State v. Platt, 91-357

• Citation: 610 A.2d 139,158 Vt. 423
• Decision Date: 08 May 1992
• Docket Number: No. 91-357,91-357
• Parties: STATE of Vermont v. David A. PLATT, Jr.
• Court: United States State Supreme Court of Vermont

Page 139

610 A.2d 139

158 Vt. 423

STATE of Vermont v. David A. PLATT, Jr.

No. 91-357.

Supreme Court of Vermont.

May 8, 1992.

Dan M. Davis, Windham County State's Atty., Karen R. Carroll, Deputy State's Atty., and Diane L. Shapiro, Legal Intern, Brattleboro, for plaintiff-appellee.

David G. Reid, Brattleboro, for defendant-appellant.

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

DOOLEY, Justice.

Defendant, who is HIV positive, pled no contest to a charge of accessory after the fact to a felony, and the district court sentenced him to a three-to-five-year prison term. He appeals the court's denial, after hearing, of his motion for sentence reconsideration. His principal argument is that promises of medical treatment which induced his plea have not been kept. He also argues that the court allowed evidence of and considered charges not brought against him in determining his sentence, that he was compelled to testify at the sentence reconsideration hearing in violation of his constitutional rights, and that he was improperly denied credit for time spent under conditions of release prior to his sentencing and incarceration. We affirm.

In December 1985, Christopher Fauber was murdered by a blow to the back of his head with a blunt instrument. His body was wrapped in plastic and taken to New Hampshire, where it was dumped over the bank of a highway rest area. Defendant was charged with the murder, and he pled not guilty. Later, in part because of weaknesses in its case against defendant, the State agreed to reduce the charge to accessory after the fact to the murder. In return, defendant agreed to plead no contest to that charge. The amended information read:

[defendant] was a person not standing in relation ... to an offender, to wit; Michael Guerrera, who, after the commission of a felony, to wit; murder, assisted such offender, to wit; helped in the transportation and concealment of the victim's body with intent that Guerrera avoid arrest or punishment therefore....

The maximum penalty for acting as an accessory after the fact to a felony is seven years in prison or a $1,000 fine, or both. 13 V.S.A. § 5.

On September 5, 1990, counsel for both parties appeared before the court and explained the terms of the plea agreement. Counsel for defendant expressed his client's concern about the medical treatment that defendant would receive while incarcerated if he was sentenced to prison. Defendant specifically sought the court's assurances with respect to the availability of certain medications and a special dietary program, and that he be provided with out-of-state transportation for respiratory therapy. The court agreed to inquire of the Department of Corrections (DOC) whether defendant's concerns could be met, and expressed its willingness to incorporate the substance of the needs expressed by defendant in an order to DOC. The court stated:

They [the DOC] are hard and fast in maintaining their prerogative as to services and programming of inmates that a judge can't tell them what to do, in very plain English. So I, one, can assure you that I would make every effort to make such a proper order and, two, would try to at least get a weather report from Corrections as to whether this would be in the realm of possibility. And I suspect that's the best I will be able to get from them.

After speaking with a DOC official, the court indicated that, in principle, DOC objected only to transporting defendant out of state for treatment. The court agreed to order the Department to do a medical staffing in consultation with defendant's doctors and to issue a case plan before sentencing. The court further promised defendant that it would not impose a sentence greater than the four-to-seven-year term recommended by the State. Defendant then pled no contest to the charge contained in the amended information. A sentencing hearing was held November 15-16, 1990, and the court sentenced defendant to a term of three-to-five years in prison. He was incarcerated the following month. In February, 1991, defendant filed a motion for review of his sentence under 13 V.S.A. § 7042(a) and V. R.Cr.P. 35. After hearings in May 1991, the court denied the motion.

Before we address defendant's specific claims, we must emphasize that only certain issues may be raised in a sentence reconsideration proceeding. Sentence reconsideration can be used to correct an illegal sentence or one "imposed in an illegal manner." V.R.Cr.P. 35(a); see State v. Davis, 155 Vt. 417, 418, 584 A.2d 1146, 1147 (1990). More often it is used to modify a lawful sentence. V.R.Cr.P. 35(b), (c). We recently said:

"The purpose of sentence reconsideration is to allow a second look at the sentencing decision 'absent the heat of trial pressures and in calm reflection to determine that it is correct, fair, and serves the ends of justice.' [13 V.S.A. § 7042(a) ] allows modification of a sentence 'which, upon reflection and in the presence of unchanged circumstances, might be shown to be unwise or unjust.' In making these determinations, the trial court has wide discretion to consider such factors as it believes are relevant."

