State v. Stearns

288 A.3d 173

STATE of Vermont

v.Dean Jeffrey STEARNS

No. 22-AP-022

Supreme Court of Vermont.

September Term, 2022

October 28, 2022

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

EATON, J.

¶ 1. Defendant Dean Jeffrey Stearns appeals the trial court's denial of his motion for sentence reconsideration. We affirm.

¶ 2. This case has been on appeal here twice previously. In December 2018, defendant pleaded guilty to five counts of voyeurism and two counts of promoting a recording of sexual conduct. See 13 V.S.A. §§ 2605, 2824. In January 2020, he was sentenced to an aggregate term of ten to fifteen years’ imprisonment, suspended except five years to serve. Defendant appealed in February 2020, but later filed a motion to dismiss the appeal, which this Court granted in August 2020.

¶ 3. Defendant then moved for sentence reconsideration in the trial court under 13 V.S.A. § 7042(a) and Vermont Rule of Criminal Procedure 35(b). The court initially dismissed the motion as untimely, and defendant challenged that decision on appeal. We reversed and remanded for the trial court to consider the motion on its merits. State v. Stearns, 2021 VT 48, ¶ 14, 215 Vt. 133 260 A.3d 368.

¶ 4. The trial court held a hearing on remand in January 2022. The motion sought sentence reconsideration based on the restrictive conditions imposed in defendant's correctional facility because of the COVID-19 pandemic. The court denied the motion on the record. It noted that the sentence imposed was within the range agreed to by the parties in their sentencing agreement. The court stated that it had established the sentence with "full consideration of the unique facts and circumstances" of defendant's conduct, which involved an extreme abuse of a position of trust and victimized young girls. The court did not reach the question of whether and to what extent COVID-19 existed and was understood at the time of sentencing, but it concluded that in light of the evidence defendant had presented, there was no basis to reduce his sentence. Although the court found that defendant had experienced far more restrictive conditions in his incarceration due to the pandemic, it noted that these restrictions mirrored the significant restrictions that had become part of everyone's daily lives since March of 2020. Beginning at that time, everyone had been forced to live with issues of isolation as well as limitations on access to family, activities, and services including medical care. The court found that defendant had been vaccinated and boosted against COVID-19, was receiving all required medical care, and had not suffered any personal ailments or injuries because of the pandemic or the conditions within the correctional facility. It concluded that defendant had not presented any evidence to establish circumstances unique to his incarceration that warranted special consideration. In denying defendant's motion, the court explained that its decision did not preclude defendant from seeking habeas corpus or other relief as may be appropriate.

¶ 5. On appeal, defendant challenges the trial court's ruling for three reasons. He argues that the trial court abused its discretion by: failing to apply individualized sentencing factors, not considering how changes to incarceration conditions during the pandemic adversely affected the ability to achieve sentencing goals, and upholding a sentence that had been effectively increased due to pandemic-era restrictions. The State contends, among other things, that defendant's motion for sentence reconsideration was properly denied because sentence reconsideration does not include review of post-incarceration matters and defendant sought relief based on post-incarceration circumstances. We agree with the State and affirm primarily on that basis. See State v. Lafountain, 160 Vt. 313, 316, 628 A.2d 1243, 1245 (1993) (explaining that this Court is not bound by reasoning of trial court and may affirm on different legal grounds).

¶ 6. "We review the denial of the motion for sentence reconsideration for abuse of discretion." State v. King, 2007 VT 124, ¶ 6, 183 Vt. 539, 944 A.2d 224 (mem.). Section 7042 of Title 13 provides broadly that "[a]ny court imposing a sentence ... may upon its own initiative or motion of the defendant, reduce the sentence." 13 V.S.A. § 7042(a). Criminal Rule 35, which implements § 7042(a), contains virtually identical language. See V.R.Cr.P. 35(b) ("The court, on its own initiative or on motion of the defendant, may reduce a sentence ...."). We have interpreted this statutory provision to give the trial court broad discretion to determine which factors to consider during sentence reconsideration. State v. Dean, 148 Vt. 510, 513, 536 A.2d 909, 912 (1987), abrogated on other grounds by Betterman v. Montana, 578 U.S. 437, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016). However, "[i]t is well established that sentence reconsideration pursuant to 13 V.S.A. § 7042 is not intended to address post-incarceration matters." State v. Sodaro, 2005 VT 67, ¶ 9, 178 Vt. 602, 878 A.2d 301 (mem.) (citing State v. LaPine, 148 Vt. 14, 15, 527 A.2d 1150, 1150 (1987) (per curiam)); see also King, 2007 VT 124, ¶ 6, 944 A.2d 224 ("[Sentence reconsideration] is not intended as a forum to review post-incarceration circumstances or events."). Instead, "the statute's purpose is to give the [superior] court an opportunity to consider anew ‘the circumstances and factors present at the time of the original sentencing.’ " Sodaro, 2005 VT 67, ¶ 9, 878 A.2d 301 (quoting LaPine, 148 Vt. at 15, 527 A.2d at 1150 ). We have repeatedly reaffirmed this principle. See State v. Roy, 154 Vt. 645, 645, 573 A.2d 698, 698 (1990) (mem.) (declining to overrule LaPine’s holding regarding scope of sentence reconsideration); State v. Richardson, 161 Vt. 613, 613, 640 A.2d 24, 25 (1994) (mem.) (same).

