State v. Kimmick
Decision Date | 24 May 2007 |
Docket Number | No. 05-188.,05-188. |
Parties | STATE of Vermont v. William KIMMICK. |
Court | Vermont Supreme Court |
Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ., and DAVENPORT, Superior Judge, Specially Assigned.
¶ 1. Defendant William Kimmick appeals his sentence imposed following a contested sentencing hearing in the district court. Defendant alleges the court erred in: (1) permitting victim-impact testimony by unsworn witnesses; (2) permitting a nonvictim to testify as a victim; and, (3) imposing a sentence in which the effective minimum and maximum terms are, after taking into account the effect of good-time credit, the same. We affirm.
¶ 2. On November 23, 2004, defendant pleaded guilty to voluntary manslaughter of his ex-wife. The plea agreement contained no agreed-upon sentence; rather, the parties stipulated that each could argue for a particular sentence at a contested hearing. Under the terms of the agreement, defendant waived his right to appeal a "lawfully-imposed sentence."
¶ 3. At the final status conference, the district court noted that there was a legal question as to whether family members were required to make their statements under oath. Accordingly, the court asked defense counsel directly whether there were any objections to the family members making unsworn statements; defense counsel did not object. At the sentencing hearing, the district court indicated that victim-impact testimony should be confined to matters of opinion on the sentence and should not include assertions of fact. The court instructed that defense counsel could request the witnesses be sworn in at any time if they began to present factual information. At no time during the unsworn victim-impact testimony did defense counsel raise an objection or request that a witness be sworn in.
¶ 4. During the sentencing hearing, a witness from the Department of Corrections (DOC) testified as to the good-time credit available to reduce defendant's sentence, noting that under the relevant statutory scheme, his sentence could not be reduced by good time below the minimum term set by the court. The DOC witness also testified to the effect of good-time credit on a split sentence — a sentence with a portion suspended over a probationary period — and a straight sentence — a sentence without suspended time. Three witnesses gave unsworn victim-impact testimony: the victim's mother; the victim's sister; and the victim's sister's fiance, who was also a longtime friend of the family. A state trooper was sworn in and testified as to the investigation. Four witnesses testified on behalf of defendant; all of these witnesses were sworn in.
¶ 5. In argument at the hearing, both the State and defendant supported the split-sentence option. The district court imposed a straight sentence with a minimum of fourteen and a maximum of fifteen years.
¶ 6. Defendant claims that the sentence was "imposed in an illegal manner" because the procedure was deficient, and that it is "illegal" because the minimum and maximum sentences are effectively the same. V.R.Cr.P. 35(a). He further contends that the appeal waiver does not prevent these claims. Because we find defendant's first arguments unmeritorious, we do not reach whether the appeal waiver precludes their review.
¶ 7. Defendant first argues that, in light of his constitutional right "not [to] be sentenced on the basis of materially untrue information," it was reversible error to permit unsworn witnesses to testify at his sentencing hearing. State v. Ramsay, 146 Vt. 70, 78, 499 A.2d 15, 20 (1985); State v. Chambers, 144 Vt. 377, 383, 477 A.2d 974, 979 (1984) ( ). Because defendant did not object to the testimony at the sentencing hearing, we review the district court's decision for plain error only. State v. Yoh, 2006 VT 49A, ¶ 36, 180 Vt. 317, 910 A.2d 853. A court commits plain error "`where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights.'" State v. Oscarson, 2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337 (quoting State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993)).
¶ 8. Defendant bases his claim of plain error on the severity of his sentence and on the pretrial information presented by the witnesses. We do not find plain error on these bases. Defendant cannot demonstrate that the victim-impact statements lengthened his sentence, and the district court did not relate its conclusions regarding the sentence to the statements. Moreover, defendant points to no testimony that was "materially untrue." The district court gave a thorough explanation of the many factors it relied on, and defendant has not shown that he was prejudiced in any way by the factual assertions made during the victim-impact statements.
