State v. Ray

• Decision Date: 02 August 2019
• Docket Number: No. 2018-103,2018-103
• Citation: 2019 VT 51
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Jeffrey M. Ray

2019 VT 51

State of Vermont v. Jeffrey M. Ray

No. 2018-103

Supreme Court of Vermont

May Term, 2019

August 2, 2019

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, Orleans Unit, Criminal Division

Robert R. Bent, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Defendant-Appellant.

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

¶ 1. EATON, J. Defendant Jeffrey Ray appeals his sentence of twenty years to life for second-degree murder, which was imposed after a contested sentencing hearing following a plea agreement reducing the charge from first-degree murder. On appeal, he argues that the sentencing court erred in finding the victim, Richard Vreeland, to be "particularly vulnerable" based solely on his being unarmed and within shooting range of defendant. The State contends that any error in sentencing did not rise to the level of plain error. We affirm.

¶ 2. Evidence presented to the court at the three-day sentencing hearing established the following. Defendant was previously married for eighteen years to the victim's widow, Brenda Vreeland. She filed for divorce from defendant, and shortly thereafter, met the victim. The two began a relationship and were married. They spent part of their marriage in defendant's former marital home, and the victim became stepfather to defendant's and the victim's wife's children. Defendant often claimed that the victim had taken his family and his land from him, and he held a grudge against the victim for many years.

¶ 3. On May 25, 2015, defendant was living in a camper on his daughter's property in Brownington, a short distance from his former home where the victim and the victim's wife were then residing. Defendant had been drinking heavily the day before and continued to do so upon waking up that morning. He wrote a letter threatening to press charges against the victim over a dispute involving a quitclaim deed, and he drove to the victim's property to deliver it. Upon arriving, he put the letter in the victim's mailbox and, instead of backing out of the driveway, drove his truck in a loop around the victim's lawn before leaving to return to his daughter's house. The victim had been watching from inside the house and immediately got into his own truck to follow defendant, bringing with him a baseball bat. At the victim's wife's urging, defendant's son accompanied the victim.

¶ 4. Defendant was still sitting in his truck in his daughter's driveway when the victim pulled up behind him. The victim immediately exited his vehicle and began walking toward defendant, holding only a lit cigarette in his hand—the baseball bat remained in his vehicle. At that point, defendant grabbed a handgun that was sitting in the passenger's seat of his truck and fired a single shot at the victim, hitting him from a distance of about twenty feet. The victim fell to the ground and died within minutes. At the time of the shooting, defendant was heavily intoxicated.

¶ 5. Defendant pleaded guilty to second-degree murder. Under the terms of his plea agreement, the State was capped at arguing for a sentence of twenty-five years to life, with the defense free to argue for twenty years to life, all suspended except for ten years, with lifetime probation supervision. At the conclusion of the sentencing hearing, the court sentenced defendant to twenty years to life. In its explanation, the court cited 13 V.S.A. § 2303(c), which states thatthe presumptive punishment for second-degree murder is twenty years to life, but that a court may impose a sentence above or below that length of time based on the jury's weighing of aggravating and mitigating factors.¹ The court specifically mentioned four aggravating factors that it considered in arriving at defendant's sentence: his use of a firearm when it was prohibited by virtue of a relief-from-abuse (RFA) order; his contact and abuse of the victim and his family, also in violation of the RFA; the high degree of hatred and premeditation associated with the crime; and the victim's "particular vulnerability." It also cited one mitigating factor, which it deemed "substantial": defendant's alcohol abuse. In addition, the court referenced the various common-law purposes of sentencing—punishment, rehabilitation, general and specific deterrence, and incapacitation—to justify its sentence.