State v. Hance, 157 Vt. 222, ----, 596 A.2d 365, 367 (1991) (quoting State v. Dean, 148 Vt. 510, 513, 536 A.2d 909, 912 (1987)) (citations omitted). It is not the purpose of sentence reconsideration to review circumstances that come about following the imposition of the sentence; generally, the review is only of the " 'circumstances and factors present at the time of the original sentencing.' " State v. Derouchie, 157 Vt. 573, ----, 600 A.2d 1323, 1325 (1991) (quoting State v. LaPine, 148 Vt. 14, 15, 527 A.2d 1150, 1150 (1987)).

Defendant's motion for sentence reconsideration did not attack the legality of the sentence or the sentencing procedure. Instead, he asked the court to reduce the sentence, pursuant to V.R.Cr.P. 35, to eliminate any requirement of incarceration because the court had sentenced him as if he were charged with murder. He also maintained that he was not receiving proper medical care within the corrections system, and that he was subject to harassment by inmates and guards.

With that background in mind, we first address defendant's claim that the court failed to adhere to promises with respect to medical treatment it made as part of the consideration for defendant's plea. We conclude that this claim is not supported by either the facts or the law.

A review of the record shows that prior to defendant's plea the trial judge indicated his willingness in principle to order that defendant receive the specific medical treatment he requested. As set forth above, he added that DOC would take the position that it was not bound by such an order and he contacted DOC to inquire as to how they would respond to such a directive. After he spoke with the Commissioner of Corrections, he proposed that he order DOC to do a staffing report. Defendant accepted this suggestion, and there was no further mention of a direction to DOC to provide defendant specific treatment. Defendant pled no contest based on the court's promise to request the staffing report. The report was produced at the sentencing hearing, and a DOC nurse testified at length about the care defendant could expect if he were imprisoned. Defendant did not object to the adequacy of the report, nor did he ask at sentencing that the court order specific medical care.

Defendant argues that the treatment plan contained in the DOC staffing report has not been implemented and that the court's failure to insure the provision of treatment violates the commitment it made to induce defendant to change his plea. After evidence was presented at the sentence review hearing, the court found that its promise to order the staffing had been fulfilled by the completion of the report and that, although the treatment expected by the court at the time of sentencing had not taken place, it was largely due to defendant's failure to accept the treatment offered by the DOC and refusal to cooperate with the DOC's medical staff. The record supports the court's view of its obligation. It did not make itself a surety for the treatment defendant would receive in prison. If there is a claim of breach of commitment, it lies against DOC and not the court.

There are two alternative remedies for breach of plea agreement: specific enforcement of the agreement or allowance of a plea withdrawal. In re LaRose, 141 Vt. 1, 4, 442 A.2d 467, 469 (1982); see also Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) (state court in better position to determine, after there has been a material breach of plea agreement, whether appropriate remedy is specific enforcement or allowance of plea withdrawal). Defendant has sought neither enforcement of the purported obligation to provide specific medical services nor withdrawal of his plea. In State v. Cyr, 141 Vt. 355, 357, 449 A.2d 926, 927 (1982), we held that relying on improper information in a presentence investigation report as grounds to strike a conviction and withdraw a plea "is completely inapposite." Reliance on breach of a plea agreement to obtain a reduction of sentence similarly fails. Even if defendant's claim were factually supported, he would not be entitled to the relief he seeks.

We next address defendant's claim that the court improperly considered charges not brought against him in fashioning its sentence. The court allowed the State at the sentencing hearing, over defendant's objection, to present evidence to show that defendant played a role not only in disposing of the victim's body, but also in the murder itself. Defendant argues that, because he pled no contest to the charge of accessory after the fact to the murder, any evidence tending to show his culpability for the murder itself should have been excluded as being irrelevant and prejudicial.

If this were a direct appeal of the sentence, we would...