also presented evidence depicting the
  damage defendant did to the safe, nearly breaking off the safe's handle. 
  The jury could infer that defendant decided to enter the restaurant by
  breaking a window in the back of the building because he wanted to conceal
  his presence there, and that his desire for secrecy derived from his intent
  to steal something from the restaurant that night.  Those inferences have
  additional support in the evidence of defendant's unsuccessful attempt to
  break open the safe.  We have no difficulty concluding, therefore, that the
  court correctly denied defendant's motion for judgment of acquittal.  The
  State introduced sufficient evidence to convince a reasonable juror beyond
  a reasonable doubt that defendant entered Walker's Restaurant intending to
  steal.

       ¶  9.  Finally, defendant challenges his sentence as unjust and
  unfair.  Defendant argues that when deciding the appropriate sentence in
  this case, the court was motivated by bias against him and not by
  legitimate sentencing considerations.  In support of his position,
  defendant points to comments the judge made after taking evidence during
  the sentencing hearing.  The comments defendant finds objectionable are
  underscored in the following excerpt from that hearing: 
   
    Okay.  Well, I have to say that your attorney has a way of being
    able to make people look pretty good, and I have a feeling she'd
    be able to make Charles Manson look pretty good if she had the
    chance.  But with regard to the request that you be given
    probation at this point, all I can say, is been there done that
    Mr. Ingerson.  You've been in here in court since you were
    eighteen years old, you're someone who's been in and out of jail
    for over thirteen years . . . . I counted, you have twenty-two
    criminal convictions, plus the three criminal failures to appear,
    that's twenty-five criminal convictions.  Three violations of
    probation, three DRs while you're in jail, which include
    possessing contraband, refusing to obey people in jail and at
    least seven violations of your furlough.  The issue about your use
    of alcohol and drugs, frankly, is insulting to me.  This argument
    that . . . there's some entitlement involved that everyone here is
    entitled to have the State provide them treatment, and what do you
    think Corrections is supposed to do when you don't complete your
    treatment or you continue using? . . . I'm sure there have been
    times when you've been a worker, I'm sure there have been times
    that you've been a good father to your children, and I don't
    appreciate, really, as a parent myself, having thrown before me
    the fact that you shouldn't go to jail because your poor kids are
    going to miss you.  I'm sure your kids are going to miss you, but
    frankly, Mr. Ingerson, I think at this point they'd be better off
    without a role model such as you having influence on them.  You
    have no ability to conform yourself to any norms or rules of this
    society.  That goes back to the violations of probation, the
    furlough violations, the DR violations, the failures to appear, .
    . . you can't even conform yourself to the norms of a jail,
    possessing contraband, refusing to obey, you know, I'm left to
    wonder where it is that you can be that you can act as a
    responsible person.


  (Emphasis added.)  The court then explained that the sentence it planned to
  impose would serve society's interests in incapacitating defendant from
  reoffending and in deterring him, and others like him, from engaging in
  repeated criminal behavior.  The court concluded, 

    I don't agree, as I said, with the idea of probation.  This Court
    has wasted enough time on you.  We've had you in here too long. 
    The Department of Corrections has wasted too much time on you. 
    These people do not need to worry about supervising you except in
    a jail cell. 

  (Emphasis added.)
   
