State v. DeRosa

• Decision Date: 08 October 1993
• Docket Number: No. 92-306,92-306
• Citation: 633 A.2d 277,161 Vt. 78
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Robin J. DeROSA.

Page 277

633 A.2d 277

161 Vt. 78

STATE of Vermont v. Robin J. DeROSA.

No. 92-306.

Supreme Court of Vermont.

Oct. 8, 1993.

Jonathan Cohen, Bennington County Deputy State's Atty., Bennington, for plaintiff-appellee.

E.M. Allen, Defender Gen., and William A. Nelson, Appellate Atty., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Defendant Robin DeRosa appeals the trial court's denial of her motion to correct a sentence imposed by the Bennington District Court in April 1991. Defendant, a needy person, claims that the imposition of a sentence of imprisonment, suspended, and probation, after she was denied assistance of counsel, violated her rights under the Sixth and Fourteenth Amendments to the United States Constitution, Chapter I, Article 10 of the Vermont Constitution, and the Vermont Public Defender Act, 13 V.S.A. §§ 5201-5277. We reverse and remand.

Defendant was arraigned on an information charging her with driving under the influence of intoxicating liquor (DUI), first offense. 23 V.S.A. § 1201(a)(2). At the time, this offense was punishable by a fine of up to $750, imprisonment up to one year, or both. ¹ 23 V.S.A. § 1210(b) (1991). At the arraignment, the trial court found defendant to be a needy person, but denied her counsel on the ground that the court would not sentence her to a period of imprisonment or a fine of over $1,000. Subsequently, defendant waived counsel on the record ² and entered a plea of nolo contendere. The court accepted her plea and sentenced her to pay a $508 fine and to serve a term of imprisonment of zero to three months, suspended, and probation until further order of the court.

In October 1991, defendant allegedly violated the terms of her probation and was brought before the court. She waived counsel and was found in violation of the conditions of her probation, but her term of probation was continued. In January 1992, defendant was arraigned on a subsequent violation of her probation; she requested and was assigned public counsel. Defendant's counsel filed a motion to strike defendant's original sentence on the ground that the court had lacked the authority to impose a suspended prison sentence and probation after denying defendant counsel. The trial court denied the motion, and defendant now appeals.

We first consider defendant's argument that her sentence violated the Vermont Public Defender Act (PDA), 13 V.S.A. §§ 5201-5277. Section 5231(1) of the PDA provides, in relevant part, that "[a] needy person ... who is charged with having committed ... a serious crime, is entitled ... [t]o be represented by an attorney to the same extent as a person having his own counsel." A "serious crime" includes a misdemeanor, "the maximum penalty for which is a fine of more than $1,000.00 or any period of imprisonment." 13 V.S.A. § 5201(4)(B). The statute provides an exception, however, if "the judge, at the arraignment but before the entry of a plea, determines and states on the record that he will not sentence the defendant to a fine of more than $1,000.00 or a period of imprisonment if the defendant is convicted of the misdemeanor." Id. (emphasis added).

In the case at bar, the trial judge denied defendant counsel pursuant to the exception in 13 V.S.A. § 5201(4)(B). Upon defendant's uncounseled guilty plea, the trial court sentenced her to a period of imprisonment from zero to three months, suspended, and placed her on probation "until further order of the Court." The issue we must decide is whether the trial court's imposition of a suspended sentence of imprisonment and probation violated the trial court's representation pursuant to 13 V.S.A. § 5201(4)(B) that it would "not sentence the defendant to ... a period of imprisonment" if she were convicted.

The overriding objective of statutory construction is to ascertain the intent of the Legislature. State v. Wilcox, 160 Vt. 271, ----, 628 A.2d 924, 926 (1993). Where the meaning of a statute is plain on its face, the statute must be enforced according to its express terms. Id. In such cases, statutory language is to be accorded its plain, ordinary meaning, State v. Yudichak, 147 Vt. 418, 420, 519 A.2d 1150, 1151 (1986), because we presume the Legislature used the language advisedly. State v. Camolli, 156 Vt. 208, 213, 591 A.2d 53, 56 (1991).

The Public Defender Act expressly requires appointment of counsel for an indigent defendant charged with a serious crime, 13 V.S.A. § 5231(1), unless the sentencing judge determines "that he will not sentence the defendant to ... a period of imprisonment." 13 V.S.A. § 5201(4)(B). The State argues that defendant's sentence was proper under § 5201(4)(B) because defendant was not actually imprisoned, and probation is not penal in nature.

Both of the State's arguments ignore the fact that the trial judge actually sentenced defendant to a period of imprisonment, albeit suspended. By its plain language, § 5201(4)(B) applies any time a defendant is sentenced to a period of imprisonment. Under Vermont law, a judge may impose probation only "[a]fter passing sentence" on a defendant and suspending all or part of that sentence. 28 V.S.A. § 205. But suspension of a sentence of imprisonment does not negate the imposition of the sentence. Moreover, when, as here, the sentence is suspended in conjunction with probation, the suspension is merely conditional. Therefore, we hold that when a trial judge denies counsel to a needy person by determining that defendant will not be sentenced to a period of imprisonment, the trial judge may not then impose on defendant a conditionally suspended sentence and probation.

Because we agree that the trial court violated the Vermont Public Defender Act, we need not reach the federal or state constitutional questions raised by defendant. It should be noted, however, that the PDA codifies an indigent criminal defendant's constitutional right to assistance of counsel, guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution. State v. Duval, 156 Vt. 122, 124, 589 A.2d 321, 323 (1991). Our interpretation of the PDA is in accord with federal precedent defining a defendant's federal constitutional right to assistance of counsel.

In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the United States Supreme Court held that "no indigent criminal [can] be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Id. at 374, 99 S.Ct. at 1162 (emphasis added). Under Scott, a needy defendant is not constitutionally entitled to counsel where the authorized punishment for the crime charged includes the threat of imprisonment, but a sentence of imprisonment is not actually imposed. Id. at 373, 99 S.Ct. at 1162. When Scott drew the line at "actual imprisonment," it did so to distinguish two other possible scenarios--when defendant's sentence is a monetary fine and when defendant is charged with an offense for which imprisonment is authorized. Id. at 373, 99 S.Ct. at 1162.

Though Scott did not rule on whether a suspended sentence and probation without counsel violated the Sixth Amendment, there is federal authority on the issue. In United States v. Reilley, 948 F.2d 648 (10th Cir.1991), the court, relying on Scott, struck down a defendant's suspended prison sentence, reasoning that "the constitutional right to counsel limits not the trial itself, but rather the sentence that may be imposed. By denying [a] defendant counsel, the court effectively waives its right to sentence him to prison." Id. at 654. At least two other federal courts of appeal have held that where a needy defendant is denied trial counsel, imprisonment cannot be imposed upon defendant upon revocation of probation. See United States v. Foster, 904 F.2d 20, 21-22 (9th Cir.1990); United States v. Sultani, 704 F.2d 132, 133-34 (4th Cir.1983) (per curiam).

The trial court did not find the reasoning of the federal courts of appeal persuasive and instead followed United States v. Nash, 703 F.Supp. 507 (W.D.La.), aff'd, 886 F.2d 1312 (5th Cir.1989). The Nash court imposed a sentence of imprisonment on a defendant, who was convicted on the underlying charge without the benefit of counsel, for violation of probation. Id. The court reasoned that Scott 's "actual imprisonment" line is not crossed when a court imposes a conditionally suspended prison sentence on an uncounseled defendant. Id. at 510. It then concluded that because Nash was being sentenced to prison for his failure to follow conditions of probation, not for the underlying charge,...