Shequin, In re, 126-72

• Decision Date: 06 February 1973
• Docket Number: No. 126-72,126-72
• Citation: 131 Vt. 111,300 A.2d 536
• Parties: In re John Edward SHEQUIN.
• Court: Vermont Supreme Court

Page 536

300 A.2d 536

131 Vt. 111

In re John Edward SHEQUIN.

No. 126-72.

Supreme Court of Vermont.

Feb. 6, 1973.

Langrock & Sperry, Middlebury, for plaintiff.

Patrick L. Leahy, State's Atty., for the State.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

SHANGRAW, Chief Justice.

On July 11, 1967, John Edward Shequin, a minor, through his guardian ad litem, entered a plea of guilty to a charge of second degree muder in the Chittenden County Court. He was initially charged with first degree murder. Mr. Shequin was sentenced on July 27, 1967, to serve not less than 35 years, nor more than 40 years, in the Vermont State Prison is Windsor, Bermont. At all times he was represented by competent counsel. His mother, Ethel Shequin Machia, was appointed and served as his guardian ad litem.

On or about January 24, 1972, defendant Shequin brought a petition for post-conviction relief to the Chittenden County Court under the provisions of 13 V.S.A. §§ 7131-7133 on the ground that his mother was incompetent to act as his guardian ad litem.

On February 8, 1972, the petition for post-conviction relief was brought on for hearing by the Chittenden County Court. A further hearing was held on March 20, 1972. During this interval the defendant filed in the above court a motion for modification of the sentence.

In support of the motion for a modification of the sentence the good behavior of the respondent was alleged, and attention called to the fact that in the 1969 Adjourned Session of the Legislature, 13 V.S.A. § 7031 was amended by Act No. 182 premitting an indeterminate sentence. The defendant requested that the minimum sentence of 35 years be struck and allow the Corrections Department to exert control over him for the remainder of the sentence up to the maximum of 40 years.

Following hearings on the petition for post-conviction relief, as well as defendant's motion for a modification of the sentence, findings of fact, conclusions, and an order issued bearing date June 14, 1972.

In denying post-conviction relief the court found, inter alia, that:

'The defendant has failed to show by the required burden of proof that his mother was incompetent to act as his guardian ad litem.'

However, the court, by its order, did amend the defendant's sentence to read:

'The defendant, John E. Shequin, is hereby sentenced to serve not less than ten years, nor more than forty years, in the State Prison at Windsor, Vermont.'

On the issue of the alleged incompetency of the mother, Ethel Shequin Machia, to act as guardian ad litem for her son, the court made the following findings:

'3. The defendant's mother was appointed guardian ad litem on February 1, 1967. During the period defendant's mother was acting as his guardian ad litem, she was being treated for psychiatric problems arising out of marital difficulties, and was receiving medication, such as tranquilizers and mood elevators. Prior to her appointment as guardian, the defendant's mother had been hospitalized due to nervous exhaustion and related problems.

4. The defendant had been indicted on a charge of first degree murder, and had discussed the facts of the case with his mother prior to entering a plea of 'guilty' to second degree murder.

5. At all times material, the defendant and his mother relied on the advise (sic) of defendant's counsel. No evidence was presented to suggest that the advise (sic) of counsel was in any way improper. Defendant's guardian was not forced to accept the advise (sic) of counsel against her own judgment.'

On July 11, 1972, counsel for the defendant presented to the court a waiver or petition to enter a plea of guilty to murder in the second degree. Prior to the acceptance of the plea the trial court very carefully and fully inquired of the defendant as to whether he was satisfied with his counsel; whether he was satisfied that all of the matters relating to a guilty plea to the offense and the maximum and minimum sentences connected therewith had been explained to him; whether he understood the nature of the penalty of be imposed by the court; whether by pleading guilty he was so doing of his own free will and without coercion; and also as to whether he ahd gone over the matter of waiver with his counsel and guardian ad litem. To the foregoing inquiries defendant unqualifidly answered in the affirmative.

The waiver or petition contained the signatures of the defendant and the guardian ad litem. Upon inquiry by the court, the guardian ad litem acknowledged that it was in accord with her wishes and understanding of the nature of the offense and consequences of a plea of guilty by her son. She also acknowledged that counsel for her son had assisted him in every way possible under the circumstances. All representations contained in the waiver were affirmed by her. The waiver was ordered filed and the court entered a plea of guilty to murder in the second degree.

From a review of the record in the case we are satisfied that the plea of guilty to second degree murder was voluntarily entered with full understanding of its consequences by the defendant as well as by his guardian ad litem. In re Lamphere, 127 Vt. 604, 606, 607, 256 A.2d 29 (1969). We find no occasion to disturb the conclusion and order of the court in its determination that the defendant had failed to show by the required burden of proof that his mother, Ethel Shequin Machia, was incompetent to act as his guardian ad litem. This result is supported by the record.

Before the court can grant post-conviction relief, it is required by statute to find '. . . that the judgment was made without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to make the judgment vulnerable to collateral attack.' If the court so determines, 'it shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.' 13 V.S.A. § 7133.

The appellant, State of Vermont, urges error on the part of the lower court in reducing the minimum sentence of the defendant. Neither party question that the sentencing court had jurisdiction to enter the judgment and that the sentence imposed was authorized by law.

Under the post-conviction statute, 13 V.S.A. § 7133, the court, following a hearing, is required to determine the issues and make findings of fact and conclusions of law with respect thereto.

As applied to the reduction of the minimum sentence, the findings are limited to the following:

'6. Since the defendant was sentenced, the laws of Vermont pertaining to sentencing have been amended, and now the courts of this State are no longer required to issue a minimum sentence in a case of this kind. The increasing use of the zero minimum sentence has greatly enhanced the effectveness of the parole process.

7. In this case the Board of Parole would recommend a zero minimum sentence if the defendant is to be considered for resentencing. Since the defendant has already served five years, the Board of Parole recommends, in the alternative, a reasonable shortened minimum.'

In concluding that defendant's minimum sentence should be reduced to not less than ten years, the court referred to the American Bar Association Standards Relating To Sentencing Alternatives and Procedures, Section 3.2(c)(ii) and (iii) Approved Draft, 1968, recommending that minimum sentences as long as ten or fifteen years should be strictly confined to life sentences, and that courts should not be authorized to impose a minimum sentence which exceeds one-third of the Maximum sentence actually imposed.

In its conclusions the court continued by stating:

'In light of these standards and the Legislative changes relating to sentencing since the defendant was sentenced by the Chittenden County Court, this Court concludes that defendant's minimum sentence should be reduced to not less than ten years.'

The recommended standards of the American Bar Association relating to shorter minimum sentences referred to in the court's 'conclusions' are without the force of law in this State and should not have influenced the court's reduction of the minimum sentence in this case.

The foregoing findings do not meet the criterion set out in 13 V.S.A. § 7133. The fact that the law of Vermont no longer requires the court to issue a minimum sentence in a case such as this does not mean that this new statute applies to a sentence imposed before this law came into effect. Moreover, the existing law still allows the court to set a minimum sentence. 13 V.S.A. § 7031. The policy towards sentencing has only changed since the defendant was sentenced.

The general rule is that a court does not have the power to modify a sentence after the term of the court has expired and execution of sentence has begun, unless the sentence was somehow invalid or improperly imposed. See 24 C.J.S. Criminal Law §§ 1589, 1590; 21 Am.Jur.2d Criminal Law § 571. The exception to this general rule, which recognized the court's...