State v. Hinton

• Decision Date: 31 July 2020
• Docket Number: No. 2019-097,2019-097
• Citation: 2020 VT 68
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Matthew S. Hinton

2020 VT 68

State of Vermont v. Matthew S. Hinton

No. 2019-097

Supreme Court of Vermont

March Term, 2020

July 31, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Rutland Unit, Criminal Division

Thomas A. Zonay, J.

Rosemary Kennedy, Rutland County State's Attorney, and L. Raymond Sun, Deputy State's Attorney, Rutland, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Sarah Star, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. COHEN, J. Defendant Matthew Hinton appeals the superior court's sentence following his guilty plea to escaping from furlough. Defendant argues that new legislation decriminalizing the conduct should be applied retroactively to him. Separately, he maintains that the court abused its discretion when it ordered the sentence to run consecutively to two other sentences. We affirm.

¶ 2. In 2015, defendant was under the supervision of the Department of Corrections (DOC) when he escaped from furlough and burglarized several homes in Addison County. He was subsequently arrested and found in possession of a firearm. From these acts emerged three sets of charges: In the superior court, the State charged defendant with one count of escape from furlough under 13 V.S.A. § 1501(b)(2) in the Rutland Criminal Division, and with three counts of burglary in the Addison Criminal Division. In the U.S. District Court for the District of Vermont, the United States charged him with being a felon in possession of a firearm.

¶ 3. In 2018, the Addison Criminal Division sentenced defendant to four to ten years' imprisonment on the burglary charges. The same year, the U.S. District Court sentenced him to seven years' imprisonment and three years of supervised release, concurrent to the state sentence. Defendant then pled guilty to the escape charge and, on March 7, 2019, the Rutland Criminal Division entered a judgment of guilty and sentenced him to four to five years' imprisonment, consecutive to the Addison and federal sentences. Defendant timely appealed the Rutland sentence.

¶ 4. Effective July 1, 2019, during the pendency of this appeal, the Legislature decriminalized the conduct giving rise to defendant's escape conviction. See 2019, No. 77, §§ 10, 26. The law now authorizes the DOC to issue an arrest warrant for a person who absconds from certain types of furlough and provides that "[a] person for whom an arrest warrant is issued . . . shall not earn credit toward service of his or her sentence for any days that the warrant is outstanding." Id. § 11 (codified as amended at 28 V.S.A. § 808e).

¶ 5. Defendant argues that the escape sentence should be vacated because the new legislation, enacted while his case was on direct appeal, should be applied retroactively to him. Alternatively, he contends that the sentence, imposed consecutively to the other two sentences, must be vacated as an abuse of discretion. We reject both arguments in turn.

I. Retroactivity

¶ 6. We address the retroactivity argument for the first time on appeal because the new legislation did not go into effect until after the filing of this appeal and accordingly defendant could not have raised the issue before the trial court. See State v. Aubuchon, 2014 VT 12, ¶ 10, 195 Vt. 571, 90 A.3d 914.

¶ 7. Defendant first relies on a line of cases holding that judicial decisions announcing new constitutional rules apply retroactively to cases on direct review. See, e.g., State v. White, 2007 VT 113, ¶¶ 8-9, 182 Vt. 510, 944 A.2d 203; State v. Shattuck, 141 Vt. 523, 528-29, 450 A.2d 1122, 1124-25 (1982). Those cases are traceable to the broader common-law rule "that a change in law will be given effect while a case is on direct review." Shattuck, 141 Vt. at 529, 450 A.2d at 1125 (quotation omitted). Defendant's reliance on those authorities is misplaced.

¶ 8. We have explained that "[at] common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition" and that "[t]o avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated." State v. Matthews, 131 Vt. 521, 523, 310 A.2d 17, 19 (1973). In the nineteenth century, however, Vermont and other jurisdictions adopted "saving clauses"—statutes that "save" from amendment or repeal, "all statutory rights and penalties created by a completed set of factual circumstances." Id. at 524, 310 A.2d at 20. Thus, it is settled that Vermont's saving statute, 1 V.S.A. § 214, was adopted to abandon the common-law rule of retroactivity for new legislation. See State v. Petrucelli, 156 Vt. 382, 384, 592 A.2d 365, 366 (1991). Consequently, the saving statute controls this case, not the common law or authorities governing the retroactivity of judicial decisions.

