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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-476

                                     NOVEMBER TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 David E. Piquette                                     }    DOCKET NO. 1343-12-11 Wmcr

                                                            Trial Judge: David Suntag

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

       Defendant appeals from the denial of his motion to recuse the trial judge and the denial of
his motion to reduce his sentence. We affirm.

        In November 2012, a jury convicted defendant of sexual assault and domestic assault. In
August 2013, he was sentenced to ten years to life for sexual assault, and a concurrent sentence
of twelve-to-eighteen months for domestic assault. This Court affirmed his conviction and
sentence on appeal. See State v. Piquette, No. 2013-329, 2014 WL 3714959 (Vt. July 24, 2014)
(unpub. mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx. Following this Court’s
decision, defendant moved to reduce his sentence. He asked the court to sentence him to three
years to life, which represented the minimum mandatory sentences for his crimes, or
alternatively, to issue a split sentence. Defendant argued that he was innocent and that he could
not take responsibility for crimes that he did not commit. He indicated his belief that the court
had imposed the sentence that it did based on his failure to take responsibility for these crimes.
Defendant noted that he had no prior criminal convictions, and friends had testified to his
peaceful character. Defendant also indicated that he had been a “model prisoner” since being
incarcerated.

        Shortly after filing this motion, defendant moved to recuse the trial judge. He stated that
he had filed a complaint with the Judicial Conduct Board (JCB) against the judge in March 2013,
prior to his sentencing, in which he questioned the judge’s credibility and impartiality.
According to defendant, the court then imposed a sentence of ten years to life despite the
mitigating factors that he identified. Defendant asserted that “the mere allegation that a trial
judge is dishonest and biased would naturally affect that judge in the process of determining a
sentence against an individual who made the allegations.” He pointed to the sentence he
received as evidence that, to some degree, the JCB complaint adversely affected the result.
Counsel noted that, although defendant had discussed dissatisfaction with the judge prior to
sentencing, counsel did not know why defendant was dissatisfied, nor did he know that
defendant had submitted a JCB complaint. He became aware of these issues after defendant’s
appeal was decided.
        The motion to recuse was referred to the Administrative Judge for the Trial Courts (AJ),
who denied it. She explained that a trial judge should recuse himself or herself “whenever a
doubt of impartiality would exist in the mind of a reasonable, disinterested observer.” Ball v.
Melsur Corp., 161 Vt. 35, 39 (1993) (quotation omitted). A judge is accorded “a presumption of
honesty and integrity,” State v. Putnam, 164 Vt. 558, 561 (1996), and to overcome this
presumption, a party “must make a clear and affirmative showing of bias or prejudice.” Ball,
161 Vt. at 40. The AJ recognized that the filing of a judicial conduct complaint is not per se
grounds for recusing a trial judge, and that any other rule would open the door to attorneys and
litigants filing possibly groundless complaints to avoid a particular judge. See id. at 39. The AJ
thus rejected defendant’s assertion that the mere filing of the JCB complaint sufficed to raise a
concern about the trial judge’s ability to fairly and impartially sentence defendant. The AJ also
questioned the timing of the motion to disqualify. Rather than filing to recuse the judge in the
many months between the filing of the JCB complaint and the sentencing hearing, the AJ noted
defendant waited until well over a year after sentencing to file his motion, believing that the
sentence was overly harsh and hoping that a different judge would agree with him. The AJ
determined this was just the kind of judge shopping that Ball cautioned against. The AJ
concluded that the fact that defendant disagreed with his sentence and believed that it might have
been motivated by his JCB complaint, absent any other evidence indicating bias or impartiality,
did not suffice to make the clear and affirmative showing necessary for recusal.

        The trial judge then held a hearing on defendant’s motion to reduce his sentence. The
parties presented no evidence and relied on their written filings. The court denied the motion in
a written order. It explained that at the original sentencing hearing, it had considered a pre-
sentence investigation report (PSI), the testimony of four witnesses for defendant, a statement
provided by the victim of the offenses, additional information regarding programming issues
provided by the PSI’s author, and the arguments of counsel. Defendant chose to remain silent at
his sentencing hearing. At the time of the original sentence, the court explained why it imposed
the sentence that it did. The court found that defendant committed a particularly violent sexual
assault upon a victim with whom he was having an intimate relationship. It was a forcible rape
made even more egregious by the commission of a domestic assault. Defendant testified at trial
and denied committing the crime. The jury’s verdict led to the inevitable conclusion that
defendant committed perjury. Defendant denied committing the offense during his PSI interview
and despite being provided with Begins-type immunity at the sentencing hearing, he chose not to
speak or acknowledge any responsibility for the offenses for which he was convicted. As the
trial court noted at the first sentencing hearing, the serious and violent nature of the crime, the
impact upon the victim and the risk that a person who committed such a crime who cannot or
will not even acknowledge responsibility long after the criminal proceedings had ended,
presented a picture of a dangerous sexual offender who could not even begin treatment designed
to lessen his risk if released.

         Against this backdrop, defendant argued that his sentence should be reduced because: he
did not commit the crimes for which he was convicted and sentenced; his character witnesses
testified to his peaceful character; he has no prior criminal record; and he has been a model
prisoner since sentencing.

