Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-044

                                      NOVEMBER TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Misty L. Smith                                        }    DOCKET NO. 1378-11-10 Frcr

                                                            Trial Judge: Robert A. Mello

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals her sentence of three years to life for sexual assault and unlawful
restraint. She contends the trial court abused its discretion in declining to impose a split sentence
of three years to life, with three years to serve and the balance to be served on probation. We
affirm.

        Defendant was originally charged with a total of eight counts: three of aggravated sexual
assault on a victim under the age of thirteen, two of lewd and lascivious conduct with a child,
two of unlawful restraint, and one of simple assault. Based on a plea agreement, defendant pled
guilty to two amended charges of sexual assault and the two charges of unlawful restraint. In
return, the State agreed to drop the other four counts, the sentence was capped at three years to
life, and defendant remained free to argue for any legal sentence within those parameters.

        The court ordered a Pre-Sentence Investigation (PSI) Report and conducted a contested
sentencing hearing in January 2012. The State argued for a straight sentence to serve of three
years to life. Defendant urged the imposition of a sentence of three years to life, all suspended
except for three years, and the balance to be served on probation. The court heard testimony
from the Department of Corrections probation and parole officer who authored the PSI, as well
as a clinical psychologist who had evaluated defendant. The officer testified that DOC
recommended a straight sentence of three years to life without probation based on its evaluation
of defendant as a high risk to re-offend and her need for a highly structured and intensive level of
supervision upon her release to the community. The DOC officer testified that defendant would
receive a higher level, and a more structured program, of supervision if she were released after
three years on furlough or parole than she would on probation. The officer specifically testified
that defendant “and [the] community will benefit more from a higher level of supervision [on
furlough] than probation can offer,” and that the supervision would be “more structured.”

      The clinical psychologist agreed that defendant was “highly susceptible” to re-offending
and would require extensive structure and supervision, but expressed concern that defendant
might not be released on furlough because her cognitive functioning prevented her from
completing incarcerative programming. The DOC officer testified, however, that the
Department planned to engage a specialist to design and provide a sex offender treatment
program especially for defendant that was “tailored to [her] needs” and to work with her “one-
on-one.”

        At the conclusion of the hearing, the court found that defendant was a significant risk to
re-offend, that “rehabilitation considerations” were paramount, and that defendant required
“significant structure” and “very strict supervision” to avoid re-offending. For this reason, the
court explained that it was imposing the sentence recommended by DOC, finding that a straight
sentence and release on furlough or parole would “provide [defendant] with the structure, the
supervision, and the services” that she required and would be superior to those “she would likely
get under probation.”

        Defendant contends the court’s choice was an abuse of discretion, asserting that
probation was necessary to accomplish the court’s rehabilitative goals and to provide defendant
with the “lifetime” services that she requires. Our review is limited. “As we have repeatedly
stressed, trial courts have broad discretion in sentencing matters,” State v. Keiser, 174 Vt. 87,
101 (2002), and we will thus generally affirm a sentence if it falls within the statutory limits and
was not based on improper or inaccurate information. State v. Ingerson, 2004 VT 36, ¶ 10, 176
Vt. 428. As shown by the record summarized above, the sentencing decision here was firmly
based on testimony—and the court’s considered judgment—that a straight sentence would
provide the intensive supervision and structure that the public safety and defendant’s
rehabilitative needs required. Accordingly, we find no abuse of discretion, and no basis to
disturb the judgment.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice




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