State v. Ritter
| Decision Date | 10 April 1998 |
| Docket Number | No. 96-288,96-288 |
| Citation | 167 Vt. 632,714 A.2d 624 |
| Parties | STATE of Vermont v. Aaron RITTER. |
| Court | Vermont Supreme Court |
Before DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
Defendant Aaron Ritter appeals his dual convictions of second-degree aggravated domestic assault (13 V.S.A. § 1044). He argues that the trial court's decision permitting a single act that violates both § 1044(a)(1) and § 1044(a)(2) to be punished as separate crimes impermissibly infringes his right against double jeopardy. We agree and vacate one of the two convictions and remand for resentencing.
On the morning of October 8, 1995, defendant and his girlfriend had an argument. Angered that his girlfriend had been out late the previous night, defendant hit and kicked her while she was lying on a couch in the living room. Defendant's sister stopped the fight and brought the victim to a relative's house, where she complained that her ribs hurt and exhibited symptoms consistent with rib injury.
At the time of the attack, defendant was subject to a restraining order previously obtained by his girlfriend. In addition, defendant had a prior conviction for domestic assault and was subject to a conditional release order, also preventing him from having contact with his girlfriend.
Defendant was charged with numerous offenses arising out of the attack, including two counts of second-degree aggravated domestic assault. Prior to trial, defendant moved to merge the two counts of second-degree aggravated domestic assault, arguing that they violated the rule against multiplicity and defendant's right against double jeopardy. The State agreed that if the trial resulted in convictions under both counts, the convictions should merge. The trial court granted defendant's motion, ordering that if the jury returned guilty verdicts on both charges the State would be required to elect between them. Approximately one week later, however, the court announced that it had reconsidered its prior decision and concluded that it was permissible to convict defendant under both counts.
Defendant was subsequently convicted of violating an abuse prevention order and two counts of second-degree aggravated domestic assault. At the sentencing hearing both defendant and the State argued for the imposition of concurrent sentences for the two aggravated domestic assault convictions and the conviction for violating the abuse prevention order. Nevertheless, the trial court imposed consecutive sentences on all three counts.
Defendant argues that the trial court violated his right against double jeopardy by permitting his dual convictions of second-degree aggravated domestic assault. The Double Jeopardy Clause provides that no person may "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend, V. This provision has been incorporated into the Fourteenth Amendment and applies to the states. See Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). "When a defendant is tried in a single trial for two statutory offenses that criminalize the same conduct, whether or not a conviction and sentence may be had under each statute is a question of legislative intent, not constitutional prohibition." State v. Grega, --- Vt. ----, ----, 721 A.2d 445, ---- (1998): accord Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). The Legislature may punish the same conduct under two or more statutory provisions, but its intent to do so must be clear. See Grega, --- Vt. at ----, 721 A.2d at ----: Hunter, 459 U.S. at 367, 103 S.Ct. 673. When it is not, we apply as a rule of statutory construction the test first enunciated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under this test, two offenses are considered the same offense for double jeopardy purposes unless "each provision requires proof of a fact the other does not." Id.
The proper inquiry in the instant case is whether the Legislature intended for a single act of domestic assault, committed under two separate aggravating circumstances, to be punished by two separate convictions of second-degree aggravated domestic assault. The second-degree aggravated domestic assault statute provides that:
A person commits the crime of second degree aggravated domestic assault if the person:
(1) commits the crime of domestic assault and causes bodily injury to another person and such conduct violates specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person; or
(2) commits a second or subsequent offense of domestic assault, which causes bodily injury.
13 V.S.A. § 1044(a).
The statute does not specifically provide for cumulative punishment. Nevertheless, each offense requires proof of a fact that the other does not. Second-degree aggravated domestic assault under § 1044(a)(1) requires proof that the domestic assault violates an order of protection, while § 1044(a)(2) requires proof of a prior conviction for domestic assault. The offenses are not the same under the Blockburger test. Therefore, the Legislature is presumed to have authorized...
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State v. Nelson
...in question— § 3253(a)(9) and § 3252(d) —"because each subsection is presumed to define a distinct crime." State v. Ritter, 167 Vt. 632, 633, 714 A.2d 624, 625 (1998) (mem.). "The Blockburger presumption may be overcome ... by a ‘clear indication of contrary legislative intent.’ " Grega, 16......
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U.S. v. McLaughlin
...and attempted manslaughter provisions were inappropriate, given common purpose of both to deter assaultive-type conduct); State v. Ritter, 714 A.2d 624, 626 (Vt.1998) (holding that two aggravated domestic assault provisions which pass Blockburger test were nonetheless intended merely to def......
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State v. Hazelton
...and sentence may be had under each statute is a question of legislative intent, not constitutional prohibition." State v. Ritter, 167 Vt. 632, 632, 714 A.2d 624, 625 (1998) (mem.) (quoting State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998)). "[W]e apply as a rule of statutory constr......
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State v. Nelson
...in question—§ 3253(a)(9) and § 3252(d)—"because each subsection is presumed to define a distinct crime." State v. Ritter, 167 Vt. 632, 633, 714 A.2d 624, 625 (1998) (mem.). "The Blockburger presumption may be overcome . . . by a 'clear indication of contrary legislative intent.' " Grega, 16......