State v. Sullivan

• Decision Date: 19 October 2018
• Docket Number: No. 17-299,17-299
• Citation: 200 A.3d 670
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Christopher P. SULLIVAN

200 A.3d 670

STATE of Vermont

v.Christopher P. SULLIVAN

No. 17-299

Supreme Court of Vermont.

June Term, 2018

October 19, 2018

David Tartter, Special Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.) and Morris, Supr. J. (Ret.), Specially Assigned

REIBER, C.J.

¶ 1. Defendant requests that the Court vacate his sentence and remand for resentencing with a different judge. This is defendant's second appeal following his convictions for operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting and for leaving the scene of a fatal accident. We affirm.

¶ 2. In the first appeal, State v. Sullivan, 2017 VT 24, ¶¶ 2-4, 204 Vt. 328, 167 A.3d 876, we summarized the following facts:

On April 10, 2013, defendant consumed six or seven alcoholic beverages between the hours of five and seven forty-five in the evening. At seven forty-five, defendant drove south on Strongs Avenue in Rutland at a speed of between twenty-two and thirty miles per hour. It was dusk, and a light rain was falling. Also at this time, the victim, a seventy-one-year-old woman wearing a cream-colored coat and walking with the assistance of two canes, began crossing Strongs Avenue with a friend from east to west in front of the Palms Restaurant, having looked in both directions before starting across the street. The victim walked at an estimated pace of between one-and-one-half-to-three feet per second. She was not in a crosswalk and defendant's car came upon her before she was able to cross the road. Just before the car struck her, the victim's friend called out in warning and the victim turned and raised both of her canes. Without braking or swerving, defendant's car struck the victim in the travelled portion of Strongs Avenue. The victim was thrown onto the hood of defendant's vehicle and into the windshield before landing in the street. Defendant continued driving without slowing down. He later told police that he had no idea who or what he hit, that he panicked and was unsure what to do, and that he continued driving to the Hannaford's parking lot. When defendant got out of his vehicle he saw damage to the hood and a shattered windshield. His rear-view mirror was detached, and there were shards of glass on the passenger seat.

From the parking lot, defendant called his law partner, who informed him that an ambulance had arrived at the scene in front of the Palms Restaurant. In a subsequent phone call, defendant's partner informed him that the victim had been pronounced dead at the hospital as a result of blunt-force trauma to her torso. Defendant spoke to his law partner again later that night, as well as to defense counsel. He made no effort to contact the police that night. Defendant had planned to pick up his son, but instead called his son from the Hannaford's parking lot and told him, untruthfully, that he had been delayed by a work obligation.

The next day defendant went to the police station with his attorney to give a statement. He told police of his activities the preceding night, including the amount and time of his alcohol consumption. He also told police that he had been driving thirty miles per hour and did not see the victim in the street before the accident.

¶ 3. The State charged defendant with DUI with death resulting, in violation of 23 V.S.A. § 1201(a)(2) and § 1210(f)(1), which prescribes a maximum $10,000 fine and/or imprisonment for a minimum term of one year and a maximum of fifteen years. Id. § 1210(f)(1). The State also charged defendant with leaving the scene of a fatal accident, in violation of 23 V.S.A. § 1128(a) and (c). This crime carries a mandatory minimum term of imprisonment of one year and a maximum of fifteen years and/or a $3,000 fine. Id. § 1128(c).

¶ 4. A jury found defendant guilty of both charges. The trial judge sentenced defendant to two concurrent four- to ten-year terms. Defendant appealed. Sullivan, 2017 VT 24, ¶ 1, 204 Vt. 328, 167 A.3d 876. We affirmed defendant's convictions but remanded for resentencing. Id. We held the trial court had "abused its discretion by not continuing the sentencing hearing to allow defendant to present the testimony of his expert witness." Id. On remand, the same trial judge held a resentencing hearing in August 2017. After considering evidence from the first sentencing hearing and additional evidence, the trial judge reimposed two concurrent sentences of four to ten years, with credit for time served.

