State v. Morrill
| Decision Date | 05 October 1971 |
| Docket Number | No. 84-70,84-70 |
| Citation | 129 Vt. 460,282 A.2d 811 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Richard L. MORRILL. |
Patrick J. Leahy, State's Atty., and William O. Wuester, Deputy State's Atty., for the State.
John W. Brockway and Frederick M. Niland, White River Junction, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This is a petition for review of a sentence, brought under the post-conviction relief statute, 13 V.S.A. § 7131. Relief was denied below and petitioner, Richard L. Morrill, has appealed to this Court under the provisions of 13 V.S.A. § 7135.
On November 2, 1967, the petitioner, age 36, was convicted by a jury in the Chittenden County Court of the crime of statutory rape and sentenced to be confined in the state's prison in Windsor, Vermont, at hard labor for a period of not less than fifteen, or more than twenty years. This sentence was recommended by the state's attorney.
The statute, 13 V.S.A. § 3201, under which sentence was imposed, provides for a maximum imprisonment in the state prison of not more than twenty years or fined not more than $2,000.00, or both. A related statute, 13 V.S.A. § 7031, as it existed at the time petitioner was sentenced, required that the court establish a maximum and minimum term of sentence unless definitely fixed by statute.
On appeal to this Court from the conviction, the judgment of the lower court was affirmed. State, v. Morrill, 127 Vt. 506, 253 A.2d 142.
By way of further background to these proceedings, this petition for a review of the sentence was filed on November 3, 1969. On November 5, 1969 it was denied by the Chittenden County Court, without a hearing, upon the ground that the files and records conclusively show that the petitioner was not entitled to the requested relief.
By a motion dated November 10, 1969 the defendant requested that the files and records, such as the presentence report, be made available for examination. This motion was disposed of by the court by a written order stating, 'No order is made in connection with said motion in view of the fact that as a matter of law all files and records of the Chittenden County Court, except as otherwise ordered, are open to examination by the parties thereto.'
The petitioner appealed to this Court from the order of November 5, 1969 denying the petition to review the sentence. On April 13, 1970, this Court reversed the order of denial pro forma, with a mandate for appropriate proceedings under 28 V.S.A. § 1003. This section, as applied here, relates to the availability of the presentence report to the petitioner or his attorney. Subsequent to the taking of the appeal, petitioner's counsel was afforded access to this report.
The petition sets forth the following grounds for a review and reduction of his sentence.
(1) The sentence imposed is the maximum allowed by the Statute, despite the fact that the Respondent had no previous record of convictions except for minor motor vehicle violations.
(2) The Pre-Sentence Investigation disclosed two prior complaints of a similar nature against two women over the age of sixteen. These complaints were nolle prosequi, but it is the Respondent's contention that these complaints were considered in the pre-sentence investigation and as a result two (2) nolle prosequi complaints had the same force and effect as convictions in determining the imposition of the maximum sentence. As a result, the Respondent's constitutional guarantee of due process of law under the 5th and 14th Amendment to the United States Constitution was infringed.
(3) Other respondents who have been convicted of the same offense more often than not have received lesser sentences, even when such cases show a record of prior convictions and therefore, the Respondent contends that his constitutional right to equal protection of the laws under the 14th Amendment to the United States Constitution has been violated.
(4) The Respondent has been confined to the State Prison at Windsor for approximately two (2) years. During this time he has been a model prisoner with an excellent disciplinary record, and prison officials have seen fit to make the Respondent a Trustee.
(5) The Respondent is a skilled cabinet maker by occupation and therefore, capable of being a genuinely rehabilitated, productive member of society.
The state, § 7131, supra, under which this petition is brought reads:
A prisoner who is in custody under sentence of a court and claims the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or of the state of Vermont, or that the court was without jurisdiction to impose the sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the county court of the county where the sentence was imposed to vacate, set aside or correct the sentence. However, the superior or district judge who presided when the original sentence was imposed shall not hear the application.
The following section, 7132, states that 'The motion may be informal, but shall identify the offense, the date of sentencing, and the alleged violation or defect in the sentence.'
A further related section of the statute, 13 V.S.A. § 7133, provides:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the state's attorney and attorney general, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * * If the court finds that the judgment was made without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to make the judgment vulnerable to collateral attack, it shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
The counterpart of sections 7131 and 7133, supra, is found in 28 U.S.C.A. § 2255.
Just prior to the imposition of sentence the trial court stated:
We are particularly concerned and interested here in regard to this Respondent's record which always must be taken into...
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State v. Webster
...of a case in fashioning an appropriate sentence and it may consider factors, such as a prior conviction. State v. Morrill, 129 Vt. 460, 464, 282 A.2d 811, 814 (1971). In addition, the court must consider "the history and character of the defendant, the need for treatment, and the risk [the ......
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State v. Webster
...of a case in fashioning an appropriate sentence and it may consider factors, such as a prior conviction. State v. Morrill, 129 Vt. 460, 464, 282 A.2d 811, 814 (1971). In addition, the court must consider "the history and character of the defendant, the need for treatment, and the risk [the ......
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State v. Bacon
...financial status, and the nature of the offense committed. See V.R.Cr.P. 32(c) (sentencing information); State v. Morrill, 129 Vt. 460, 465, 282 A.2d 811, 815 (1971) (knowledge of defendant's life, background, family, past conduct, record, and inclinations is only proper basis for determina......
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State v. Ramsay, 83-359
...conduct, record and inclinations, is the only proper basis for the determination as to his sentence or treatment." In re Morrill, 129 Vt. 460, 465, 282 A.2d 811, 815 (1971). A defendant has a constitutional right that he not be sentenced on the basis of materially untrue information. Townse......