State v. Saari, s. 86-511

• Decision Date: 15 September 1989
• Docket Number: 86-512,Nos. 86-511,s. 86-511
• Citation: 152 Vt. 510,568 A.2d 344
• Parties: STATE of Vermont v. Trent SAARI. STATE of Vermont v. Patrick BRANCH.
• Court: Vermont Supreme Court

Page 344

568 A.2d 344

152 Vt. 510

STATE of Vermont v. Trent SAARI.

STATE of Vermont v. Patrick BRANCH.

Nos. 86-511, 86-512.

Supreme Court of Vermont.

Sept. 15, 1989.

Shelley A. Hill, Windsor County State's Atty., White River Junction, for plaintiff-appellant.

Walter M. Morris, Jr., Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for amicus curiae.

Before ALLEN, C.J., and PECK, GIBSON, ¹ DOOLEY and MAHADY, JJ.

PECK, Justice.

In this appeal, the State consolidated two misdemeanor cases, one a driving offense and the other a simple assault on a police officer. In each case, the trial judge ignored the minimum sentence mandated by the legislature, and imposed a lesser sentence, finding that the statutory minimum sentences violated the proportionality clause of Vermont's constitution and violated defendants' rights to allocution. The State filed motions to reconsider the sentences, but the trial court denied the motions. The State appeals from the denial of these motions. We consider the issue as a petition for extraordinary relief and deny the relief requested, although we conclude the trial court's actions were erroneous.

Defendant Saari pled guilty to driving with a suspended license, in violation of 23 V.S.A. § 674(a). The suspension was based on an earlier conviction for driving while under the influence (DUI). Although 23 V.S.A. § 674(c)(1) mandates a two-day minimum sentence for such an offense, the court imposed a 0-30 day sentence, all suspended. Defendant Branch pled nolo contendere to simple assault on a police officer, in violation of 13 V.S.A. § 1028, and to two other misdemeanors. The court imposed identical and concurrent sentences of 0-3 months, all suspended, and placed the defendant on probation. The relevant statute, however, mandates a minimum thirty-day sentence for simple assault on a police officer. 13 V.S.A. § 1028(a)(1).

Because important issues were raised in these appeals and defendants appeared pro se and did not file a brief in this Court, we requested the Defender General to submit a brief as amicus curiae in support of the trial court decisions. We appreciate the Defender General's response to our request.

I. Jurisdictional Issues

In filing its appeal, the State relies on V.R.A.P. 4(9) as reflecting, if not creating, a right in the State to appeal the trial court's denial of its motions to modify the sentences. Amicus argues that the State's motion to reconsider sentence in State v. Saari should have been denied as untimely and no appeal to this Court allowed. Defendant Saari was sentenced on July 15, 1986. The State filed a motion to reconsider sentence on July 24, 1986, nine days after imposition of sentence. The State is required, under 13 V.S.A. § 7042(b), to file a motion to reconsider within seven days of imposition of sentence. We note, however, that the State's notice of appeal in each action was filed on August 2, 1986, within thirty days of the sentences, and was timely. V.R.A.P. 4. The timeliness of the post-conviction motion is insignificant in this instance, given our characterization of the appeal as a petition for extraordinary relief, and we will not, on those grounds, dismiss the case.

While it is true that V.R.A.P. 4(9) refers to an appeal of an order granting or denying a motion to modify a criminal sentence, as attempted here, the purpose of the provision is to set time limitations for filing notices of appeal, not to create rights of appeal in either party. V.R.A.P. 4 is the procedural framework for appeals "permitted by law as of right." The sole legal authority for criminal appeals by the prosecution to this Court under Rule 4 is provided in 13 V.S.A. § 7403. At one time, § 7403 provided only for interlocutory appeals, in both felony and misdemeanor cases, and then only on the condition that the State's exceptions were "allowed and placed upon the record before final judgment." 13 V.S.A. § 7403 (1947). These limitations reflected the protections of the double jeopardy clause. State v. Velander, 123 Vt. 60, 61, 181 A.2d 60, 61 (1962). In 1982, the opportunity for the State to appeal in felony cases was expanded by a revision of the statute which differentiated between misdemeanors and felonies. 13 V.S.A. § 7403. The limitations on the State's ability to appeal final rulings in misdemeanor cases remains the same: only interlocutory appeals are allowed. Neither the sentence nor the decision on a motion to reconsider sentence are prejudgment, interlocutory orders. Thus appeals by the State in Saari and Branch are not allowed by the statute.

