2014 VT 102


State v. Perry (2013-337)
 
2014 VT 102
 
[Filed 29-Aug-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 

2014 VT 102

 

No. 2013-337

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Essex Unit,


 


Criminal Division


 


 


Roger Perry


June Term, 2014


 


 


 


 


Walter
  M. Morris, Jr., J. (Ret.), Specially Assigned.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Allison N. Fulcher of Martin & Associates, Barre, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.[1]
 
 
¶ 1.            
ROBINSON, J.   Defendant Roger Perry appeals from the trial court’s
issuance of a mittimus ordering the Department of Corrections (DOC) not to give
defendant credit for time served in connection with prior convictions.  The
State does not challenge defendant’s claim that the mittimus violated the
parties’ plea agreement and created an illegal sentence, but argues that,
because defendant has completed the time-to-serve portion of his sentence, this
appeal is moot.  We reverse, concluding that the appeal is not moot because defendant
is still serving the challenged sentence, and that the amended mittimus violates
Vermont’s sentencing statute, 13 V.S.A. § 7032.
¶ 2.            
The following facts are undisputed.  In February 2012, defendant was
charged with two counts of burglary, and two counts of larceny in connection
with two incidents—one in December 2010, and one in January 2011.[2]
 In June 2013, defendant entered into a plea agreement, pleading no contest to the
burglary charges in exchange for dismissal of the grand larceny charges.  The
agreement provided for restitution and concurrent sentences of three to fifteen
years, split to serve up to six months.  Defendant had, in the meantime, been
serving a sentence of confinement for unrelated drug offenses.
¶ 3.            
At the sentencing hearing on the burglary charges in July 2013, the
trial court sentenced defendant to a split sentence of three to fifteen years
to serve, all suspended except six months, with probation subject to specified
conditions.  The identical sentences on the two charges were to be served
concurrently, but consecutive to the sentence defendant was already serving on unrelated
charges.  At sentencing, the court indicated that the sentences would “be in
execution right now” and that defendant would be taken into custody immediately. 
The court issued a mittimus ordering DOC to give defendant “[c]redit for time
served according to [the] law.”
¶ 4.            
DOC completed its sentence computation and credited defendant with 228
days for time served on his unrelated drug conviction.  After the court
received DOC’s sentence computation notification, the State filed a motion to
modify or correct the sentence pursuant to 13 V.S.A. § 7042(b), arguing
that defendant should not get credit for time served in home confinement on
prior convictions while his cases were pending.  The State argued that the
effect of DOC’s computation was that defendant was incarcerated for only eight
days of his six-month to-serve sentence.  The State argued that defendant
should receive credit only for his incarceration during the two days between
his arrest and arraignment and requested that the court amend defendant’s
mittimus to state that defendant should receive no credit for time served on
other dockets. 
¶ 5.            
The court held a hearing on the State’s motion and concluded that DOC’s
interpretation of the statute to allow credit for home confinement in this case
“clearly and plainly [thwarted] the Court’s authority to impose a punitive
component of [the] sentence” in the form of six months of incarceration.  It
further reasoned that the parties contemplated and agreed in the plea agreement
that defendant would serve up to six months in jail.  For these reasons, the
court concluded that no credit should be awarded for time served on other
offenses and issued an amended mittimus to DOC directing that defendant receive
“no credit for time served on other dockets.”  Defendant appealed.
¶ 6.            
Defendant argues that the court’s amendment of his mittimus (1) violated
the express terms of his plea agreement and (2) resulted in a sentence in
violation of the recently amended consecutive sentencing statute.  He argues
that the amendment deprives him of credit that the plea agreement explicitly
provided for and that he bargained for as part of the agreement.  Further, defendant
argues that ordering DOC not to give defendant credit for time served on other
offenses effectively requires DOC to violate the sentencing statute.  Defendant
asserts that the resulting sentence is therefore illegal.
¶ 7.            
The State did not file a responsive brief on the merits and instead relies
on its motion to dismiss the appeal as moot.  The State reasons that insofar as
defendant seeks to avoid the to-serve requirement of his sentence, his
challenge is moot because defendant in fact completed the six-month to-serve requirement
in January 2014.  Anticipating defendant’s argument that the dispute is not
moot because it would bear on the sentence imposed if defendant violates
probation, the State argues that such a dispute is not ripe for review because
any violation of probation is a hypothetical future event.
¶ 8.            
Defendant responds that the appeal is not moot because he has not yet
served his maximum sentence and the credit he receives directly impacts the
length of his probation.  He argues that, regardless of any future violation of
probation, he therefore has a presently cognizable legal interest in the
outcome of this appeal.
¶ 9.            
The threshold issue in this case is whether the appeal is moot because
defendant has completed the to-serve requirement of his sentence.  “The general
rule is that a case becomes moot when the issues presented are no longer live
or the parties lack a legally cognizable interest in the outcome.”  In re
Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (quotations omitted). 
The State relies heavily on our decision in In re LeClair in arguing
that defendant’s appeal is moot.  2011 VT 63, 190 Vt. 535, 26 A.3d 41 (mem.). 
In that case, the defendant appealed a trial court ruling that he was not
entitled to credit toward a consecutive charge for time that he was
incarcerated after his furlough was improperly revoked.  This Court concluded
that the defendant’s appeal was moot because the defendant had already served
the maximum sentence on the only charge that was eligible for credit.  Id.
¶ 7.
¶ 10.        
In contrast to the defendant in LeClair, defendant in this case
is still serving the three-to-fifteen-year split sentence pursuant to the
amended mittimus issued by the trial court—a sentence defendant contends is illegal
pursuant to 13 V.S.A. § 7032.  The fact that he has completed the
“to-serve” portion of his split sentence does not mean he is not still under
sentence, or that the credit allowed for time served does not or cannot impact
his liberty.  
¶ 11.        
The State asserts that the only potential future impact of the trial
court’s denial of credit for time served will arise if defendant violates
probation, and suggests that if that happens, defendant can collaterally
challenge the time-served calculation in this case.  Even if the State is right
about the prospective impact of the time-served calculation, our cases and
rules reflect a strong preference for correcting errant sentences sooner rather
than later.  See, e.g., State v. Austin, 165 Vt. 389, 401, 685 A.2d 1076,
1084 (1996) (requiring that facial challenges to probation conditions be raised
on direct appeal rather than collaterally in subsequent proceedings); see also
V.R.Cr.P. 35(a) (stating that court may correct an illegal sentence at any
time).  If defendant is correct that the mittimus essentially creates an
illegal sentence, we need not ignore the illegality on direct appeal and then wait
for a future probation violation so we can correct the mittimus in a collateral
proceeding.  Our decisions in related contexts and strong policy considerations
point in the opposite direction.  
¶ 12.        
We therefore reject the State’s motion to dismiss this appeal as moot,
and instead address the merits of defendant’s appeal.  At the time of
sentencing, defendant was serving a prior sentence for an unrelated charge. 
The Legislature has given courts discretion to determine whether subsequent
sentences are to be served concurrent with or consecutive to prior sentences.  13
V.S.A. § 7032(a), (b).  The trial court in this case determined that
defendant’s burglary sentences, while concurrent with each other, were
consecutive to the sentence on the drug charges.  
¶ 13.        
On these facts, and in the absence of any counterargument from the State
that might have lead us to a different conclusion, we conclude that the amended
mittimus improperly denied defendant credit for time served to which he was
due.  Through recent amendments to the statute, effective prior to defendant’s
sentencing in this case, the Legislature has given clear instructions
concerning credit for time served in the context of consecutive sentences:
  When
terms run consecutively, the minimum terms are added to arrive at an aggregate
minimum to be served . . . and the maximum terms are added
to arrive at an aggregate maximum . . . .  A person shall
serve no more time on consecutive minimum sentences than the sum of the minimum
terms, regardless of whether the sentences are imposed on the same or different
dates.  If a person has served a minimum term and subsequently incurs
another criminal charge, the time the person spends in custody awaiting
disposition of the new charge shall count toward the minimum term of the new
sentence, if one is imposed. 
 
