State Of Vt. v. Pellerin

• Decision Date: 26 March 2010
• Docket Number: No. 10-082.,10-082.
• Citation: 2010 VT 26,996 A.2d 204
• Parties: STATE of Vermontv.Thomas Y. PELLERIN
• Court: Vermont Supreme Court

996 A.2d 204

2010 VT 26

STATE of Vermontv.Thomas Y. PELLERIN

No. 10-082.

Supreme Court of Vermont.

March 26, 2010.

Robert L. Sand, Windsor County State's Attorney, White River Junction, for Plaintiff-Appellee.

Matthew T. Birmingham, III of Birmingham & Moore, P.C., Ludlow, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. REIBER, C.J.

Defendant appeals the district court's January 5, 2010 decision to hold him without bail pursuant to 13 V.S.A. § 7553, which states that a person “charged with an offense punishable by life imprisonment when the evidence of guilt is great may be held without bail.” Defendant argues that § 7553 is inapplicable here because the charges brought against him are not in themselves punishable by life imprisonment. The State argues that, because defendant was given notice of the possibility of life imprisonment under Vermont's habitual offender statute, 13 V.S.A. § 11, defendant faces charges punishable by life imprisonment. We affirm.

I.

¶ 2. In this proceeding, the State has brought five criminal charges against defendant: (1) false personation; (2) lewd and lascivious conduct; (3) contributing to the delinquency of a minor; (4) dispensing regulated drugs to a minor; and (5) furnishing alcohol to a minor. Charges (1), (2), and (4) are felonies. Felony false impersonation on its own carries a maximum sentence of ten years. 13 V.S.A. § 2001. Felony lewd and lascivious conduct on its own carries a maximum sentence of five years. 13 V.S.A. § 2601. Felony dispensation of regulated drugs to a minor on its own carries a maximum sentence of five years. 18 V.S.A. § 4237(a). These offenses by themselves do not carry the risk of life imprisonment. Here, however, it is undisputed that defendant has at least three prior felony convictions, including sexual assault, lewd and lascivious conduct with a minor, and attempted statutory rape. As a result, under Vermont's habitual offender statute, defendant faces the possibility of life imprisonment if he is convicted of any of the three felonies with which he is currently charged. See 13 V.S.A. § 11 (“A person who, after having been three times convicted within this state of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which, if committed within this state, would be felonious, commits a felony other than murder within this state, may be sentenced upon conviction of such fourth or subsequent offense to imprisonment up to and including life.”). Thus, as the trial court correctly summarized, “[a]lthough none of the offenses [defendant] is currently charged with are, by themselves, punishable by life imprisonment, because of his number of prior felony convictions, 13 V.S.A. § 11 is applicable and any one of the felony charges against him does implicate the prospect of life imprisonment.”

¶ 3. The trial court therefore held that, given the applicability of the habitual offender statute, defendant faced several charges punishable by life imprisonment, triggering an analysis under 13 V.S.A. § 7553, rather than the traditional analysis under § 7554. Defendant challenges the trial court's invocation of § 7553, and defendant correctly notes that an analysis under § 7553 is more likely to lead to the denial of bail than an analysis under § 7554. See State v. Blackmer, 160 Vt. 451, 458, 631 A.2d 1134, 1139 (1993) (holding that in § 7553 cases where the evidence of guilt is great “the constitutional right [to bail] does not apply, [and] the presumption is switched so that the norm is incarceration and not release”). Thus, had the trial court erred in analyzing this case under § 7553, we would remand this case for an analysis under § 7554. We conclude, however, that the trial court was correct in its decision to analyze this case under § 7553.

¶ 4. Although various three-justice bail appeal panels of this Court have previously assumed that 13 V.S.A. § 7553 applies to habitual offenders facing the potential for life imprisonment under 13 V.S.A. § 11, see State v. Hardy, 2008 VT 119, ¶ 6, 184 Vt. 618, 965 A.2d 478 (mem.); State v. Gardner, 167 Vt. 600, 600, 709 A.2d 499, 500 (1998) (mem.), we have never squarely addressed this issue. Thus, in this bail appeal, after a three-justice hearing, we rescheduled the case for consideration by the full Court. Both parties subsequently submitted briefs, and a full Court hearing was held on whether § 7553 applies to defendant in light of the potential for life imprisonment under 13 V.S.A. § 11.

