State v. White

• Decision Date: 09 November 2007
• Docket Number: No. 06-436.,No. 06-435.,No. 06-285.,06-285.,06-435.,06-436.
• Citation: 2007 VT 113,944 A.2d 203
• Parties: STATE of Vermont v. Robert L. WHITE State of Vermont v. James J. Kelley State of Vermont v. Adam Corliss.
• Court: Vermont Supreme Court

944 A.2d 203

2007 VT 113

STATE of Vermont v. Robert L. WHITE

State of Vermont v. James J. Kelley

State of Vermont v. Adam Corliss.

No. 06-285.

No. 06-435.

No. 06-436.

Supreme Court of Vermont.

November 9, 2007.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, Henry Hinton, Appellate Defender, and Kelly Green, Appellate Defender (on the Brief), Montpelier, for Defendant-Appellant. (06-285).

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendants-Appellants. (06-435) & (06-436).

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. In these consolidated cases, we are asked to determine whether our decision in State v. Provost, 2005 VT 134, 179 Vt. 337, 896 A.2d 55, should be given full retroactive effect. Each defendant exhausted his direct appeal prior to our decision in Provost. Defendants now ask this Court to reverse their sentences and remand for resentencing in accordance with the holding in Provost, which invalidated 13 V.S.A. § 2303 (amended by 2005, No. 119 (Adj.Sess.), § 2, effective May 1, 2006) as unconstitutional. We affirm the trial court decisions rejecting full retroactivity of the Provost decision and upholding defendants' sentences.

¶ 2. A brief recitation of the facts is sufficient for our analysis. Defendant White was convicted of second-degree murder and sentenced to life in prison without parole. At the time, sentencing for second-degree murder was governed by pre-amendment 13 V.S.A. § 2303(b), which limited the court to imposing a sentence of twenty-years-to-life imprisonment unless it found aggravating or mitigating factors justifying a different minimum term. In White's case, the court heightened the minimum sentence to life in prison without parole after considering eight aggravating factors and seven mitigating factors pursuant to pre-amendment 13 V.S.A. § 2303(d)-(e). The conviction and sentence were upheld on appeal. State v. White, 172 Vt. 493, 496, 782 A.2d 1187, 1189 (2001). After White's sentencing, this Court held that § 2303 violated the Sixth Amendment to the United States Constitution because "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Provost, 2005 VT 134, ¶ 15, 179 Vt. 337, 896 A.2d 55 (quotation omitted). White moved the trial court for resentencing pursuant to Vermont Rule of Criminal Procedure 35, claiming that his sentence was illegal in light of the Provost decision. The court denied the motion, ruling that White had waived his claim under Provost because he had not raised it on direct appeal.

¶ 3. Defendants Kelley and Corliss were both convicted of first-degree murder. At the time of their sentencing, pre-amendment 13 V.S.A. § 2303(a) prescribed a sentence of thirty-five-years-to-life imprisonment for first-degree murder, unless the court found that aggravating or mitigating factors justified some other minimum term. Kelley was sentenced to life in prison without parole based upon the court's finding of an aggravating factor, which he contested as unsupported by the evidence on appeal. We upheld the sentence in State v. Kelley, 163 Vt. 325, 326, 664 A.2d 708, 709 (1995). Corliss was sentenced to fifty-years-to-life imprisonment based on the court's finding of an aggravating factor. He likewise appealed, and we upheld the court's decision. State v. Corliss, 168 Vt. 333, 334, 721 A.2d 438, 439 (1998). After the Provost decision, defendants Kelley and Corliss filed a motion for correction of their sentences pursuant to Rule 35, arguing that their sentences were illegal under the Provost holding. The trial court denied the motion, finding that Provost does not apply retroactively on collateral review.

¶ 4. On appeal, White challenges the court's denial of his motion for correction of sentence, arguing both that the trial court erred in finding waiver of any Provost claim and that Provost should be applied retroactively to his case. Kelley and Corliss appeal denial of their motion for correction of sentence, claiming only that Provost should receive full retroactivity.

¶ 5. We limit our analysis today to defendants' main issue on appeal — whether our decision in Provost should be applied retroactively despite defendants' exhaustion of the direct appeals process. The question of a decision's retroactivity is a legal one, and therefore our review is nondeferential and plenary. Vt. Alliance of Nonprofit Orgs. v. City of Burlington, 2004 VT 57, ¶ 5, 177 Vt. 47, 857 A.2d 305.

