Meunier, In re

• Decision Date: 01 March 1985
• Docket Number: No. 83-282,83-282
• Citation: 145 Vt. 414,491 A.2d 1019
• Court: Vermont Supreme Court
• Parties: In re David C. MEUNIER.

Page 1019

491 A.2d 1019

145 Vt. 414

In re David C. MEUNIER.

No. 83-282.

Supreme Court of Vermont.

March 1, 1985.

Andrew B. Crane, Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for petitioner-appellant.

Gordon G. Gebauer, Chittenden County Deputy State's Atty., Burlington, for respondent-appellee.

Before ALLEN, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

ALLEN, Chief Justice.

David Meunier, the petitioner, appeals the denial of his petition for post-conviction relief. He contends that three errors occurred in the course of his sentencing following a plea of guilty to sexual assault: first, that the sentencing court erred in permitting the victim to testify; second, that the prosecutor presented information concerning other criminal activity of the petitioner at the sentencing hearing, in violation of the rule laid down in State v. Williams, 137 Vt. 360, 406 A.2d 375 (1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 740, 62 L.Ed.2d 736 (1980); and third, that the prosecutor failed to keep a promise made as part of the plea bargain.

The petitioner, age fifteen at the time, pleaded guilty to a sexual assault upon a neighbor, pursuant to a plea agreement in which the State agreed to dismiss a charge of aggravated assault. The State agreed further that it would "[r]emain silent concerning specific sentence; State may comment on facts."

During the sentencing hearing, held on May 19, 1982, the State called the victim of the assault to testify, over the petitioner's objection. The prosecutor elicited details of the offense and the effect that it had upon the victim. The petitioner called his mother to testify. During cross-examination of the petitioner's mother, the prosecutor asked her if she was aware that the petitioner had been accused of a rape committed during his stay at Waterbury State Hospital subsequent to his arrest on the current charge. After the petitioner's objection, the court noted that it could not consider any such allegations in the enhancement of the sentence or for any other purpose. The court permitted the prosecutor to ask the question, and to ask if her awareness of the accusation had changed her feelings towards her son, for the purpose of showing the witness's knowledge of the petitioner's character.

During the prosecutor's closing remarks at the sentencing hearing, he stated that the court "should seriously consider giving a lengthy sentence." He went on to say:

It's just a question of time as to when Mr. Meunier is going to be coming back. If the court gives a short sentence, he'll be back in a shorter period of time. If the court gives a long sentence, he'll be back in a longer period of time .... He's going to be raping again. So we'd ask for a long sentence only for that, to delay the time before he's going to strike again because we feel that he's going to strike again; and he's either going to be striking again in five years, or ten years, or fifteen years, depending on what the court gives him for a sentence; but when he gets back he'll be back in.

The court sentenced the petitioner to imprisonment for a term of fifteen to twenty years. During the hearing on the petitioner's motion to reconsider sentence, the prosecutor argued that the sentence that had been imposed "was entirely appropriate." The petitioner's motion to reconsider sentence was denied. He then petitioned the Chittenden Superior Court for post-conviction relief, which also was denied. He now appeals from that denial.

I.

The petitioner argues first that it was error to permit the victim to testify at the sentencing hearing, because 28 V.S.A. § 204(e), requiring the inclusion of the victim's statement in the presentence report, if the victim so chooses, excluded by implication any other form of participation by the victim in the sentencing process. (13 V.S.A. § 7006, giving victims the right to testify at sentencing proceedings, had not been enacted at the time of the petitioner's sentencing.)

The statute relied upon by the petitioner, 28 V.S.A. § 204(e), cannot be read as having set forth the exclusive manner of victim participation in sentencing proceedings. The statute gives an absolute right to the victim to submit comments or a written statement for inclusion in the presentence report. The granting of this right does not imply the prohibition of any other manner of victim participation in sentencing. Thus, while the victim may not have had a right to testify at the hearing prior to the enactment of 13 V.S.A. § 7006, neither was there a prohibition against such testimony.

The court below correctly found that the victim's testimony was permissible under V.R.Cr.P. 32(a)(1), permitting the prosecutor to "present any information relevant to sentencing," and under V.R.Cr.P. 32(c)(4), permitting either party to "offer evidence specifically on any disputed factual issues."

