State v. Aubuchon

• Decision Date: 24 January 2014
• Docket Number: No. 13–140.,13–140.
• Citation: 90 A.3d 914,2014 VT 12
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Brian AUBUCHON.

90 A.3d 914

2014 VT 12

STATE of Vermont

v.Brian AUBUCHON.

No. 13–140.

Supreme Court of Vermont.

Jan. 24, 2014.

Michael Kainen, Windsor County State's Attorney, White River Junction, for Plaintiff–Appellee.

William W. Cobb and Cielo M. Mendoza of Law Offices of William W. Cobb, PLC, Hyde Park, and Brian S. Aubuchon, Pro Se, Springfield, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

SKOGLUND, J.

¶ 1. Defendant appeals the superior court's denial of his request under Vermont Rule of Criminal Procedure 35 for additional credit toward his aggregated minimum sentence. We affirm.

¶ 2. The facts concerning the multiple charges filed against defendant and the subsequent sentencing are complicated, but can be summarized as follows. In Docket No. 321–7–10 Oecr (Orange Criminal Division), defendant was charged with larceny from the person and held for lack of bail beginning on July 22, 2010. On March 16, 2011, he pled guilty and was sentenced to six months to three years on that charge. Because the credit for time served exceeded the minimum sentence, he was released on furlough immediately.

¶ 3. Two months later, on May 18, 2011, defendant was charged with assault and robbery, Docket No. 542–5–11 Wrcr (Windsor Criminal Division), and escape from furlough, Docket No. 487–4–11 Wrcr. That same day, defendant was held for lack of the $250,000 bail set by the court. While awaiting trial on those charges, defendant was also charged with two counts of larceny from the person in Docket Nos. 644–6–12 Wmcr (Windham Criminal Division) and 289–3–12 Wncr (Washington Criminal Division). Bail was set on those charges as well, and defendant remained in jail. At this time, defendant was still serving his sentence, albeit on furlough, on the initial Orange larceny-from-the-person conviction.

¶ 4. On January 10, 2013, defendant pled guilty to the four later charges. He received sentences of: 0–10 years consecutive to the Washington and Windham charges for the assault-and-robbery charge; 0–5 consecutive to all charges except the assault-and-robbery charge for the escape charge; 0–10 years consecutive to all other charges for the Washington larceny-from-the-person charge; and 2–10 years consecutive to then-existing sentences, as well as the assault-and-robbery and Washington larceny-from-the-person charges, for the Windham larceny-from-the-person charge. Each of the mittimuses gave credit for time served according to the law. The Department of Corrections' ensuing sentence computation indicated an aggregate sentence of 2–38 years and awarded defendant 236 days against the aggregate maximum for time served.

¶ 5. In February 2013, defendant filed a grievance with the Department of Corrections, asserting that its sentence computation was incorrect and that he was entitled to more credit than given. The Department responded that defendant was not given credit against his aggregate minimum because the sentences for the second set of charges were imposed consecutively to the original sentence. Defendant then moved for sentence reduction under Vermont Rule of Criminal Procedure 35, asking the superior court to correct the aggregate minimum and maximum to indicate 30 months to 33 years, and further to instruct the Department to credit him for the 604 days he spent in jail between his arraignment on the second set of charges and his sentencing on those charges.

¶ 6. On a motion-reaction form, the court: (1) granted the motion in part by ordering that the mittimuses in Docket Nos. 542–5–11 Wrcr (assault and robbery) and 487–4–11 Wrcr (escape) reflect that the sentences for those two charges were to be imposed concurrently; and (2) denied the motion in part by refusing to give defendant additional credit toward the minimum aggregate sentence. The Department's revised sentence computation did not apply the additional credit requested by defendant. This appeal followed.

¶ 7. Defendant argues on appeal that: (1) his sentences were not correctly aggregated; (2) he is entitled to additional credit under a recent legislative enactment, which should apply to his case because it clarified rather than amended the sentencing law existing at the time of his sentencing; and (3) even under the prior existing law, he is entitled to the additional credit because his furlough status on his first sentence was never revoked following his arrest and incarceration on the second set of charges and he was held solely for lack of bail on those charges. The State responds that: (1) defendant waived any argument that the new legislative enactment applies to this case by not raising it before the superior court; (2) the newly enacted legislation was an amendment rather than a clarification and thus does not govern this case; (3) defendant is not entitled to credit under the law applicable at the time of his sentencing; and (4) under the procedural posture of this case, defendant should have filed a motion under Vermont Rule of Civil Procedure 75 rather than criminal Rule 35 to challenge the Department's recalculation of his sentence.

