State v. Allen, 83-485

• Decision Date: 04 February 1985
• Docket Number: No. 83-485,83-485
• Citation: 488 A.2d 775,145 Vt. 393
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Robert ALLEN.

Page 775

488 A.2d 775

145 Vt. 393

STATE of Vermont v. Robert ALLEN.

No. 83-485.

Supreme Court of Vermont.

Feb. 4, 1985.

Philip H. White, Orleans County State's Atty., Newport, for plaintiff-appellee.

Jean A. Swantko, Public Defender, St. Johnsbury, for defendant-appellant.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and KEYSER, J. (Ret.), Specially Assigned.

GIBSON, Justice.

As part of a plea agreement disposing of numerous criminal charges resulting from a series of break-ins allegedly committed by defendant while on probation, defendant pleaded nolo contendere to breaking and entering, second-degree arson and attempted arson. He also pleaded guilty to seven counts of unlawful trespass and one count of unlawful mischief, most of these having been reduced from burglary charges. In return, the state's attorney agreed to recommend a sentence of three to fifteen years, to be served concurrently with the probation violation.

The court imposed on defendant consecutive sentences that exceeded the State's recommendation: one to two years on the probation violation, one to five years on the second-degree arson, sixteen months to two years on the attempted arson, and sixteen months to ten years on the burglary, for a total sentence of four years eight months to nineteen years. Considering time already served on the consecutive sentences, the effect was a sentence of from four to nineteen years. Defendant understood that the court could impose a penalty more severe than that recommended by the state's attorney, and he expressly waived his right to withdraw his plea in such event.

Defendant thereafter filed a timely motion for reduction of sentence, pursuant to 13 V.S.A. § 7042(a) (Supp.1984), which provides:

Any court imposing a sentence under the authority of this title, within 90 days of the imposition of that sentence ... may upon its own initiative or motion of the defendant, reduce the sentence.

In defendant's motion, his reasons for reconsideration were stated to be: his age (18 when the crimes were committed); the fact that the sentence imposed would leave him on probation until he was 38; ^* his background of 15 years in custody of the Vermont Department of Social and Rehabilitation Services; the positive effects of a recent reunion with his natural family; and his post-sentence behavior and desire to change.

The sentencing judge denied appellant's motion without a hearing "pursuant to court's discretion under rule 47(b)(2) V.R.Cr.P." In explanation, the judge wrote, "matters raised in defendant's motion for reconsideration of sentence have already been considered at length at previous hearing prior to imposition of sentence."

Defendant appeals, arguing first that, under 13 V.S.A. § 7042, the judge has no discretion to refuse to hold a hearing, and second, that, even if the judge does have discretion, in this case he should have held a hearing to address factual issues raised in defendant's motion. He notes specifically an erroneous assertion made at a co-defendant's resentencing, several months after defendant's motion had been denied, regarding which of the two was older, and he also observes that defendant's post-sentence improvement could not of course "have already been considered." We affirm the decision below.

Vermont Rule of Criminal Procedure 47(b)(2) states:

Unless otherwise required by these rules, oral argument shall be deemed waived unless requested by an interested party or required by the court. In any case, the court may dispose of the motion without argument.

The purpose of this provision is "to speed up motion practice by eliminating frivolous or unnecessary motions and limiting occasions for full hearing." Reporter's Notes to V.R.Cr.P. 47. The Reporter's Notes add, "[i]f the papers indicate a real dispute for one or more relevant facts, the court must hold an evidentiary hearing to dispose of the motion. Given the nature of criminal motion practice, it would be inappropriate to give broad discretion to deny a hearing. Of course, the court can still refuse to grant a hearing where evidence is unnecessary to the disposition of the motion." ...