       ¶  10.  The district court has broad discretion when imposing a
  sentence.   State v. Kelley, 163 Vt. 325, 330, 664 A.2d 708, 711 (1995). 
  We will affirm a sentence on appeal if it falls within statutory limits,
  id., and it was not derived from the court's reliance on improper or
  inaccurate information.  State v. Neale, 145 Vt. 423, 436, 491 A.2d 1025,
  1033 (1985).  Reversal for resentencing is required if the defendant can
  show that the sentencing judge's decision was driven by personal bias or
  animus against the defendant.  See United States v. Droge, 961 F.2d 1030,
  1038 (2d Cir. 1992) (observing that resentencing is required if a judge
  imposes a sentence out of personal spite against the defendant); United
  States v. Giraldo, 822 F.2d 205, 210 (2d Cir. 1987) ("A sentence imposed
  for an improper purpose is subject to vacation on appeal.").  Although a
  sentence that is based on improper information may be vacated on appeal,
  see, e.g., Neale, 145 Vt. at 436, 491 A.2d  at 1033, it must be recognized
  that the district court may properly consider more than the facts of the
  particular crime at issue when sentencing a defendant.  In re Morrill, 129
  Vt. 460, 464-65, 282 A.2d 811, 814-15 (1971).  The defendant's background,
  his family, past conduct, and his character and propensities are all
  appropriate considerations for the sentencing court.  Id.; see also State
  v. LaBounty, 168 Vt. 129, 143, 716 A.2d 1, 10-11 (1998) (evidence shedding
  light on defendant's nature and propensities is permissible in sentencing
  hearing); State v. Bushway, 146 Vt. 405, 407, 505 A.2d 660, 661 (1985)
  (court may consider wide range of information when fashioning sentence,
  including offender's "propensity and nature").  In this case, we find no
  abuse of the trial court's discretion by imposing the lengthy sentence it
  did.
   
       ¶  11.  When put into context, the judge's comments defendant cites
  as evidence of animus actually appear to reflect the court's consideration
  of defendant's character and propensities.  Indeed, the judge's comments
  responded directly to defendant's plea for leniency, a plea that ignored a
  troubled record of compliance with court-ordered treatment programs and
  sought a simplistic resolution more reflective of defendant's continued
  denial of his underlying disease than anything else.  At sentencing,
  defendant argued that his substance abuse caused him to act criminally and
  that he was finally ready to straighten out his life.  He told the court
  that his children would suffer if he was incarcerated for a long prison
  term and that he needed treatment for his substance abuse problem rather
  than another term of imprisonment.  At the sentencing hearing, defendant
  asked for treatment and probation, but in doing so failed to account for
  the implication of his prior repeat violations of probation, the furlough
  violations, prison disciplinary violations, repeated instances of
  possession of contraband while in jail, and his prior failures to appear.  

       ¶  12.  When considered in light of defendant's record, the court's
  statements reflect the rationale for rejecting defendant's pleas. 
  Defendant's criminal history goes back to 1988 and  includes repeated,
  successive violations of probation and furlough conditions.  Even when
  incarcerated, defendant demonstrated an inability to follow rules,
  resulting in disciplinary action against him while in prison.  Defendant
  has admitted his substance abuse problem, but he has not maintained
  sobriety even after repeated efforts to treat him.  It was appropriate for
  the court to consider those facts and defendant's long history of criminal
  behavior when fashioning the proper sentence.  At most, the court's
  comments may be said to reveal the judge's frustration with the defendant's
  recalcitrant criminality and a distaste for defendant's conduct, but the
  comments do not reveal personal bias against defendant on the part of the
  judge.
   
       ¶  13.  Moreover, the court imposed a sentence that was within
  statutory limits and was grounded explicitly on legitimate goals of
  criminal justice, namely restraint and deterrence.  See Giraldo, 822 F.2d 
  at 210 ("The proper purposes of the sentencing of criminal offenders are
  generally thought to encompass punishment, prevention, restraint,
  rehabilitation, deterrence, education, and retribution.").  The court
  explained that the sentence would incapacitate defendant from reoffending.
  The court also explained that it intended the sentence to serve as a
  deterrent to defendant and "the general criminal element out there that
  this is what's going to happen when you're convicted as a habitual
  offender."  Although the sentencing judge's criticism of defendant's
  conduct was harsh, a stinging public admonition can serve "the important
  function of deterring like conduct," and can provide the "harsh awakening"
  that a criminal defendant needs rehabilitation.  See Droge, 961 F.2d  at
  1039 (upholding sentence where district court harshly chastised defendant
  at sentencing).  We thus find no abuse of the court's discretion in
  sentencing defendant to a term of twenty to thirty years in prison for
  being a habitual offender. 

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________  
                                       Associate Justice