¶ 6. Defendant contends that the trial court erred in holding that the victim was "particularly vulnerable," that this error prejudiced his sentence, and that the sentence must be vacated and the case remanded for a new sentencing. We generally review sentencing decisions for an abuse of discretion. State v. Lumumba, 2014 VT 85, ¶ 22, 197 Vt. 315, 104 A.3d 627. However, if the appellant fails to object to his or her sentence at the time of sentencing, as in this case, the Court will vacate that sentence only upon a finding of plain error. State v. Koons, 2011 VT 22, ¶ 11, 189 Vt. 285, 20 A.3d 662.² Plain error requires a showing that (1) there was error, (2) the error is obvious, (3) the error affects the substantial rights of and results in prejudice to the defendant, and (4) the error "seriously affects the fairness, integrity or public reputation of judicialproceedings." Id. (quotation omitted). "This is a very high bar—we find plain error only in rare and extraordinary circumstances." State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285. Here, even assuming there was error, that error did not result in prejudice to the defendant. Thus, there was no plain error.³

¶ 7. Vermont courts have broad discretion in sentencing. State v. Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428, 852 A.2d 567. Nonetheless, under this State's statutes and common law, there are factors sentencing courts must consider in determining a sentence. For instance, under 13 V.S.A. § 7030(a), the sentencing court must take into account "the nature and circumstances of the crime, the history and character of the defendant, the need for treatment, and the risk to self, others, and the community at large presented by the defendant" in determining the sentence to impose.⁴ Courts may also consider factors in addition to those explicitly listed in § 7030(a),including but not limited to "[t]he defendant's background, . . . family, past conduct and . . . propensities." Sullivan, 2018 VT 112, ¶ 7; see also State v. Harrington, No. 2017-116, 2018 WL 374641, at *2 (Vt. Jan. 8, 2018) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo17-116.pdf [https://perma.cc/3F53-5YCS] (noting trial court's balancing of aggravating and mitigating factors, including victim's vulnerability, during sentencing). Finally, in crafting a sentence, courts should consider common-law factors such as the need for punishment, prevention, rehabilitation, incapacitation, and general and specific deterrence, although they are not required to address each factor explicitly. See Sullivan, 2018 VT 112, ¶ 8 ("The court must ground its [sentencing] decision on legitimate goals of criminal justice, including [] punishment, prevention, rehabilitation, and deterrence." (quotation omitted)); State v. Webster, 2017 VT 98, ¶ 46, 206 Vt. 178, 179 A.3d 149 (noting trial court's focus on common-law sentencing factors such as "general deterrence, retribution, incapacitation, and punishment"); State v. Allen, 2010 VT 47, ¶ 14, 188 Vt. 559, 1 A.3d 1003 (mem.) ("While the court should ground its decision on legitimate goals of criminal justice, including such purposes as punishment, prevention, rehabilitation, and deterrence, the court is not obligated to explicitly address each factor." (citation omitted)).

¶ 8. Defendant does not claim on appeal that the sentencing court failed to consider any of the required statutory or common-law factors, and the record does not support such a claim. His only contention is that the court's consideration of particular vulnerability was plain error. This Court has never defined "particular vulnerability,"⁵ and we decline to do so here. Rather, weassume without deciding that the victim was not particularly vulnerable and that the sentencing court therefore erred in labeling him as such. Applying the plain-error standard of review, we then conclude that, even had such an error occurred, as required under the first prong of that test, and even had it been obvious, as required under the second prong, any error did not affect defendant's substantial rights or result in prejudice to him, and thus he cannot satisfy the third prong of the test. See Koons, 2011 VT 22, ¶ 11 (listing four prongs of plain-error test).

¶ 9. As we have noted, where the issue was not objected to below, this Court reviews a trial court's improper consideration of an aggravating factor in sentencing under the plain-error standard. However, our consideration of whether such an error substantially affected defendant's rights in cases where we have applied the abuse-of-discretion standard and harmless-error doctrine aids our analysis here. This Court's discussions of error in State v. Gibney, 2003 VT 26, ¶ 53, 175 Vt. 180, 825 A.2d 32, and Bacon, 169 Vt. at 273, 733 A.2d at 54, are particularly useful.

¶ 10. We have previously held that when a reviewing court concludes that the trial court's erroneous consideration of an aggravating factor had no effect on the defendant's sentence—in other words, that there was an "independent basis" for imposing the sentence the court chose—then the error has not affected the...