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



                                           ENTRY ORDER

                 SUPREME COURT DOCKET NOS. 2010-224/225/226/227/228

                                          MAY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
    v.                                                 }    District Court of Vermont,
                                                       }    Unit. No.1, Windsor Circuit
                                                       }
 Taylor James                                          }    DOCKET NOS. 1107-9-08, 1153-9-08,
                                                       }                1384/1385-11-08, 229-
                                                       }                2-09, 703-6-09 Wrcr

                                                            Trial Judge: Theresa S. DiMauro

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

        Defendant was convicted of several criminal charges and placed on probation. Months
later, the court found defendant violated his probation, revoked probation and imposed
defendant’s underlying sentence. Defendant filed a motion for reconsideration. He now appeals
the denial of the motion for reconsideration, arguing that the court abused its discretion in
denying his request to reduce his sentence so that he could enter inpatient treatment. We
conclude that the court lacked jurisdiction to entertain defendant’s motion to reconsider and
affirm.

        In April 2009 and August 2009, defendant was convicted of several different criminal
charges and placed on probation. In February 2010, defendant’s probation officer filed a
violation complaint alleging that defendant violated three conditions, which prohibited him from
engaging in violent or threatening behavior, required him to participate in a specific program,
and prohibited him from abusing or harassing his former girlfriend, with whom he has a son. On
March 25, 2010, the court held a hearing on the violations. The girlfriend’s cousin testified
concerning threatening behavior of defendant as well as threatening telephone calls and
telephone messages received from defendant. Defendant’s probation officer also testified about
defendant’s compliance with his program, and the threatening telephone messages. At a
continued hearing on April 5, 2010, the court made its ruling on the record. It found the cousin’s
testimony credible, and concluded that the State had proven by a preponderance of the evidence
that defendant had violated two conditions by engaging in violent and threatening behavior and
by harassing his former girlfriend. The court found there was insufficient evidence to support a
violation of the programming condition. Citing defendant’s demonstrated inability to abide by
probation conditions, the court revoked defendant’s probation and imposed the underlying
sentence. Defendant did not appeal this decision.

       On April 13, 2010, defendant filed a motion to reconsider his sentence. Defendant
requested that the court amend his eighteen-month minimum sentence to a split of six-to-twelve
months to serve so he could be released. At a hearing on defendant’s motion, defendant argued
that his mental health issues had worsened in prison and the programming he required to address
his problems was not being offered in prison. Defendant’s mother testified concerning inpatient
treatment programs that would be available to her son if he was not incarcerated. The court had
questions regarding one of the proposed programs and deferred ruling on the motion. At the
reconvened hearing, the court denied the motion, concluding that release would not be
appropriate due to public safety concerns and defendant’s need for increased supervision.
Defendant appeals.

         Our standard of review in sentence reconsideration cases is well defined. The trial court
has wide discretion in determining what factors to consider and we review the denial of a motion
for sentence consideration for an abuse of that discretion. State v. King, 2007 VT 124, ¶ 6, 183
Vt. 539 (mem.); see 13 V.S.A. § 7042; V.R.Cr.P. 35. “The purpose of sentence reconsideration
is to give the [trial] court an opportunity to consider anew the circumstances and factors present
at the time of the original sentencing.” King, 2007 VT 124, ¶ 6 (quotation omitted). On appeal,
defendant argues that the court abused its discretion in denying his motion for reconsideration
because inpatient treatment was the only means to guarantee that defendant received necessary
and immediate programming.

        The State contends that the trial court lacked jurisdiction to entertain defendant’s motion
for reconsideration. Under Vermont Rule of Criminal Procedure 35, the court “may reduce a
sentence within 90 days after the sentence is imposed.” See 13 V.S.A. § 7042(a) (granting court
authority to reduce a sentence “within 90 days of the imposition of that sentence”). The State
argues that because defendant filed his motion more than ninety days after entry of judgment,
there was no jurisdiction to entertain it, relying on State v. Therrien, 140 Vt. 625 (1982) (per
curiam). In Therrien, the defendant was sentenced in October 1979, and after his probation was
revoked and his sentence imposed in February 1981, the defendant sought reconsideration of his
original sentence. This Court held that there was no jurisdiction to entertain the motion because
it was filed beyond the ninety-day period, which began when the sentence was imposed in
October 1979. Id. at 628. Therefore, we explained that “[a]fter a revocation of probation, the
defendant’s proper avenue for relief is through an appeal or habeas corpus proceeding.” Id. at
627.

        As in Therrien, we agree that the court lacked jurisdiction over defendant’s motion for
reconsideration in this case. Defendant’s underlying sentences were imposed most recently on
August 5, 2009. His motion for sentence reconsideration was not filed until April 13, 2010, well
beyond the ninety-day period set forth in Rule 35 and § 7042(a). Defendant’s means to
challenge the revocation of his probation and imposition of his original sentence was through
appeal, which defendant chose not pursue. Having failed to do so, defendant could not challenge
the revocation through a motion for sentence reconsideration. To allow defendant to do so
would “unnecessarily burden the revocation proceeding and unjustifiably give the defendant yet
another chance to attack his original sentence.” Id. Therefore, the motion should have been
dismissed for lack of jurisdiction.

        Even assuming that the trial court had jurisdiction over defendant’s motion, we conclude
that the court did not abuse its discretion in denying defendant’s request. Defendant asked the
court to alter his sentence so that he could get inpatient treatment for his worsening mental health
issues, which he claimed were not being adequately addressed in prison.                   Sentence
reconsideration is not a means, however, to “review circumstances that come about following the
imposition of the sentence,” but is designed to allow the trial court to reconsider the facts and

                                                 2
circumstances existing at the time of the original sentence. State v. Platt, 158 Vt. 423, 426
(1992). In addition, “[s]entence reconsideration is not the right remedy for an alleged lack of
prison health care services.” State v. Sodaro, 2005 VT 67, ¶ 8, 178 Vt. 602 (mem.). The court
was well within its discretion in concluding that public safety and the need to closely supervise
defendant outweighed the benefit of defendant’s proposed treatment options. Id. ¶¶ 9-10
(holding that court did not err in denying defendant’s motion to reconsider based on post-
sentencing behavior).

       Affirmed.

                                            BY THE COURT:


                                            _______________________________________
                                            Denise R. Johnson, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice

                                            _______________________________________
                                            Brian L. Burgess, Associate Justice




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