¶ 9. Defendant's second related argument is that it was plain error to permit a family friend and fiance of the victim's sister to testify. A family friend or fiance is not a "family member" under victim's-testimony statutes, 13 V.S.A. § 5301(2), and thus is not a "victim" in a homicide case. Id. § 5301(4). The friend, therefore, did not have a right to testify, and the court was not required to "consider any views [he] offered at the hearing." Id. § 5321(c). The prosecution may, however, "present any information relevant to sentencing," V.R.Cr.P. 32(a)(1), and we have held that this may include victim-impact information. See State v. Bushway, 146 Vt. 405, 407, 505 A.2d 660, 661 (1985); In re Meunier, 145 Vt. 414, 418, 491 A.2d 1019, 1022 (1985). These cases preceded the current victim's-testimony statutes and, although they involved the testimony of the victim of the crime, they are not necessarily limited to that witness only. Here, therefore, the issue is not so much the witness' familial status as it is the relevancy of his testimony.
¶ 10. Most significantly, however, defendant failed to object to allowing the friend to testify, and failed to object to any of the content of his testimony. Defendant does not argue here that any of the content of the testimony was irrelevant and inadmissible. Thus, even if there were error in the testimony of the witness, defendant has not demonstrated how that error was prejudicial.
¶ 11. Defendant's third argument is that the district court's sentence is illegal because reducing the maximum sentence through good-time credits under 28 V.S.A. § 811* makes the effective maximum and minimum sentences the same, in violation of 13 V.S.A. § 7031. Under 13 V.S.A. § 7031(a), the district court must establish a maximum sentence in accordance with the maximum term fixed by law for the offense and may establish a minimum term that shall not be less than the minimum term fixed by law for the offense. Section 7031(a) also directs that "the court imposing the sentence shall not fix the term of imprisonment." We have construed the statute as prohibiting "a sentence with the same maximum and minimum terms of confinement." State v. Bruley, 129 Vt. 124, 130, 274 A.2d 467, 471 (1970). Defendant argues that we should extend the Bruley holding to cases where the minimum and maximum imprisonment sentences are not identical when imposed, but become so as a result of good-time credit.
¶ 12. In construing statutes, this Court looks first to the language of the statute to determine whether the meaning is plain. In re Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999). If the plain language of the statute is clear and "resolves the conflict without doing violence to the legislative scheme we are bound to follow it." State v. Baron, 2004 VT 20, ¶ 6, 176 Vt. 314, 848 A.2d 275 (citations and quotation omitted). If the words of the statute do not provide sufficient guidance to ascertain legislative intent, however, we look to the statute's "subject matter, its effects and consequences, and the reason and spirit of the law" for meaning. State v. Thompson, 174 Vt. 172, 175, 807 A.2d 454, 458 (2002).
¶ 13. The language of 13 V.S.A. § 7031 clearly mandates that a court may not fix the term of a sentence by imposing minimum and maximum sentences that are the same. See State v. Lambert, 2003 VT 28, ¶¶ 17-18, 175 Vt. 275, 830 A.2d 9 ( ); Bruley, 129 Vt. at 130, 274 A.2d at 471 ( ). A sentence is not fixed as long as the maximum and minimum terms are not identical. See Woodmansee v. Stoneman, 133 Vt. 449 461, 344 A.2d 26, 33 (1975) ( ); Bushway, 146 Vt. at 408, 505 A.2d at 662 ( ).
¶ 14. The district court's sentence meets the statutory requirements. The sentence is not fixed because, even though the difference between the maximum and minimum terms is slight, the terms are not identical. See Woodmansee, 133 Vt. at 461, 344 A.2d at 33 ( ). For several reasons, we conclude that the effect of good time does not change this rule.
¶ 15. First, § 7031(a) does not specify that the sentencing judge must take good-time credit into account when imposing the maximum and minimum terms of a sentence. The statute simply requires that at the time of sentencing the maximum and minimum terms imposed be different. The district court followed the statute's directive in imposing a sentence of...
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