State v. Parker, 89-011

Decision Date21 November 1990
Docket NumberNo. 89-011,89-011
Citation583 A.2d 1275,155 Vt. 650
PartiesSTATE of Vermont v. Fred C. PARKER, Jr.
CourtVermont Supreme Court

Before ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Ret.), Specially Assigned.

ENTRY ORDER

Defendant pled no contest to charges of burglary, retail theft, and petit larceny, and was sentenced to an aggregate term of one-to-six-years imprisonment. Defendant now appeals from the judgment of conviction, asking this Court to strike a condition of the plea agreement limiting his right to move for reconsideration of his sentence. Defendant signed a plea agreement which 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.

Defendant asserts that since the right to move for reconsideration of sentence is "conferred absolutely" by statute, any waiver of this right as a condition of a plea agreement is per se invalid. Defendant argues that his situation is directly analogous to State v. Buck, 139 Vt. 310, 428 A.2d 1090 (1981), where we invalidated a condition of a deferred sentence agreement which purported to restrict the defendant's right of appeal.

This case is in a different procedural posture than Buck. There, defendant appealed on points raised below which were reserved for appeal in the waiver agreement. This Court addressed the waiver issue sua sponte. Here, defendant raises his claim for the first time on appeal. He neither moved for reconsideration of sentence nor challenged the validity of the plea condition in the trial court. It is settled law that absent plain error, issues neither litigated nor decided below will not be addressed for the first time on appeal. State v. Hunt, 150 Vt. 483, 499, 555 A.2d 369, 379 (1988). At the very least, defendant's claim is premature, as the trial court was never given the opportunity to grant or deny a motion for reconsideration of sentence. There was, in essence, no lower court decision from which to appeal.

Defendant contends that he was unable to move for reconsideration in the trial court because the State would have attacked the filing of such a motion as a breach of the plea agreement and as grounds for rescission. We recognize that plea agreements are contractual in nature, and that the parties are entitled to rely upon the provisions of the plea bargain. See, e.g., State v. Day, 147 Vt. 93, 95, 511 A.2d 995, 997 (1986); Creaser v. State, 139...

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5 cases
  • State v. Sprague, 02-028.
    • United States
    • Vermont Supreme Court
    • February 21, 2003
    ...plain error, issues neither litigated nor decided below will not be addressed for the first time on appeal." State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (1990) (mem.). The record here, however, shows that the State agreed that defendant could raise the issues which it now claims ......
  • State v. Sole
    • United States
    • Vermont Supreme Court
    • February 27, 2009
    ...of suppression did not raise this particular issue in a manner requiring a ruling by the district court. See State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (1990) (mem.) (requiring, for an issue to be preserved, that there be a "lower court decision from which to appeal"). The passe......
  • State v. Johnstone
    • United States
    • Vermont Supreme Court
    • August 2, 2013
    ...224, 225–26, 542 A.2d 276, 277 (1988). The parties are entitled to rely upon the express terms of the agreement. State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (1990) (mem.). Although Rule 11 refers to conditional pleas made in writing, the absence of a writing does not negate a con......
  • State v. Coleman, 92-206
    • United States
    • Vermont Supreme Court
    • July 22, 1993
    ...Vt. 224, 225-26, 542 A.2d 276, 277 (1988). The parties are entitled to rely upon the express terms of the agreement, State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (mem. 1990), and defendant may demand specific enforcement of the terms of the agreement. State v. Duval, 156 Vt. 122, ......
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