State v. Hance, 90-242

• Decision Date: 19 July 1991
• Docket Number: No. 90-242,90-242
• Citation: 157 Vt. 222,596 A.2d 365
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Henry J. HANCE.

Page 365

596 A.2d 365

157 Vt. 222

STATE of Vermont v. Henry J. HANCE.

No. 90-242.

Supreme Court of Vermont.

July 19, 1991.

Marc D. Brierre, Rutland County Deputy State's Atty., Rutland, for plaintiff-appellee.

Kenneth Schatz, Acting Defender Gen. and Anna E. Saxman, Appellate Atty., Montpelier, for defendant-appellant.

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

DOOLEY, Justice.

Defendant, Henry Hance, appeals from the trial court's denial of his motion under V.R.Cr.P. 35 and 13 V.S.A. § 7042 for sentence reconsideration. The sole issue is whether a criminal defendant may expressly waive the right to sentence reconsideration in a plea agreement in which the State and the defendant jointly agree to a recommended sentence. We hold that such a waiver is valid and affirm.

On January 3, 1990, defendant pled no contest to three counts: selling cocaine, leaving the scene of an accident, and a third offense of driving with a suspended license. His plea was made pursuant to a written agreement, dated December 1, 1989, and signed by the state's attorney, defendant and his counsel. It provided that the state's attorney and defendant's attorney would jointly recommend a sentence of two-to-six years. The State agreed to dismiss a fourth offense of driving under the influence and a third offense of driving with a suspended license. The agreement also included the following provision:

5) DEFENDANT hereby understands and waives his right under 13 V.S.A. § 7042 to request the Court for reconsideration of the sentence(s) imposed under this agreement, except to the extent that the penalty imposed is greater than that recommended by the State herein.

At the sentencing hearing, defendant's attorney explained that defendant had agreed to the sentence, argued that the agreement was fair, and urged the court to impose the agreed-upon sentence. After determining that defendant's waiver was voluntary, knowing, and intelligent, the court sentenced defendant to two-to-six years' imprisonment: two-to-five years for selling cocaine, with six months for driving with a suspended license to be served concurrently; and zero-to-one year for leaving the scene of an accident, to be served consecutively.

On March 26, 1990, defendant filed a motion for sentence reconsideration, asking that his minimum sentence be reduced by one year. At the motion hearing, the court concluded that defendant had waived his right to move for sentence reconsideration under the terms of the plea agreement and refused to consider the merits of his motion. This appeal followed.

Defendant argues that 13 V.S.A. § 7042 and V. R.Cr.P. 35 create an absolute right to move for sentence reconsideration and provide no authorization for waiver of that right and, as a matter of statutory construction and sound policy, we should not allow such a waiver. As defendant concedes, neither the rule nor the statute speaks to this issue.

At the outset, we note that our decisions authorize a defendant to waive virtually any right, constitutional or statutory, as long as the waiver is knowing, intelligent, and voluntary. Thus, a defendant may waive the right against self-incrimination, see State v. Caron, 155 Vt. 492, ----, 586 A.2d 1127, 1135 (1990), the right to counsel, see State v. Merrill, 155 Vt. 422, 584 A.2d 1129 (1990), the right to trial by jury, see State v. Conn, 152 Vt. 99, 102, 565 A.2d 246, 247 (1989), and the right to any trial, see V.R.Cr.P. 11(c)(4). It would be anomalous for us to allow waiver of these important constitutional rights and then to deny waiver of a statutory right to sentence reconsideration.

Defendant responds to our waiver decisions by urging us to apply the rationale of State v. Buck, 139 Vt. 310, 428 A.2d 1090 (1981), a criminal case in which we indicated that we would not enforce a plea agreement provision restricting the right to appeal. In Buck, defendant was found guilty by a jury but entered into a sentencing agreement for a deferred sentence pursuant to 13 V.S.A. § 7041(a). The agreement restricted the issues defendant could raise on appeal. We stated that, because the right to appeal from a criminal conviction was conferred absolutely by statute, "its restriction or prohibition as a condition of sentence deferment or probation cannot be reconciled with that statute." Id. at 315, 428 A.2d at 1093. The holding of Buck on this point is dicta. Although we have not revisited the issue since Buck, we note that the overwhelming weight of authority in other states is that, under certain circumstances, the right of appeal can be waived in a plea agreement. See People v. Seaberg, 74 N.Y.2d 1, 8 n. *, 541 N.E.2d 1022, 1024 n. *, 543 N.Y.S.2d 968, 971 n. * (1989) (collecting cases). In any event, we find that Buck is distinguishable for three reasons.

First, in Buck there was no direct correlation between the sentence deferment and the appeal of issues underlying defendant's conviction. Thus, the State had used its power to prevent sentence deferment, see 13 V.S.A. § 7041(a), to induce an unrelated waiver of defendant's rights. Here, in contrast, the State used the waiver to ensure it receives the benefit of the bargain it made with defendant. If defendant is allowed to seek and obtain a reduction of his minimum sentence, the State will have dismissed charges, foregone defendant's testimony in another proceeding, and waived its right to argue for a higher sentence, in return for a sentence that defendant will never serve. See People v. Fearing, 110 Ill.App.3d 643, 645, 66 Ill.Dec. 378, 379, 442 N.E.2d 939, 940-41 (1982).

Plea bargains have become an essential part of the administration of justice. See Standards for Criminal Justice § 14-3.1 commentary (2d ed. 1986). Indeed, we have gone further than most states and the federal courts in allowing the trial judge to participate in the plea negotiation process. See State v. Davis, 155 Vt. 417, ----, 584 A.2d 1146, 1148 (1990). It is important to the integrity of the system that plea bargains be honored by both the defendant and the State. We note that the one state court that has considered the issue has ruled that a sentence reduction under rules similar to ours gives the State the right to rescind the plea agreement on which the sentence was based. People ex rel. VanMeveren v. District Court, 195 Colo. 34, 37-38, 575 P.2d 4, 7 (1978) (en banc); see also Jolly v. State, 392 So.2d 54, 56 (Fla.Dist.Ct.App.1981) (invalid sentence must be cured by vacating judgment rather than by resentencing so that State is not denied benefit of plea bargain). We concluded recently in State v. Whitchurch, 155 Vt. 134, 139, 577 A.2d 690, 693 (1990), that a later modification of a plea agreement, providing terms of probation, may give the State the opportunity to reopen the entire agreement and seek a different sentence. We need not reach whether modification would be a breach of the plea agreement; ^* it is sufficient to say that the bilateral nature of the agreement supports allowing waiver of defendant's right to seek sentence reduction as part of that agreement.

The second reason that Buck does not control this case lies in the difference between the nature of appeal and the nature of sentence reconsideration. The purpose of an appeal is to correct error in the underlying conviction or in the sentence. An opportunity to appeal ensures that a conviction is based on a fair trial and a proper determination of guilt. Even where there has been a guilty plea, the appeal assures adherence to "standards which have been developed with painstaking care to afford defendants their basic rights." People v. Butler, 43 Mich.App. 270, 280, 204 N.W.2d 325, 330 (1972); see also State v. Ethington, 121 Ariz. 572, 573, 592 P.2d 768, 769 (1979) ("public policy forbids a prosecutor from insulating himself from review by bargaining away a defendant's appeal rights").

The purpose of sentence reconsideration is discussed in State v. Dean, 148 Vt. 510, 513, 536...