Hough, In re, 82-238
| Decision Date | 05 April 1983 |
| Docket Number | No. 82-238,82-238 |
| Citation | 458 A.2d 1134,143 Vt. 15 |
| Parties | In re Norman HOUGH. |
| Court | Vermont Supreme Court |
Stephen W. Gould, Defender, Correctional Facilities, Montpelier, for petitioner-appellee.
John J. Easton, Jr., Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Jesse Bugbee, Law Clerk (On the Brief), Montpelier, for respondent-appellant.
Before BILLINGS, C.J., HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.
The factual circumstances giving rise to this appeal involve a confusing series of sentences imposed on petitioner-appellee by the Rutland and Windsor District Courts, as well as a post-conviction order by the Windsor Superior Court amending those sentences. As the facts are somewhat complex and are not in dispute, a brief summary will suffice: within the space of six months, appellee was convicted of two separate felonies and two misdemeanors, and the latter two misdemeanor convictions resulted in the revocation of probation imposed on the first felony. The sequence of these sentences was later altered by stipulations and the superior court's order. The State appeals one portion of that order, claiming that it improperly denied the Windsor District Court the discretion, granted by 13 V.S.A. § 7032(a), to set the sentence for the second felony conviction consecutive to the prior split sentence and probation. Thus, the narrow issue on appeal is whether a sentencing court may impose a sentence consecutive to a prior split sentence and probation.
This Court has long since recognized the common law authority of courts to impose consecutive sentences. The leading case in this area is In re Sargood, 86 Vt. 130, 83 A. 718 (1912), holding that the statutory provision then in effect authorizing consecutive sentences was merely declaratory of the common law. Id. at 135-36, 83 A. at 721 (discussing P.S. 2362 (1906)). Section 7032(a) now governs consecutive sentences, and reads as follows:
If a person who has been sentenced to a term or terms of imprisonment is convicted of another offense punishable by imprisonment before he has been discharged from the former sentence or sentences, the court may sentence him to an additional term of imprisonment and shall specify whether this additional term shall be served concurrent with or consecutive to the prior sentence or sentences. (emphasis added).
The State argues that this statute creates three criteria which must be satisfied before the court can impose consecutive sentences, and that all three were met when appellee was sentenced by the district court on the second felony conviction. The first criterion is that the offender must already have been sentenced to a term or terms of imprisonment. Here, appellee had already received split sentences of two to five years suspended, seventy days to serve, for his first felony. The second criterion is that he must commit another crime punishable by imprisonment. Here, appellee's commission of the second felony constituted such a crime.
The third criterion imposed by the statute is that this subsequent conviction must occur before the defendant has been "discharged" from the prior sentence. In this case, the State argues, since appellee was still serving the probationary portion of his sentences for the first felony, and since the remainder of those sentences could be reimposed upon a violation of probation, appellee was not yet discharged from them. Thus, the State concludes, a person on probation is not to be deemed discharged unless the probationary period is terminated in accordance with 28 V.S.A. §§ 251 and 255 (Supp.1982). These statutes read as follows:
§ 251. Duration of probation
The court placing a person on probation may terminate the period of probation and discharge the person at any time if such termination is warranted by the conduct of the offender and the ends of justice. (emphasis added).
§ 255. Discharge
Upon the termination of the period of probation or the earlier discharge of the probationer in accordance with section 251 of this title, the probationer shall be relieved of any obligations imposed by the order of the court and shall have satisfied his sentence for the crime. (emphasis added).
While appellee agrees with the State's interpretation of the first two statutory criteria, he offers a different reading of the third requirement. In that regard he argues that the term "discharge" is met where the person is no longer "in execution" of the former sentence, and that an individual on probation pursuant to 28 V.S.A. § 205 is not "in execution" of his sentence. As support for the latter proposition, he cites the following language in Miner v. Chater, 137 Vt. 330, 335, 403 A.2d 274, 277 (1979):
[The] parole provisions [28 V.S.A. § 401, discussing "the serving of a sentence through the provisions of parole"] should be contrasted with ... 28 V.S.A. § 205 ... providing that "[a]fter passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the [Commissioner of Corrections] ... upon such conditions ... as it may prescribe ...." The status of parole and that of probation are thus fundamentally different. A parolee is in execution of his sentence while a probationer is not. (emphasis in final sentence added).
However, appellee cites no support for the first argument that the term "discharged from sentence" actually means no longer "in execution of sentence." Granting that a penal statute is to be interpreted favorably to the accused, State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981), nevertheless, " '[t]his [C]ourt by judicial interpretation may not expand the language or the plain meaning of a statute.' " Marden v. Walton, 142 Vt. 204, ---, 455 A.2d 321, 322 (1982) (quoting Maurice Callahan & Sons, Inc. v. Armstrong, 125 Vt. 213, 215, 214 A.2d 70, 73 (1965)). Section 7032(a)...
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