The petitioner argues that Rule 32(c)(4) does not apply because he conceded the accuracy of the presentence report, and thus the details of the assault testified to by the victim were not "disputed factual issues." The petitioner's counsel, at the sentencing hearing, stated that there was "only one significant factual matter that we would dispute" in the report (concerning the petitioner's consumption of alcohol at home). The presentence report, however, contained two different accounts of the assault, one provided by the petitioner and the other by the victim. The petitioner's counsel's remarks cannot be understood to concede the accuracy of the victim's account as against the petitioner's account. The fact that the accuracy of the report itself is conceded does not mean that differing accounts contained therein are no longer disputed issues. The petitioner and the victim differed on such significant issues as the seriousness of the injuries inflicted and the nature of the initiation of sexual activity. The victim's testimony was properly permitted under Rule 32(c)(4).

The testimony was also permissible under Rule 32(a)(1), which permits the prosecutor to present "any information relevant to sentencing," without the Rule 32(c)(4) requirement of disputed factual issues (subject to the constraints in State v. Williams and State v. Chambers, 144 Vt. 377, 383-84, 477 A.2d 974, 979 (1984)). See V.R.Cr.P. 32(a)(1) and (c)(4), Reporter's Notes to 1980 and 1982 amendments.

II.

The petitioner next argues that the prosecutor intentionally and flagrantly violated the rule set out in State v. Williams, prohibiting the use of mere assertions of criminal conduct, not supported by convictions, in sentencing proceedings. The sentencing judge's statement that he would not consider the assertion in setting the sentence normally would bar relief under this Court's ruling in State v. Rathburn, 140 Vt. 382, 388, 442 A.2d 452, 455 (1981). In that case, we held that such allegations must be presumed not to have influenced the sentencing where the sentencing judge indicates his awareness that the activities have not been prosecuted. The petitioner, however, asserts that the holding in Rathburn should not apply where the prosecutor intentionally and flagrantly violates the Williams rule. In such a case, he argues, a new sentencing hearing should be granted in order to avoid countenancing such an intentional violation of well-established legal rules.

The transcript of the sentencing hearing shows that the question at issue here was asked of the petitioner's mother after she had testified during direct examination that the petitioner had made progress since his original juvenile violation, and was no longer attempting to lie about or deny his conduct. The sentencing court permitted the question, while stating that it would not consider the matter for any purpose whatsoever. The superior court correctly found that the cross-examination was improper. However, we need not reach the question of whether a flagrant and intentional violation of the Williams rule might require resentencing even where the judge has disavowed any use of the material, because the circumstances here do not indicate such a violation.

III.

The petitioner's final claim is that the State violated its plea bargain with him. The agreement provided that the State would "[r]emain silent concerning specific sentence; State may comment on facts." The petitioner claims that the State's argument at both the sentencing hearing and the sentence reconsideration hearing, the State's use of the testimony of the victim, and the State's cross-examination of the petitioner's mother violated that agreement.

No objection was made by the petitioner's counsel to the prosecutor's remarks at either the sentencing or the sentence reconsideration hearing. Normally, a failure to object would preclude review by this Court. State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145 (1969). However, a plea of guilty involves the waiver of several constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. Therefore, the plea must be both knowing and voluntary. State v. Bergerson, 144 Vt. 200, 203, 475 A.2d 1071, 1074 (1984). An unfulfilled prosecutor's promise, which induces a guilty plea, may deprive the plea of its voluntary character. Santobello v. New York, 404 U.S. 257, 266, 92 S.Ct. 495, 501, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring). Thus, a broken promise "strikes at the very heart" of the defendant's most basic constitutional rights. State v. Bergerson, supra, 144 Vt. at 203, 475 A.2d at 1074. We have previously held that a trial court's failure to permit the withdrawal of a guilty plea where the court declines to accept the plea bargain is plain error, reviewable without an objection, in order to ensure the voluntariness of the plea. Id. at 204, 475 A.2d at 1074. The necessity of ensuring the voluntariness of the plea is no less important where it is the prosecutor's failure to abide by the...