State v. Battick, 207-73
| Decision Date | 02 December 1975 |
| Docket Number | No. 207-73,207-73 |
| Citation | 349 A.2d 221,133 Vt. 558 |
| Parties | STATE of Vermont v. Edward M. BATTICK. |
| Court | Vermont Supreme Court |
M. Jerome Diamond, Atty. Gen., Raymond L. Betts, Jr., Asst. Atty. Gen., Montpelier, Raymond G. Bolton, Bennington County State's Atty., Bennington, for plaintiff.
Robert Edward West, Defender Gen., Robert M. Paolini, Deputy Defender Gen., Montpelier, for defendant.
Before BARNEY, C. J., SMITH, DALEY and BILLINGS, JJ., and COSTELLO, Chief District Judge, Specially Assigned.
The defendant, on December 12, 1972, was indicted for first-degree murder in connection with the homicide of Chief of Police Dana Thompson of Manchester, Vermont, which occurred while the defendant was perpetration a burglary. Trial commenced, and after witnesses for the prosecution had testified, the defendant, as a result of a plea bargain, entered a plea of guilty to first-degree murder. The trial court, pursuant to 13 V.S.A. § 2302, then held a hearing and made findings of fact determining that the defendant was guilty of murder in the first degree. The defendant was sentenced to life imprisonment. The cause is now before us as an appeal as of right pursuant to 13 V.S.A. § 7401; V.R.A.P.3.
The defendant now claims error in that he was not advised that one of the consequences of a plea of guilty is ineligibility for parole after receiving a sentence of life imprisonment. Secondly, he claims error when, in determining the degree of murder, the trial court failed to make a specific finding of malice.
28 V.S.A. § 501 speaks directly to parole eligibility in connection with all sentences:
(a) After an inmate has served the minimum term of his sentence, if any minimum has been established, less any reductions for good behavior which have been computed in accordance which section 811 of this title, he shall be released on parole by the written order of the parole board if the board determines there is a reasonable probability that the inmate can be released without detriment to the community or to himself.
(b) If no minimum term has been established, the board shall review the eligibility of an inmate for parole at such time as it may establish through the issuance of its rules and regulations.
There is no minimum term to a life sentence, but the statute covers the defendant who is sentenced to life. This interpretation is further supported by a reading of 28 V.S.A. § 506(a), which provides:
'Supervision of a parolee serving a life sentence may be terminated only after fifteen years measured from the date of first confinement.
It is clear that a defendant pleading guilty to first-degree murder is not prohibited from parole eligibility.
The sentencing judge in the instant case specifically advised the defendant that the sentence of life imprisonment was mandated and, even assuming that the defendant's contention of parole ineligibility is correct, with which we do not agree, the defendant was fully advised and had a full understanding of the consequences of his plea. In re Dussault, 128 Vt. 135, 259 A.2d 776 (1969). A plea of guilty is conclusive and binding if voluntarily made after proper advice with a full understanding of its consequences. State v. Kalis, 127 Vt. 311, 248 A.2d 721 (1968); In re Garceau, 125 Vt. 185, 212 A.2d 633 (1965). We find no error on the part of the trial court in connection with the sentencing of the defendant.
The degrees of murder in Vermont are defined as follows:
Murder committed by...
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...for first degree murder as the requisite intent to kill. See State v. Tatro, 50 Vt. 483, 492 (1878); see also State v. Battick, 133 Vt. 558, 561, 349 A.2d 221, 223 (1975). Malice for second degree murder, on the other hand, could be satisfied by evidence of “ ‘an intention to do great bodil......
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