Id. § 7032(c)(2) (emphasis
added).[3]
 
¶ 14.        
As this Court noted recently in State v. Aubuchon, the 2013
amendments to the sentencing statute were part of a comprehensive revision to
Vermont’s sentencing laws and were intended to give defendants credit for time
served from arraignment to sentencing without regard to whether the time served
was connected to the offense being sentenced.  2014 VT 12, ¶¶ 14-15, ___
Vt. ___, 90 A.3d 914.  This was, as we noted, a departure from the prior regime
that awarded credit for time served only in connection with the sentence being
imposed.  Id. ¶ 24.  In light of the amended statute’s mandate, the
amended mittimus denying credit toward the minimum of a consecutive sentence
for time served beyond the minimum on a prior sentence gives rise to an illegal
sentence.  See State v. Mancino, 714 So.2d 429, 433 (Fla. 1998)
(concluding that “sentence that does not mandate credit for time served would
be illegal since a trial court has no discretion to impose a sentence without
crediting a defendant with time served”); Tucker v. Morrow, 335 S.W.3d
116, 123 (Tenn. Crim. App. 2009) (concluding that failure to credit petitioner
with credits mandated under Tennessee state code “contravenes the requirements
of that statute and results, therefore, in an illegal sentence”).[4]
¶ 15.        
Accordingly, we reverse and remand to the trial court for amendment of
defendant’s mittimus in accordance with this opinion.
Reversed and remanded for
amendment of defendant’s mittimus in accordance with this opinion.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 


[1] 
Justice Crawford was present for conference on the briefs, but did not
participate in this decision.


[2]
 Defendant was initially charged with petit larceny, 13 V.S.A. § 2502, in
connection with the December 2010 incident and grand larceny, id.
§ 2501, in connection with the January 2011 incident.  The State later
amended the charge for the December incident to grand larceny, and added a
habitual offender count to that charge. 


[3]
 The trial court’s ruling is not based on a determination that DOC misapplied
the statute but instead rests on the view that application of the statute
thwarted the parties’ understanding and the court’s punitive sentencing goal. 
These are understandable considerations, but the statute does not give courts
discretion to disregard its terms.
 


[4] 
The State argued before the trial court that time spent in home confinement is
not time spent in “custody” for purposes of the credit provisions of the
sentencing statute.  Because the State has not raised or briefed this argument
on appeal, we do not reach this issue.