If the State's attempted appeal ran afoul of the double jeopardy clause of the United States Constitution, we would look no further to exercise jurisdiction. There is, however, no constitutional bar to the State's appeal of a sentence it believes is beyond the lawful authority of the trial court. United States v. DiFrancesco, 449 U.S. 117, 136, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980) ("The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence.").

Although no statute confers appellate jurisdiction in this case, the State may avail itself of our jurisdiction through a petition for extraordinary relief. V.R.A.P. 21. Extraordinary relief provides the proper avenue for redress where no other relief exists. Crabbe v. Veve Assoc., 145 Vt. 641, 643, 497 A.2d 366, 368 (1985).

Among the writs consolidated in the extraordinary relief rule is mandamus, see V.R.A.P. 21(a), which "will lie for the enforcement of a purely ministerial act, that is, an act 'regarding which nothing is left to discretion....' " Bargman v. Brewer, 142 Vt. 367, 369, 454 A.2d 1253, 1255 (1983). Vermont courts have not had occasion to use mandamus to review a sentencing order; such orders are traditionally within the court's discretion. V.R.Cr.P. 32, 35.

Mandamus is appropriately invoked " 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so'.... [but] only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) (mandamus denied; improper review of discovery order requested) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943), and De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566 (1945)); see also Ex parte United States, 242 U.S. 27, 39-40, 37 S.Ct. 72, 73, 61 L.Ed. 129 (1916); United States v. Denson, 588 F.2d 1112, 1129 (5th Cir.1979) (court denied review of sentence brought by petition for writ of mandamus); United States v. Hundley, 858 F.2d 58, 66 (2d Cir.1988) (motion to set aside sentence denied). We hold that the trial court stepped outside its authority by rejecting the applicable sentencing statute. Therefore, extraordinary relief in the nature of mandamus is an appropriate vehicle for review. See Roche v. Evaporated Milk Ass'n, 319 U.S. at 26, 63 S.Ct. at 941 (considerations guiding judicial discretion in use of mandamus include whether act was within trial court's jurisdiction or tended to thwart appellate review of ruling); United States v. Jackson, 550 F.2d 830, 831 (2d Cir.1977) (petition for mandamus granted to review sentence and case remanded).

A petition for extraordinary relief is normally presented to this Court with an allegation, supported by affidavit, stating that no adequate remedy is available through the superior court. V.R.A.P. 21(b); see Reed v. Department of Public Safety, 137 Vt. 9, 11, 398 A.2d 301, 303 (1979). This was not done here. But this Court may, on its own motion, "suspend the requirements or provisions of any of these rules in a particular case" for good cause. V.R.A.P. 2; see In re Smith, 131 Vt. 24, 25, 298 A.2d 823, 825 (1972). We will do so here because of the importance of the issue and because no further facts are necessary in order to consider the merits of the issues raised.

II. Proportionality of Statutory Minimum Sentences

The argument proffered by amicus, and suggested by the trial court's ruling, is that minimum sentences are disproportionate per se and thereby violate the Vermont Constitution. Vt. Const. ch. II, § 39. When this issue was raised sua sponte by the trial court, it did not suggest on what basis the statute is disproportionate. Amicus refers to the fact that some crimes, considerably more heinous than driving with a suspended license, have no required jail sentence. ² See Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637 (1983) (federal disproportionality test includes consideration of other sentences imposed within the jurisdiction). We do not take that fact, alone, as evidence that the statutes are unconstitutional. The legislature is entitled to make incremental changes in the statutes of this state, including the sentencing structure. See State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 265, 448 A.2d 791, 793 (1982) (regulatory legislation is not unconstitutional where "unbalanced impact is ... a necessary consequence of the most reasonable way of implementing that policy"). "The peace of the State and the welfare of [the] community often require the Legislature to create new offenses and to prescribe fines for their punishment, and to alter fines already prescribed." State v. Constantino, 76 Vt. 192, 196, 56 A. 1101, 1101 (1904). ³ The severity of the sentence for any given crime is meant to be an amalgam of "public attitudes ... history and precedent, legislative attitudes, and the response of [previous] juries." Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977).

Furthermore, this claim seems not to fall squarely under the tripartite federal test for gross disproportionality. See State v. Venman...