¶ 5. Defendant's core challenge on appeal is that the trial court did not have discretion to impose that sentence. He bases his challenge on two general arguments. First, defendant argues that the record does not support the sentence. More specifically, defendant contends (a) that the court did not have discretion to impose a minimum sentence above the statutory mandatory minimum absent a showing of aggravating factors; (b) to the extent the court's findings support aggravating factors, those findings are incorrect and insufficient to support the sentence; and (c) the court abused its discretion in dismissing defendant's mitigating evidence. Second, defendant argues the trial judge's sentencing decision and process were driven by an impermissible personal animus against defendant.

I. The Sentencing Court's Discretion

¶ 6. Because all the arguments in this case center on the trial court's discretion in imposing sentence, it is helpful to address at the outset the scope of a sentencing court's authority. "Sentencing is solely the function of the trial judge ...." State v. Lumumba, 2014 VT 85, ¶ 22, 197 Vt. 315, 104 A.3d 627. The trial court's goal is to fashion an individualized sentence that is fair and just according to all the facts and circumstances of that unique case. See id. ¶ 23 ("Vermont has adopted a situational sentencing scheme whereby the court tailors the punishment within the statutory range to fit the defendant in question."); see also Gall v. United States, 552 U.S. 38, 52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ("It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." (quotation omitted) ).

¶ 7. Accordingly, it is appropriate for the sentencing court to consider a wide range of factors in determining a sentence. State v. Scott, 2013 VT 103, ¶ 20, 195 Vt. 330, 88 A.3d 1173. These factors include "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." 13 V.S.A. § 7030(a) (requiring sentencing court to consider these factors). They also include, among others, "[t]he defendant's background, his family, past conduct and his ... propensities," State v. Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428, 852 A.2d 567, and the "defendant's refusal to accept how his actions harmed the victim," State v. Allen, 2010 VT 47, ¶ 14, 188 Vt. 559, 1 A.3d 1003 (mem.).

¶ 8. In keeping with the court's role in fashioning an appropriate, individualized sentence, the court's discretion in sentencing is broad. Lumumba, 2014 VT 85, ¶ 23, 197 Vt. 315, 104 A.3d 627 (recognizing that "[i]n giving trial judges wide discretion to fashion appropriate sentences," a court may "tailor[ ]" each sentence to the particular situation before it); Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428, 852 A.2d 567 (stating sentencing court "has broad discretion when imposing a sentence"). Of course, that "discretion is not absolute." State v. Neale, 145 Vt. 423, 436, 491 A.2d 1025, 1033 (1985). The court "may not rely upon improper or inaccurate data in reaching its sentencing decision." Id. (quotation omitted). Nor may a sentencing decision be "driven by personal bias or animus against the defendant." Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428, 852 A.2d 567.

The court must "ground its decision on legitimate goals of criminal justice, including ... punishment, prevention, rehabilitation, and deterrence." Allen, 2010 VT 47, ¶ 14, 188 Vt. 559, 1 A.3d 1003 (quotation omitted).

¶ 9. Our review of a sentencing decision is therefore limited and deferential. Lumumba, 2014 VT 85, ¶ 22, 197 Vt. 315, 104 A.3d 627. We will not disturb the court's ruling unless there was an abuse of discretion. State v. Webster, 2017 VT 98, ¶ 45, 206 Vt. 178, 179 A.3d 149. Thus, "[w]e will affirm a sentence on appeal if it falls within statutory limits, and it was not derived from the court's reliance on improper or inaccurate information" or "driven by personal bias or animus against the defendant." Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428, 852 A.2d 567 (citation omitted). We will uphold the findings upon which the sentencing court relies "if they are supported by credible evidence, even where there may be substantial evidence in the record to the contrary." State v. Corliss, 168 Vt. 333, 341, 721 A.2d 438, 444 (1998).

II. Whether the Record Supports the Sentence

¶ 10. We turn now to defendant's arguments that the record does not support the sentence. More specifically, defendant argues (a) that the court could not impose a minimum sentence above the statutory mandatory minimum absent a showing of aggravating factors; (b) to the extent the court's findings support aggravating factors, those findings are incorrect and insufficient to support the sentence; and (c) the court abused its discretion in dismissing defendant's mitigating evidence.

¶ 11. The court is not required to find any aggravating factors in imposing a minimum sentence greater than the statutory mandatory minimum. This issue was addressed in State v. Webster, 2017 VT 98, 206 Vt. 178, 179 A.3d 149. In that...