¶ 6. In Provost, the defendant was convicted of four counts of first-degree murder and challenged his sentence of four consecutive terms of life in prison without parole as violative of the Sixth Amendment to the United States Constitution. Under Vermont's then-existing-homicide-sentencing scheme; 13 V.S.A. § 2303, the court lengthened the defendant's minimum sentence from the presumptive thirty-five-years imprisonment to life without parole based on its finding of five statutory aggravating factors and no mitigating factors. Provost, 2005 VT 134, ¶ 14, 179 Vt. 337, 896 A.2d 55. We based our analysis of the sentencing scheme's constitutionality on the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Provost, 2005 VT 134, ¶ 15, 179 Vt. 337, 896 A.2d 55. In Apprendi, the Court held that, excepting prior convictions, any fact that increases the penalty for an offense beyond the prescribed statutory maximum must be proven to a jury beyond a reasonable doubt; otherwise, the penalty is unconstitutional under the Sixth Amendment. 530 U.S. at 490, 120 S.Ct. 2348. Later, in Blakely, the Court clarified that the statutory maximum it referred to in Apprendi was "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted). Thus, we determined in Provost that the homicide-sentencing scheme was unconstitutional because it allowed the court to increase the maximum sentence allowed under § 2303(a), thirty-five-years-to-life imprisonment, to life in prison without parole on the basis of facts not found beyond a reasonable doubt by a jury. 2005 VT 134, ¶ 15, 179 Vt. 337, 896 A.2d 55.

¶ 7. Subsequently, the Legislature amended the homicide-sentencing statute to comply with Sixth Amendment protections by allowing courts, within their discretion, to sentence defendants convicted of first-degree murder to a minimum term of no less than thirty-five-years imprisonment and a maximum term of life, or life without the possibility of parole; and defendants convicted of second-degree murder to a minimum term of no less than twenty-years imprisonment and a maximum term of life, or life without the possibility of parole, if the murder was committed on or after the effective date of the new statute. 13 V.S.A. § 2303(a) (Cum. Supp.2006); 2005, No. 119 (Adj.Sess.), § 2. For defendants convicted of a murder committed prior to the effective date of the amended statute, the Legislature provided that aggravating and mitigating factors must be found by a jury beyond a reasonable doubt to justify exceeding the statutory maximum sentence. 13 V.S.A. § 2303(b), (c) (Cum.Supp.2006); 2005, No. 119 (Adj.Sess.), § 2.

¶ 8. Defendants contend that their sentences are illegal under the Provost holding because they exceed the maximums allowed under 13 V.S.A. § 2303 based upon aggravating factors found by a judge only by a preponderance of the evidence. As a result, they argue that they should be resentenced in accordance with the new law. In State v. Shattuck, we adopted the common-law rule that changes in constitutional law must be applied to all defendants whose cases are still pending on direct appeal at the time of the change, although we recognized that some "extraordinary cases" might require retroactivity even on collateral review. 141 Vt. 523, 529-30, 450 A.2d 1122, 1125 (1982). While there is no doubt that post-Provost, defendants' sentences would not stand, at the time of their convictions and subsequent appeals, the constitutionality of the homicide-sentencing statute remained unchallenged. Thus, our task today is to determine whether Provost is an extraordinary case justifying full retroactivity under our law.

¶ 9. The threshold inquiry in determining the retroactivity of a judicial decision is "`whether a new rule of law has been announced.'" State v. Brown, 165 Vt. 79, 83, 676 A.2d 350, 352-53 (1996) (quoting Shattuck, 141 Vt. at 528, 450 A.2d at 1124). For purposes of the retroactivity test, a new rule is one that overrules or significantly alters a prior decision. Brown, 165 Vt. at 83, 676 A.2d at 353; see also Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (a new rule "breaks new ground or imposes a new obligation on the States"). In contrast, when a decision interprets a statute for the first time, it does not establish a new rule but merely clarifies and enforces prior law. See Brown, 165 Vt. at 83, 676 A.2d at 353. Because it "represents the first authoritative construction of the enactment" at issue, full retroactive application is required to put into effect the meaning and policy of the enactment that was intended by the Legislature from its inception.¹ People v. Garcia, 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, 831 (1984), overruled on other grounds by People v. Lee, 43 Cal.3d 666, 238 Cal.Rptr. 406, 738 P.2d 752 (1987). Decisions which alter constitutional rules that our citizens and courts have justifiably relied on for some significant period of our...