¶ 7. For the first time in his reply brief, defendant raises several arguments that sentencing reconsideration includes post-incarceration circumstances. Generally we do not consider arguments raised for the first time in a reply brief, but in any event, we are not persuaded by their merits. Defendant first contends that the plain language of 13 V.S.A. § 7042(a) and Criminal Rule 35(b) —providing that a court "may reduce a sentence"—does not limit the basis for a court to grant sentence reduction. However, this plain language also does not expressly allow for consideration of post-incarceration facts, leaving ambiguity as to its scope. While "[w]e look first to the plain language of the statute, ... if this is insufficient to determine legislative intent, we consider the broad subject matter of the statute, its effects and consequences, and the purpose and spirit of the law." Severson v. City of Burlington, 2019 VT 41, ¶ 11, 210 Vt. 365, 215 A.3d 102 (quotation omitted). As we explained in LaPine :

The purpose of reconsideration under § 7042 "is to permit the trial judge to reconsider the sentencing decision absent the heat of trial pressures and in calm reflection ...." State v. Therrien, 140 Vt. 625, 627, 442 A.2d 1299, 1301 (1982). Implicit in Therrien and the statute itself is the assumption that under consideration will be the circumstances and factors present at the time of the original sentencing, rather than [the] defendant's conduct and behavior since sentencing.

148 Vt. at 14-15, 527 A.2d at 1150.

¶ 8. This conclusion is bolstered by our decision in State v. Martinsen, 156 Vt. 643, 590 A.2d 885 (1991) (mem.). In Martinsen, the defendant argued that his sentence turned out to be longer than anticipated by the sentencing judge and therefore it should be reduced. We rejected this contention, explaining that "[t]he actual length of [the] defendant's incarceration was dependent in part on how the corrections department exercised its discretion in classifying him and placing him in rehabilitative programming," and that these decisions were within the discretion of the Department of Corrections (DOC), not the sentencing judge. Id. at 644, 590 A.2d at 886. We affirmed because sentencing reconsideration "is an inquiry into the understanding of the sentencing judge at the time of sentencing" and the "defendant failed to show that the sentencing judge acted under a mistake as to the effect of the sentence upon [the] defendant's incarceration." Id. at 643-44, 590 A.2d at 886 ; see also State v. Passino, 168 Vt. 634, 635, 725 A.2d 300, 301 (1998) (mem.) (explaining that trial judge's recommendations regarding conditions of confinement at sentencing were "not, strictly speaking, part of defendant's sentence" because "an inmate's particular right or status within an institution is a matter within the broad discretion of prison authorities" (quotation omitted)). Likewise, the restrictive conditions in defendant's correctional facility were not within the sentencing judge's knowledge or control in this case, and thus were not appropriate considerations on defendant's § 7042(a) motion.

¶ 9. Defendant next contends that Criminal Rule 35(b), independent of 13 V.S.A. § 7042, allows for consideration of post-incarceration matters. Defendant cites the Reporter's Notes from 1981, which state that Criminal Rule 35(b) tracks the language of § 7042 and includes additional language from Federal Rule of Criminal Procedure 35. Reporter's Notes, V.R.Cr.P. 35. The Reporter's Notes state further that as of 1981, Vermont's sentence-reconsideration statute had not yet been authoritatively construed, so the scope of the authorization was not fully known, but Federal Rule 35 had been interpreted as authorizing a request for leniency. Id. (citing United States v. Ellenbogen, 390 F.2d 537 (2d Cir. 1968) ). Following the publication of these Reporter's Notes, we definitively construed the scope of § 7042, see La...