¶ 5. In interpreting statutes, “our goal is to give effect to the intent of the Legislature.” State v. O'Dell, 2007 VT 34, ¶ 7, 181 Vt. 475, 924 A.2d 87 (quotation omitted). Because the relevant statutory language of § 7553 directly tracks the language from Proposal H, an amendment to Chapter II, § 40 of the Vermont Constitution (the 1982 amendment), “we look primarily to the intent of the voters in adopting the amendment, but we also consider the intent of the Legislature in adopting” the statutory counterpart. State v. Madison, 163 Vt. 360, 368, 658 A.2d 536, 541 (1995). ¹

¶ 6. The Legislature's adoption of § 7553 in 1987 was necessary to give full effect to the 1982 amendment that allowed courts to deny bail for persons facing life imprisonment when the evidence of guilt was great. Before 1982, Chapter II, § 40 created a general presumption that all prisoners were bailable, and the only exception was for those charged with a capital offense. The 1982 amendment changed this by stating that those charged with offenses punishable by life imprisonment could also be held without bail. Then, in 1985, this Court held that the 1982 amendment was not self-executing and that a statutory change was therefore necessary before courts could deny bail under the new constitutional amendment. See State v. Lambert, 145 Vt. 315, 487 A.2d 172 (1985). In Lambert, a trial court applied the recently adopted constitutional amendment to a defendant charged with second-degree murder. Finding that the defendant faced a maximum penalty of life imprisonment, and that the evidence of guilt was great, the court denied bail. We reversed and remanded because the trial court had based its ruling solely on the constitutional amendment and had ignored the statutory scheme that still applied to bail appeals. Lambert, 145 Vt. at 317-18, 487 A.2d at 173. As a result, on remand the trial court was forced to undergo a § 7554 analysis, which at that time presumed that all defendants were bailable unless charged with an offense punishable by death. The adoption of § 7553 fixed this situation by giving trial courts the ability to undergo the analysis envisioned by the amended Chapter II, § 40 of the Vermont Constitution, which explicitly allowed courts to deny bail when an offense was punishable by life imprisonment and the evidence of guilt was great.

¶ 7. Whether looking at a constitutional or a statutory provision, our interpretation begins with the plain language of that provision. See, e.g. O'Dell, 2007 VT 34, ¶ 7, 181 Vt. 475, 924 A.2d 87. If “the plain language is clear and unambiguous,” we will enforce it “according to its terms.” Id. Here, the relevant plain language of § 7553 is that it applies when someone is “charged with an offense punishable by life imprisonment.” Quite simply, defendant here is charged with three felonies, each of which-for this defendant-is “an offense punishable by life imprisonment” under Vermont's habitual offender statute. We find no merit in defendant's arguments to the contrary. Defendant contends that § 7553 is inapplicable here because he was never “charged” under Vermont's habitual offender statute, but was merely given notice of the State's intent to invoke it. Similarly, the dissent claims that the “obvious distinction between a charge and a notice infuses, at the very least, a degree of ambiguity into the statutory scheme,” and therefore calls for application of the rule of lenity in favor of defendant. Post, ¶ 21. We disagree.

¶ 8. Section 7553, like the 1982 constitutional amendment that preceded it, unambiguously refers to all “offense[s] punishable by life imprisonment,” and defendant, as a habitual offender, is charged with several such offenses here. Defendant asks this Court to interpret § 7553 as if the statute read “an offense in itself punishable by life imprisonment.” The statute does not say that. While it is true that defendant was not charged under the habitual offender statute-a statute that acts as a sentencing enhancement, not as a separate criminal violation-this does not change the fact that defendant was charged with several felonies that, for him, are punishable by life imprisonment. The plain language of § 7553 unambiguously applies to defendant, and the rule of lenity is therefore inapplicable. See, e.g. United States v. Mincoff, 574 F.3d 1186, 1201-02 (9th Cir.2009) (“[T]he rule of lenity does not apply because the statute is not ambiguous.”).

¶ 9. In addition to the plain language of the 1982 amendment and § 7553, we find several other indicators that the voters who adopted the 1982 amendment and the Legislature that passed § 7553 intended those provisions to apply to defendants facing the possibility of life imprisonment as habitual offenders. First, at the time the voters adopted the 1982 amendment, which set forth the language that was later placed in § 7553, the habitual offender statute had already been law for many decades. Compare 1927, No. 128 (codified as amended at 13 V.S.A. § 11) with Art. Amend. 49 (1982). Thus, the Legislature and the voters who adopted the 1982 amendment were presumably aware that § 7553 would apply to defendants facing life imprisonment as habitual offenders.² Second, the Legislature is well aware that the general sentencing enhancement codified in the habitual offender statute has broad applicability, and the Legislature has demonstrated that it knows how to...