Sherwin v. Hogan, 224-78

Decision Date15 January 1979
Docket NumberNo. 224-78,224-78
Citation401 A.2d 895,136 Vt. 606
CourtVermont Supreme Court
PartiesStoddard M. SHERWIN v. Cornelius HOGAN, Commissioner of Corrections of the State of Vermont, et al.

Welch & Graham, White River Junction, and Craig Weatherly, Law Clerk (on brief), North Pomfret, for plaintiff.

Michael J. Sheehan, Windsor County State's Atty. and William J. Donahue, Deputy State's Atty., White River Junction, for defendants State.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BARNEY, Chief Justice.

The plaintiff sought release from confinement by habeas corpus brought in superior court. Denied relief there, he brings his appeal here. He has been represented by counsel during all of these habeas corpus proceedings.

He is presently imprisoned under a sentence carrying a maximum term of one year after a conviction of simple assault. One year is the maximum permissible incarceration for that charge under the statute. 13 V.S.A. § 1023(b). When originally convicted on September 21, 1976, the sentence was suspended and he was placed on probation "until further order of court." On June 21, 1978, he was charged with violating the conditions of probation and ordered to begin serving his sentence. On that date he was confined in the Woodstock Correctional Center for that purpose. His petition for habeas corpus followed.

The authority under which he has sought release is the general habeas corpus statutes, 12 V.S.A. §§ 3952-3953, rather than the special form of habeas corpus denominated post-conviction relief, 13 V.S.A. §§ 7131-7136. Since it is the sentence that is under attack, the post-conviction relief provisions must be first resorted to. 13 V.S.A. § 7136. But here, as in Berard v. Moeykens, 132 Vt. 597, 598, 326 A.2d 166 (1974), all of the substantive requirements of 13 V.S.A. § 7136 have been met, even though resort purports to be to the general habeas corpus statute. Therefore, we will treat it as properly brought, in the interests of justice and consistent with the remedial intent of the statutes.

It is the familiar holding of our cases that it is the petitioner seeking relief who has the burden of demonstrated entitlement to remedy, whether the grounds be constitutional or some lesser error. In re Clark,127 Vt. 555, 557-58, 255 A.2d 178 (1969). Not only may the relief take a wide range, as noted in Clark, supra, including remedies short of full release, but the scope of review itself is likewise broad. In re Provencher,127 Vt. 558, 560, 255 A.2d 180 (1969). The concerns of this appeal fall within its scope.

The issue is entirely legal, and the plaintiff contends it has constitutional dimensions. The plaintiff's one allegation of error is that the imposition of sentence in his case was unsupportable because the probation involved could not properly have been continued to the time of the alleged breach of probation.

The plaintiff's attack on probation has two aspects. First, he argues that the phrase "in accordance with law" added to the former probation statute was a recognition of a need to limit the period of probation within the authority of a sentencing court to impose. The present statute, 28 V.S.A. § 205, now reads:

After 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 upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.

The short response to plaintiff's contention with respect to the legislative intent might be to say that the amended language does not compel the inference that plaintiff would have us read into it. But, to go further, a comparison of the statutes relating to probation as they were prior to the wholesale revision in No. 199 of the Public Acts of 1971 (Adj.Sess.), and afterwards, points to a quite different and most direct application of the "in accordance with the law" phrase. Prior to 1971, there were no subsisting statutes containing directions as to proper conditions of probation. After 1971, there were, contained in 28 V.S.A. § 252. It is the view of the Court that the quoted phrase was intended to bind sentencing courts to comply with that statute.

If it were as the plaintiff would have it, surely there would have been no need to leave the issue to inference and interpretation. This view is further sustained by the retention of the phrase "until further order of court."

As further support to his claim that periods of probation should be held to have finite limits, the plaintiff points to statutory patterns in other states. Some of these statutes mandate probation limits beyond the limits of allowable incarceration for the criminal charge involved. These statutes of course have little relevance in this state, since they are not our law. They do, however, cut against any argument that there is some legally inherent...

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12 cases
  • Stewart, In re
    • United States
    • Vermont Supreme Court
    • 3 Noviembre 1981
    ...(of relief), ... including remedies short of full release, (and) the scope of review itself is likewise broad." Sherwin v. Hogan, 136 Vt. 606, 608, 401 A.2d 895, 896 (1979). The expansion of habeas relief has largely occurred under the guise of modern post-conviction relief statutes, such a......
  • Coyle v. Hofmann
    • United States
    • Vermont Supreme Court
    • 29 Abril 2009
    ...habeas corpus challenging sentences as petitions for post-conviction relief (PCR) under 13 V.S.A. § 7136. See Sherwin v. Hogan, 136 Vt. 606, 607-08, 401 A.2d 895, 896-97 (1979). PCR statutes "were enacted to simplify the often cumbersome procedures associated with habeas corpus," and the sc......
  • State v. Murray, 91-390
    • United States
    • Vermont Supreme Court
    • 4 Septiembre 1992
    ...is set by the court, or where a sentence is deferred with probation "until further order of the court," as in Sherwin v. Hogan, 136 Vt. 606, 609, 401 A.2d 895, 896 (1979), it establishes a maximum period of five years. It does not, however, automatically extend every sentence deferral to fi......
  • State v. Foster, 87-084
    • United States
    • Vermont Supreme Court
    • 21 Abril 1989
    ...that the probation agreement is in writing and consent is indicated by the signature of the probationer." Sherwin v. Hogan, 136 Vt. 606, 609, 401 A.2d 895, 896-97 (1979). Thus, we have recently held that conditions of probation cannot be modified without the probationer's consent or a findi......
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