¶ 9. In § 214, the Legislature declared:

The amendment or repeal of an act or statutory provision, except as provided in subsection (c) of this section, shall not . . . affect any violation of the act or provision amended or repealed, or any penalty or forfeiture incurred thereunder, prior to the effective date of the amendment or repeal . . . .

1 V.S.A. § 214(b)(3). Accordingly, the general rule is that statutory amendments or repeals only apply prospectively. See also Aubuchon, 2014 VT 12, ¶ 16 ("Generally, statutes operate only prospectively, while judicial decisions operate retrospectively." (quotation omitted)); Petrucelli,156 Vt. at 385, 592 A.2d at 366 (observing "well-established rule that new criminal legislation has only prospective application"). As an exception to this general rule, § 214(c) provides that "[i]f 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." 1 V.S.A. § 214(c). We have held that subsection (c) is a narrow exception that applies only to a statutory amendment that reduces the penalty or punishment for an offense, see State v. Lapan, 158 Vt. 382, 386, 609 A.2d 970, 972 (1992) (distinguishing amendment from repeal); State v. Barron, 2011 VT 2, ¶ 38, 189 Vt. 193, 16 A.3d 620 (distinguishing reduction in punishment from redefinition of offense), and we have adopted a test to determine when those conditions are present, see State v. Flagg, 160 Vt. 141, 144, 624 A.2d 864, 866 (1993).¹

¶ 10. An initial reading of § 214(c) suggests that the new legislation does not apply to defendant because the trial court sentenced him and entered judgment "prior to the date of the amendment." 1 V.S.A. § 214(c). But pointing to the common law, defendant argues that under § 214(c), a sentence is not "imposed" until resolution of a direct appeal.

¶ 11. Our goal in interpreting a statute is to identify and implement the Legislature's intent. State v. Davis, 2020 VT 20, ¶ 47, ___ Vt. ___, ___ A.3d ___. "We presume that the plain, ordinary meaning of statutory language is intended." State v. Harty, 147 Vt. 400, 402, 518 A.2d 30, 31 (1986). "If the plain language is clear and unambiguous, we enforce the statute according to its terms." State v. Blake, 2017 VT 68, ¶ 8, 205 Vt. 265, 174 A.3d 126 (quotation omitted). Statutes governing the same subject matter are read together, "because a proper interpretation mustfurther the entire statutory scheme." Wool v. Office of Prof'l Regulation, 2020 VT 44, ¶ 22, ___ Vt. ___, ___ A.3d ___ (quotation omitted).

¶ 12. Defendant's reading of § 214(c) is inconsistent with the plain, ordinary meaning of the word imposed. "Imposing a sentence" naturally connotes a trial court sentencing a defendant after an adjudication of guilt, not an appellate court disposing of an appeal. This interpretation is supported by our case law, the law of other jurisdictions, and the Legislature's use of the word "impose" in other statutes governing sentencing.

¶ 13. On at least three occasions, this Court has applied the pre-amendment version of a statute where the trial court pronounced sentence prior to the statutory amendment. See State v. Aubuchon, 2014 VT 12, ¶ 12 (applying pre-amendment version of statute among other reasons because defendant was sentenced prior to amendment); State v. LeClair, 2013 VT 114, ¶ 6 n.*, 195 Vt. 295, 88 A.3d 1186 (same), superseded on other grounds by statute, 2013, No. 4, § 1, as recognized in Aubuchon, 2014 VT 12, ¶ 12; State v. Barron, 2011 VT 2, ¶ 38, 189 Vt. 193, 16 A.3d 620 (same).² In Barron, we specifically used the plain meaning of the word "imposed." There, the trial court sentenced the defendant before the statute was amended and we rejected defendant's argument that the new version of the statute controlled. 2011 VT 2, ¶¶ 36, 38. We held that "§ 214(c) operates as defendant suggests only if the sentence is not imposed 'prior to the date of the amendment,' " and that "[t]he sentence at issue . . . was imposed prior to the date of the amendment." Id. ¶ 38.

¶ 14. Our reading of § 214(c) is consistent with the Legislature's use of the word impose in two subsections of 13 V.S.A. § 7042, which also relate to sentencing. Subsection (a) provides that a court "imposing a sentence . . ., within 90 days of the imposition of that sentence, or within 90 days after entry of any order or judgment of the Supreme Court upholding a judgment ofconviction, may upon its own initiative or motion of the defendant, reduce the sentence." Id. § 7042(a)....