¶ 8. As an initial matter, we reject the State's procedural arguments. Regarding the latter argument, the State relies upon State v. Young, 2007 VT 30, 181 Vt. 603, 925 A.2d 1016 (mem.), to support its argument that defendant pursued the wrong avenue of relief in this appeal. In Young, the trial court revoked the defendant's probation and imposed the underlying sentence with “credit for time served according to law.” Id. ¶ 3. Noting that the trial court was not required to calculate credit for time served and that in general the Department of Corrections was better suited to do so, we dismissed the defendant's challenge of his sentence under Rule 35. Id. ¶¶ 4–5. We ruled that he should have grieved the Department's calculation of credit and then, if necessary, appealed the Department's response to his grievance to the superior court under Vermont Rule of Civil Procedure 75. Id. ¶ 5.

¶ 9. We also noted in Young, however, that in some cases the trial court is in a better position than the Department to calculate credit for time served, “as when the calculation depends on legal determinations the [Department] is less equipped to make.” Id. ¶ 4 n. *. In this case, defendant grieved the initial calculation of credit with the Department, but, when that grievance was denied, filed a Rule 35 motion with the superior court and then appealed to this Court from the superior court's ruling on that motion. This was a proper procedural avenue for addressing his legal claim regarding the calculation of credit. See State v. Sommer, 2011 VT 59, ¶ 8, 190 Vt. 236, 27 A.3d 1059 (discussing Young and clarifying that one option for challenging calculation of credit is under Rule 35 “to determine whether the sentence is illegal under 13 V.S.A. § 7031(b) because it fails to give defendant credit for days spent in custody in connection with the crime(s) for which defendant is sentenced”). Although the amended mittimus following the court's denial of defendant's Rule 35 motion instructed the Department to apply credit for time served “according to [the] law,” the court had already denied in part defendant's Rule 35 motion, making the legal determination that defendant was not entitled to the additional credit toward his aggregate minimum sentence that he requested.

¶ 10. We also reject the State's assertion that we should not consider whether the newly enacted legislation regarding credit for time served governs this case because defendant did not raise this argument below and the trial court never considered it. The short answer to the State's assertion is that defendant could not have raised the issue of whether the new legislation should be applied retroactively because that legislation was not enacted into law and made effective until after the filing of the instant appeal. Accordingly, we will address the issue of the effect, if any, of the new legislation on this case.

¶ 11. Defendant argues that the “central issue” in this case is whether the new legislation, 2013, No. 4, is applicable to this case. Relying primarily on State v. Kenvin, 2011 VT 123, 191 Vt. 30, 38 A.3d 26, and a summary statement of Act 4 provided by the Office of Legislative Counsel, defendant argues that the relevant part of the act merely clarified the preexisting statute and thus is applicable to this case. We find no merit to this argument.

¶ 12. Defendant was sentenced on all pending charges on January 10, 2013. The relevant statute—13 V.S.A. § 7031(b)—was amended effective April 3, 2013. See 2013, No. 4, § 1. As we recently held in another case involving § 7031(b), because the statute “was amended after defendant was sentenced on all pending charges and, in any case, ‘neither defines an offense nor prescribes a punishment,’ State v. Blondin, 164 Vt. 55, 57 n. 1, 665 A.2d 587, 589 n. 1 (1995), the earlier version of the statute ... governs this case.” ¹State v. LeClair, 2013 VT 114, ¶ 6 n. *, 195 Vt. ––––, 88 A.3d 1186; see 1 V.S.A. § 214(c) (“If the penalty or punishment for any offense is reduced by the amendment of an act or statutory provision, the same shall be imposed in accordance with the act or provision as amended unless imposed prior to the date of the amendment.”); State v. Barron, 2011 VT 2, ¶ 38, 189 Vt. 193, 16 A.3d 620 (stating that § 214(c) applies “only if the sentence is not imposed ‘prior to the date of the amendment’ ” (quoting § 214(c))).

¶ 13. Defendant argues, however, that because the Legislature intended the current version of § 7031(b) to clarify rather than amend the meaning of the earlier version of the statute, the meaning attributable to the new version governs this case. In so arguing, defendant relies primarily upon Kenvin, wherein we concluded that a 2011 legislative revision to § 7031(a) was a clarification of that provision retroactively applicable to the case at issue. 2011 VT 123, ¶¶ 23–26...