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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-198

                                          MAY TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Norman J. Lizotte                                     }    DOCKET NO. 1478-11-08 Wmcr

                                                            Trial Judge: David T. Suntag

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

        Defendant appeals a sentence of twenty-five years to life following his guilty pleas to
multiple charges including kidnapping, and assault and robbery. On appeal, defendant argues
that the court abused its discretion during sentencing by likening defendant’s actions to second-
degree murder when that crime was not charged. We affirm.

        In November 2008, defendant was charged with kidnapping, aggravated assault, assault
and robbery, interference with access to emergency services and operation of a vehicle without
the owner’s consent based on an incident in which defendant and his girlfriend assaulted
defendant’s friend, with whom they were living, tied her up and stole her truck and credit cards.
In December 2010, defendant pleaded guilty to all charges, except the aggravated assault, which
was later dismissed by the State. At the change-of-plea hearing, defendant admitted that he had
assaulted and restrained the victim, stolen her belongings and car and attempted to flea the state
with his girlfriend. He also admitted that he took the victim’s phones to prevent her from
contacting police.

         There was no agreement on sentencing, and the court held a contested hearing in May
2011. At the hearing, the victim testified concerning the kidnapping and assault. She explained
that in the fall of 2008 she invited defendant and his girlfriend to stay at her house because they
had been living in a tent. After they had been living at her house rent-free for several weeks, she
notified them that they would have to leave in December. On the evening of November 11,
2008, the victim was making dinner when defendant attacked her from behind and started
strangling her. Defendant’s girlfriend then hit the victim on the head with a beer bottle. The
victim tried to get away through the door, but defendant and his girlfriend dragged the victim
inside and slammed the door, and punched the victim in the head. Defendant then hit her in the
head with the beer bottle twice, breaking the bottle the second time. Defendant’s girlfriend got
some duct tape and telephone wire. Defendant tied the victim’s knees, ankles and hands and
taped her mouth. Defendant and his girlfriend dragged the victim into the bedroom. Defendant
stomped on the victim’s face and said, “have a nice life, bitch.” Defendant and his girlfriend
then left in the victim’s truck.
       The victim managed to free her hands and remove the tape and bindings. She went to her
neighbor’s house, who called the police. The victim was taken to the local hospital and then
brought by helicopter to Dartmouth Hitchcock Medical Center due to the severity of her injuries.
She was kept in the hospital for three days because her head injuries were life-threatening.
Following her release, the victim underwent physical therapy for two months and occupational
therapy for three months. Due to the assault, she has post-traumatic stress disorder and
permanent nerve damage in one eye.

        A Brattleboro police officer testified that defendant and his girlfriend were apprehended
in Massachusetts following a car pursuit which ended in a vehicle accident. Both fled the scene
of the crash on foot, but were eventually arrested.

        Defendant also testified. He admitted to attacking the victim and choking her. He
explained that he did not want to cause her injury, but wanted to make her pass out so he could
steal her truck. Defendant agreed with the victim’s account of the assault, except that he claimed
he did not stomp on her head. He admitted to tying up the victim and taking her phones so that
she could not call the police.

        The State requested a sentence of thirty-five years to life, emphasizing the heinous nature
of defendant’s assault and that defendant was on probation when he committed the assault and
kidnapping. The State requested the sentence both to punish defendant and to protect society.
Defendant’s attorney argued for leniency, emphasizing that defendant’s prior crimes were all
nonviolent and that this assault was out of character. He argued that defendant did not mean to
hurt the victim and was just trying to get her to pass out so that he could take the truck. He
claimed that the case was really about the aggravated assault and thus requested a sentence of
fifteen years to life. The Department of Corrections suggested a twenty-five-years-to-life
sentence.

        Following presentation of the evidence, the court ruled on the record. The court began by
recounting the heinous nature of the crime. The court explained that “the crime is so severe that
there must be a response commensurate with the severity of the offense.” The court referenced
the sentencing of defendant’s girlfriend, wherein the court had explained that the facts were akin
to a second-degree murder case because the injuries were so severe that death could have
resulted. In comparing the sentence to that of defendant’s girlfriend, the court found defendant’s
situation was aggravated by the fact that he was on probation at the time of the offense and he
had personally known the victim and violated her trust. The court also referenced the fact that
defendant had prior offenses and had not previously cooperated with Department of Corrections
programming. The court explained, “This is basically a second degree murder case, and you
have some aggravating factors over the presumptive minimum term. So that what the
Department of Corrections is recommending in this instance is actually what I’m going to do,
because I think it’s correct.” The court then sentenced defendant to twenty-five years to life.
This automatic appeal followed.

        On appeal, defendant argues that the court thought his actions warranted an attempted
second-degree murder charge and abused its discretion by considering the penalties for second-
degree murder even though attempted murder was not charged. Defendant claims that it was
error for the court to consider this uncharged offense.

        The sentencing court has broad discretion to determine the appropriate penalty and if a
sentence falls within the statutory limits, we will affirm it unless it was “derived from the court’s
reliance on improper or inaccurate information.” State v. Ingerson, 2004 VT 36, ¶ 10, 176 Vt.

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428. “Although a sentence that is based on improper information may be vacated on appeal, it
must be recognized that the [trial] court may properly consider more than the facts of the
particular crime at issue when sentencing defendant.” Id. (citation omitted).

         We conclude that there was no error in this case. First, the sentence was well within the
statutory limit for kidnapping, which carries a maximum life sentence. 13 V.S.A. § 2405(b).
Second, there was no improper consideration of unproven conduct. Defendant likens this case to
State v. Williams, wherein this Court concluded that the defendant was entitled to resentencing
because the sentencing judge improperly considered hearsay information about criminal
activities for which the defendant had not been tried, charged or convicted. 137 Vt. 360, 364
(1979). The concern in Williams—that a sentencing court must not consider mere assertions of
criminal activities—is simply not present here because no unsupported criminal allegations were
considered at defendant’s sentencing. The court based its decision on the particular facts of
defendant’s crime. These facts were testified to in detail by the victim at sentencing, and, except
for some details, were unchallenged by defendant. See State v. Rice, 145 Vt. 25, 31 (1984)
(holding that there was no error where sentencing was based on victims’ testimony and subject to
cross-examination). Thus, the court’s decision was not based on unsupported allegations.

       Defendant’s contention that the court erred in arriving at a sentence by comparing his
offenses to a second-degree murder charge is also without merit. While the court explained that
defendant’s acts could have resulted in the victim’s death, the court did not improperly sentence
based on the statutory range for second-degree murder. When read in context, the court’s
comments about second-degree murder were to emphasize the particularly violent nature of
defendant’s acts and the severity of the victim’s injuries. These were both appropriate
considerations at sentencing. See State v. Greenslet, 146 Vt. 256, 258 (1985) (explaining that
sentencing court bases decision on the nature of offense and offender, among other
considerations). The sentence was thus within the court’s discretion.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice




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