        The court found that the fact that defendant maintained his innocence after trial,
sentencing and an unsuccessful appeal did not provide support for reducing his sentence. The
peaceful character testified to by his witnesses, given the jury’s verdicts, was similarly
insufficient to warrant reconsideration of his sentence. Defendant’s lack of prior criminal record
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had been considered at the original sentencing hearing and did not lead to a conclusion, given all
of the circumstances, that the minimum sentence should be less than ten years and did not now
lead the court to reconsider that decision. Finally, the court explained that defendant’s behavior
since sentencing was inappropriate for the court to consider. See State v. Platt, 158 Vt. 423, 430
(1992) (stating that post-sentence behavior is “irrelevant in a sentence reconsideration
proceeding”). The court thus denied the motion for reconsideration. This appeal followed.

        Defendant first argues that the AJ erred in denying his motion to recuse. He disputes the
court’s characterization about the timing of his motion. Defendant asserts that he did not know
until after his sentence was imposed that the trial judge’s impartiality might reasonably be
questioned due to personal bias or prejudice. He maintains that the fact that the court imposed a
sentence of ten years to life shows that the JCB complaint he filed adversely affected the result.

        We find no error in the court’s denial of defendant’s motion to recuse the trial judge. See
Putnam, 164 Vt. at 561 (recognizing that administrative judge has discretion in deciding
disqualification issues, and Court reviews for “abuse of discretion, that is, if the record reveals no
reasonable basis for the decision” (citation omitted)). Regardless of any inferences that can be
drawn from the timing of the motion, defendant simply failed to identify any concrete evidence
to overcome the “presumption of honesty and integrity” that we accord to the trial judge. Id. As
stated above, a party “must make a clear and affirmative showing of bias or prejudice,” and the
mere fact that a JCB complaint was filed and that defendant disagrees with the sentence he
received does not suffice. Ball, 161 Vt. at 40.

        Defendant next asserts that the court erred in denying his motion to reduce his sentence.
Defendant argues that the court unreasonably faulted him for testifying at trial by stating that he
perjured himself. Defendant also complains that he was unreasonably faulted for failing to speak
at sentencing and at the sentence reconsideration hearing, and refusing to take responsibility for
crimes that he had always denied committing. According to defendant, the trial court was
unwilling to recognize the mitigating factors he identified.

         As defendant acknowledges, the trial court has discretion in ruling on a motion for
sentence reconsideration, and defendant “must demonstrate either that the court withheld its
discretion or exercised it on grounds clearly untenable or to an extent clearly unreasonable.”
State v. Rice, 148 Vt. 313, 315 (1987). Defendant fails to make such showing here. The purpose
of sentence reconsideration is “to allow a second look at the sentencing decision absent the heat
of trial pressures and in calm reflection to determine that it is correct, fair, and serves the ends of
justice.” State v. Dean, 148 Vt. 510, 513 (1987) (quotation omitted). The trial court explained
why it had imposed its original sentence, and why it declined to modify that sentence. As set
forth above, defendant committed a violent sexual assault against an intimate partner. The crime
had a significant impact upon the victim. Defendant refused to take responsibility for the crime,
and thus remained a dangerous sexual offender who could not even begin treatment designed to
lessen his risk if released. The court could properly consider whether defendant lied during trial,
and also consider his subsequent refusal to take responsibility for his actions. See, e.g., State v.
Sims, 158 Vt. 173, 188-89 (1991) (“A defendant’s acceptance of responsibility for the offense,
and a sincere demonstration of remorse, are proper considerations in sentencing.”); State v.
Noyes, 157 Vt. 114, 119 (1991) (holding that, in fashioning sentence, trial court can consider
defendant’s “testimony and demeanor at trial” and defendant’s truthfulness or mendacity while
testifying at trial is “probative of his attitudes toward society and prospects for rehabilitation and
hence [is] relevant to sentencing” (quotation omitted)). Indeed, we specifically stated in Sims
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that acceptance of responsibility and demonstration of remorse are “important steps toward
rehabilitation,” and where present, a reduction in sentence can be appropriate. 158 Vt. at 188.
“Likewise, denying this reduction, where there are no acknowledgements, can be appropriate and
does not penalize a defendant’s privilege against self-incrimination.” Id. As we recognized in
Sims, a sexual offender who is unwilling to acknowledge any responsibility for his crime cannot
successfully be treated, and will still pose a threat to society. Id. We note, moreover, that
defendant here was also provided with Begins-type immunity and he still refused to accept
responsibility for his crimes. Finally, the trial court did not ignore the mitigating factors that
defendant identified. It simply found them insufficient to overcome the other factors that
warranted the sentence that the court imposed. Defendant wars with the trial court’s exercise of
its discretion, but he fails to show any error. See, e.g., Meyncke v. Meyncke, 2009 VT 84, ¶ 15,
186 Vt. 571 (explaining that arguments which amount to nothing more than a disagreement with
court’s reasoning and conclusion do not make out a case for an abuse of discretion).

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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