State v. Sommer, 09–417.

• Docket Nº: No. 09–417.
• Citation: 2011 VT 59, 27 A.3d 1059
• Case Date: August 01, 2011
• Court: United States State Supreme Court of Vermont

27 A.3d 1059
2011 VT 59

STATE of Vermont
v.
Gregory SOMMER.

No. 09–417.

Supreme Court of Vermont.

May 27, 2011.Motion for Reargument Denied Aug. 1, 2011.

[27 A.3d 1060]

William H. Sorrell, Attorney General, Montpelier, and Emily A. Carr, Assistant Attorney General, Waterbury, for Plaintiff–Appellee.Matthew F. Valerio, Defender General, and Seth Lipschutz, Prisoners' Rights Office, Montpelier, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.DOOLEY, J.

¶ 1. Defendant Gregory Sommer appeals from the trial court's dismissal of his motion requesting sentence reconsideration and seeking a court order that the Vermont Department of Corrections (DOC) apply credit to his sentence for the time he spent incarcerated while awaiting sentencing. The court dismissed the motion for lack of jurisdiction. Defendant argues that the trial court did not lack jurisdiction over the motion and should have reached the legal issue in this case and awarded him presentence credit. We hold that defendant was premature in bringing his request to the court before the DOC Commissioner had issued an official sentencing calculation. Furthermore, we conclude that defendant's argument regarding credit fails on the merits. Accordingly, we affirm.

¶ 2. On April 8, 2008, defendant was serving a prior sentence (first sentence) when he was arraigned on eleven different counts of burglary, attempted burglary, unlawful mischief, and larceny, and held on $100,000 bail. Defendant's first sentence is a minimum of twelve months and fourteen days and a maximum of eight years. Before his arraignment on the new charges, defendant had completed the minimum on his first sentence and was serving his “remaining sentence in the community” pursuant to 28 V.S.A. § 723. After arraignment, the court revoked defendant's community status and incarcerated him for thirteen months between arraignment and sentencing. On May 11, 2009, as the result of a plea agreement, the court sentenced defendant on five of the new counts to six to twelve years to run concurrently (second sentence). The State dismissed the remaining six counts. This second sentence was imposed consecutive to defendant's first sentence. Defendant requested that the DOC give him credit toward his second sentence minimum for thirteen months during which he was incarcerated—the time from his arraignment on April 8, 2008, to his sentencing on May 11, 2009.

¶ 3. On September 3, 2009, before the DOC officially ruled on defendant's request, defendant filed a motion requesting that the trial court order the DOC to provide the credit he sought or, in the

[27 A.3d 1061]

alternative, to reduce the minimum term of his second sentence by thirteen months. The trial court dismissed the motion for lack of subject matter jurisdiction, holding:

Determinations regarding credit are the province of DOC. 13 V.S.A. § 7044. If Defendant disputes DOC's calculations, he may file a grievance with the commissioner and thereafter seek review in superior court under V.R.C.P. 75. State v. Young, 181 Vt. 603, 925 A.2d 1016 (2007); see also Martel v. Lanman, 171 Vt. 547, 759 A.2d 65 (2000). The District Court does not have subject matter jurisdiction to address the issue raised here. Accordingly, this motion is dismissed for lack of jurisdiction.

This appeal followed.

¶ 4. On appeal, defendant argues that the trial court erred in dismissing his motion because it presented a legal question and the court therefore had jurisdiction, and that he is entitled to thirteen months presentence credit against his second sentence minimum because he had an effective zero minimum requirement on his first sentence when the court arraigned him on charges related to his second sentence. We affirm the trial court's dismissal of defendant's motion because he was premature in filing for district court review before the DOC had issued the Commissioner's calculation under 13 V.S.A. § 7044. At the same time, we explain in more detail the options the court had in responding to the motion. Ultimately, we hold that defendant's argument fails on the merits because precedent from this Court has already decided the legal question at issue and does not support defendant's position.

¶ 5. The principal question here is whether defendant properly pursued relief prior to a decision from the DOC. Whether a court has subject matter jurisdiction is a question of law, and we review questions of law de novo. Office of Child Support v. Sholan, 172 Vt. 619, 620, 782 A.2d 1199, 1202 (2001) (mem.).

¶ 6. Defendant claims that the trial court erred in dismissing his motion for lack of jurisdiction and in deferring to the DOC. He argues that awarding credit for presentence incarceration under § 7031(b) is a legal determination for the sentencing court and that his motion should not have been dismissed for lack of jurisdiction. We disagree and conclude that, whether defendant's motion presented a legal issue, the trial court acted within its discretion in dismissing it. Under 13 V.S.A. § 7044(a), in all cases where the court imposes a sentence that includes incarceration, the Commissioner of Corrections must provide the court and the Defender General with a calculation of “the potential shortest and longest lengths of time the defendant may be incarcerated taking into account the provisions for reductions of term ... based on the sentence or sentences the defendant is serving, and the effect of any credit for time served as ordered by the court pursuant to 13 V.S.A. § 7031.” 13 V.S.A. § 7044(a). The Commissioner's calculation for defendant's second sentence had not been issued when he filed his motion in the trial court. The court, therefore, had not yet received all the facts necessary to make a determination about whether defendant should receive credit.¹

[27 A.3d 1062]

Whether or not the court has jurisdiction over the credit issue here, defendant's motion was premature, and the court acted within its discretion in deferring to the DOC.

¶ 7. The governing precedent for determining the options of the trial court is State v. Young, 2007 VT 30, 181 Vt. 603, 925 A.2d 1016 (mem.). Young is based on facts similar to those before us in this case. The decision attempts to reconcile the Commissioner's responsibility to...