State v. Rice

• Decision Date: 17 August 1984
• Docket Number: No. 83-311,83-311
• Citation: 145 Vt. 25,483 A.2d 248
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Rodney Lew RICE.

Page 248

483 A.2d 248

145 Vt. 25

STATE of Vermont v. Rodney Lew RICE.

No. 83-311.

Supreme Court of Vermont.

Aug. 17, 1984.

[145 Vt. 27] Ralph H. Sheppard, Bennington County Deputy State's Atty., Bennington, for plaintiff-appellee.

David A. Gibson, E. Bruce Weber and Jane K. Mills, Brattleboro, on the brief of Weber, Perra & Gibson, Brattleboro, for defendant-appellant.

Before BILLINGS, C.J., HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

The Sentence Review Act, 13 V.S.A. § 7042, as amended by No. 223 of the Acts of 1981 Adjourned Session, permits the State, within seven days of the imposition of an initial sentence, to file with the sentencing judge a motion to increase that sentence. Id. § 7042(b). After a hearing the judge, in his discretion, is empowered to increase the severity of the initial sentence. Id. Defendant, who was given an enhanced sentence, raises two constitutional issues in this appeal. The first is whether the trial judge's application of § 7042(b) violates the double jeopardy clause of the Fifth Amendment of the United States Constitution by increasing defendant's initial sentence. The second issue is whether the trial judge, by admitting testimony at the sentence review hearing of alleged but unproven crimes, violated the defendant's rights under the due process clause of the Vermont Constitution (Chapter I, Article 10).

Defendant was initially charged in Vermont District Court, Unit 1, Bennington Circuit, with lewd and lascivious conduct with a nine-year-old child, 13 V.S.A. § 2602, and with sexual assault, 13 V.S.A. § 3252. On the day of trial, the defendant and the State entered into a plea bargain agreement wherein defendant, who consistently maintained he was innocent of the charges, agreed to enter an "Alford" type plea ^* of nolo contendere to the single crime of lewd and lascivious conduct, and in exchange the State agreed to nol pros the charge of At the sentencing hearing on April 27, 1983, the defendant continued to protest his innocence. The State argued for a term of imprisonment of not less than two nor more than five years to be served but offered no evidence; defense counsel argued for a lesser sentence. Upon consideration of the oral arguments of counsel and the presentence investigation report and recommendation of the Corrections Department, the judge imposed a sentence of not less than four nor more than five years. He suspended the sentence, however, and placed the defendant on probation, subject to special conditions in addition to those conditions usually imposed upon probationers. The special conditions were: that the defendant "undergo mental health or psychological evaluations and testing and such counselling and therapy that may be recommended as a result of that testing, that [the defendant] shall not participate in any organizations that involve activities with teen or preteen females, and that there not be present overnight in [the defendant's] home preteen or teenage females other than immediate members of [the defendant's] family."

sexual [145 Vt. 28] assault and to recommend a sentence of not less than two years nor more than five years to be served. The defendant, under the terms of the agreement, was free to argue for a lesser sentence, and a presentence investigation report was to be ordered.

Five days later, by a motion dated May 2, 1983, the State moved the court, pursuant to 13 V.S.A. § 7042(b), to increase the initial sentence. Over the defendant's objection, and following an evidentiary hearing, the judge who issued the initial sentence granted the State's motion, vacated the initial sentence and resentenced the defendant to a term of not less than two nor more than five years to be served.

I. CLAIM OF DOUBLE JEOPARDY

The provision of our Sentence Review Act which is pertinent to this appeal is 13 V.S.A. § 7042(b), which provides:

A state's attorney or the attorney general, within seven days of the imposition of a sentence, may file with the sentencing judge a motion to increase, reduce or otherwise modify the sentence. This motion shall set forth reasons why the sentence should be altered. After hearing, the court may confirm, increase, reduce or otherwise modify the sentence.

At this point we should be mindful of the basic design of the double jeopardy provision, which has been aptly summarized as follows:

That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (emphasis added).

As recently as April 1984, relying upon the United States Supreme Court decision of United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), we held in State v. Boyer, 144 Vt. 393, 481 A.2d 15 (1984), that the trial court on motion of the State had jurisdiction under § 7042(b) to increase the defendant's initial sentence and that such action by the court did not thereby place the defendant in double jeopardy. In Boyer the defendant was convicted on his pleas of nolo contendere of the crimes of careless and negligent operation of a motor vehicle, 23 V.S.A. § 1091(a), and of attempting to elude a police officer, 23 V.S.A. § 1133. The sentence imposed by the court for these two offenses was suspended, except for fifteen days to serve, and defendant was fined $250. Defendant had already begun serving his sentence when the State, pursuant to 13 V.S.A. § 7042(b), filed a motion for sentence review on the ground that the State and the court at the time of sentencing were unaware of a prior conviction of the defendant for driving while under the influence of intoxicating liquor in which a fatality had occurred.

Defendant had served four consecutive weekends of his initial sentence when the court granted the State's motion and increased the sentence. On one count it meted out a term of sixty to ninety days to serve, and on the other count a term of four to six months to serve; but the sentences were ordered to be served concurrently. It also increased the fine to $350.

We held in Boyer that the ruling in United States v. DiFrancesco, supra, controlled, and that the double jeopardy clause did not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment would turn out to be. As the DiFrancesco court pointed out, "[defendant's] legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked." Id. 449 U.S. at 137, 101 S.Ct. at 437.

Substantively we are bound by federal constitutional law as to defendant's claim of double jeopardy. Although 13 V.S.A. § 7042(b) appears to emit an aura of multiple punishment for a single offense, this is a mirage. We conclude therefore that the holding in DiFrancesco, as applied in Boyer, is controlling here and that defendant suffered no double jeopardy by reason of the increased sentence imposed.

II. CLAIMS OF DUE PROCESS VIOLATIONS UNDER CHAPTER I, ARTICLE 10, VERMONT CONSTITUTION

Defendant's second contention is that the trial judge violated his due process rights under the Vermont Constitution (Chapter I, Article 10) at the sentence review hearing when he permitted two witnesses for the State to testify that the defendant had engaged in long term prior criminal sexual activity with each of them, and also when he admitted into evidence as a State exhibit twenty-two petitions signed by 572 persons indicating that they "[found] it highly offensive that persons convicted of this type of crime which Mr. Rice has committed remain free in our community posing a danger to other young citizens."

A.

The pertinent provision of the due process clause of the Vermont Constitution provides:

Article 10th. That in all prosecutions for criminal offenses, a person hath a right ... to be confronted with the witnesses ....

Chapter I, Article 10.

Over defendant's objection, two young ladies were permitted to testify for the State that defendant had engaged in a variety of sexual activity with each of them over a number of years while each was still a minor. This testimony, however, was not hearsay, and thus defendant's reliance upon our holding in State v. Williams, 137 Vt. 360, 364-65, 406 A.2d 375, 377 (1979), is misplaced. In Williams, as in the case at bar, the defendant was charged with lewd and lascivious conduct with a minor child in violation of 13 V.S.A. § 2602. He waived jury trial. The court found him guilty and sentenced him. At the sentence hearing "there was placed before the trial court hearsay information about criminal activities of a sexually deviant nature on the part of the defendant for which he had never been charged, tried or convicted." Id. at 364, 406 A.2d at 377 (emphasis added).

The defendant in Williams objected to such information, but the trial judge indicated that he would not view it with an eye to enhancement of any sentence but rather as information relating to the defendant's propensities and to the type of sentence that would best address the defendant's problems. Chief Justice Barney speaking for the Court stated:

consistency with the basic concerns of criminal justice compel us to prohibit, even in sentencing proceedings, the use of mere assertions of criminal activities in any way in aid of determining disposition.

Id. (Emphasis added.)

In the case before us each of the two female witnesses who testified for the State claimed to be the victim of defendant's alleged criminal conduct. Thus, their testimony did not constitute impermissible hearsay...