2013 VT 28


State v. Carpenter (2011-254
& 2011-255)
 
2013 VT 28
 
[Filed 12-Apr-2013]
 
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.
 
 

2013 VT 28

 

Nos. 2011-254 & 2011-255

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Bennington
  Unit,


 


Criminal Division


 


 


Michael Carpenter


September Term, 2012


 


 


 


 


David
  A. Howard, J.


 

Christina Rainville and Alexander
Burke, Bennington County Deputy State’s Attorneys,
  Bennington, for Plaintiff-Appellee.
 
Michael Rose, St. Albans, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.  Defendant appeals from a sentence of five to
fourteen years imprisonment under Vermont’s Habitual Offender Act, 13 V.S.A.
§ 11, after pleading guilty to one felony count of violating an
abuse-prevention order (VAPO) and five misdemeanors.  Section 11 generally
provides that a person already convicted of three felonies may, upon a fourth
or subsequent felony conviction, be sentenced “to imprisonment up to and
including life.” Defendant contends that his five-year-minimum sentence is
unlawful because the trial court was not authorized under § 11 to impose a
minimum sentence greater than the maximum sentence of “not more than three
years” for the underlying felony VAPO.  13 V.S.A.
§ 1030(b).  The State argues that (1) the plain language of
the Habitual Offender Act permits a minimum sentence greater than the statutory
maximum of the underlying offense, (2) a contrary interpretation of § 11
would produce irrational and absurd results, and (3) defendant failed to contest the enhancement below and cannot demonstrate plain
error to overcome his waiver of objection.  We affirm on the last
point.   
¶ 2.            
The facts can be briefly summarized as follows.  Defendant was
charged with three felonies: aggravated domestic assault, second degree, and
two counts of VAPO-second offense/habitual offender.  Defendant was also
charged with six misdemeanors: resisting arrest, escape, unlawful mischief and
three counts of violating conditions of release.  Defendant ultimately
entered a plea agreement and pleaded guilty to one felony VAPO and five
misdemeanors.  It was agreed that the felony sentence could be enhanced
under the Habitual Offender Act.  Sentencing was left “open” under the
agreement, with the parties free to argue for their own recommendations. 
  
¶ 3.            
At sentencing, the State sought a prison term of ten to twelve years to
serve, a higher minimum and maximum sentence than ordinarily provided for
felony VAPO.  Defendant did not object to the State’s proposal as illegal
or contrary to statute.  Instead, defendant argued for a lesser sentence
of twenty-three months to seven and a half years to serve, with no
enhancement.  The trial court sentenced defendant to serve an enhanced
sentence of five to fourteen years on the habitual-offender felony VAPO count,
with lesser concurrent terms for the misdemeanors.  Defendant appeals the
habitual-offender sentence.[1] 

¶ 4.            
Defendant argues now that the trial court’s enhancement of the minimum
sentence to five years is unlawful.  The ordinary maximum for felony VAPO
is three years.  13 V.S.A. § 1030(b). 
Defendant contends that Vermont’s Habitual Offender Act, 13 V.S.A. § 11,
allows an increase of a maximum sentence to life, but does not authorize
enhancing a minimum sentence beyond the statutory maximum otherwise provided
for by the underlying offense.  Such a construction of § 11 is a
matter of first impression. 
¶ 5.            
As the State correctly points out, however, defendant failed to raise
this objection at the sentencing hearing and therefore only plain error can
warrant reversal on appeal.  This Court reverses for plain error “only in
rare and extraordinary cases.”  State v. Loveland,
165 Vt. 418, 422, 684 A.2d 272, 275 (1996) (quotation omitted). 
The standard for finding plain error is high: “(1) there must be an error; (2)
the error must be obvious; (3) the error must affect substantial rights and
result in prejudice to the defendant; and (4) we must correct the error if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”  State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt.
292, 30 A.3d 1285. 
¶ 6.            
Against that standard and the record of this case, defendant fails to
demonstrate plain error.  Assuming, for sake of argument only, that the
trial court’s application of the Habitual Offender Act was erroneous, it does
not patently appear so from the language of the statute.  Such error, if
error at all, worked no prejudice to defendant’s substantial rights, given his
exposure to the same or higher minimum term under his plea agreement, and the
same sentence could have been imposed without § 11 enhancement. 
Similarly, even if the trial court erred in its habitual-offender enhancement,
the fairness of the sentence and of the process is not impugned because the
minimum term remained well within the sentencing range agreed to by defendant. 
¶ 7.            
The limiting interpretation of § 11 sought by defendant—that the
statute authorizes a life enhancement of a maximum sentence, but no minimum
over the maximum originally prescribed for the underlying offense—does not
plainly flow from the text of the act.  The act says only that habitual
offenders may be imprisoned “up to and including life.”  13 V.S.A. § 11.  There is no expressed limit on
the court’s authority to sentence to any term less than “up to” life.  The
statute is silent as to any consideration of the maximum penalty otherwise
provided for nonhabitual offenders.  Another
construction of the act may be arguable, but nothing on the face of the act
indicates that the trial court’s application of § 11 is obviously
erroneous.
¶ 8.            
Defendant offers no plain error argument based on case law, and review
of the cases reflect no obvious error in this sentence.  It is established
that “once the status of habitual criminal is achieved the penalty for each
subsequent crime is subject to such enhancement” under § 11.  State v. Kasper, 137 Vt. 184, 213, 404 A.2d 85, 101 (1979). 
It is also settled that the “function of the habitual offender statute is to replace
the statutory term for the fourth and subsequent felony convictions.”  State
v. Angelucci, 137 Vt. 272, 289, 405 A.2d 33, 42
(1979) (emphasis added).  In Angelucci,
the result of § 11, once invoked against a habitual offender and as then written,
commanded “imprisonment for the term of his natural life,” and no enhancement
less than imprisonment for life could be imposed.  Id.  The
current statute, amended after Angelucci,
allows now for a sentence of “up to and including life.”  No subsequent
case contradicts the observation in Angelucci
that the § 11 sentencing option replaces the penalty structure ordinarily
available in the underlying statutory offense.  Although not previously
challenged on interpretive grounds, the imposition in the trial courts of
minimum sentences enhanced in the same manner employed here, as well as their
affirmance, does not suggest obvious error in such a minimum.  See State
v. Rideout, 2007 VT 59A, 182 Vt. 113, 933 A.2d
706 (upholding § 11 sentence of twenty to fifty years where underlying
lewd and lascivious felony was punishable by up to fifteen years); State v. Ingerson, 2004 VT 36, 176 Vt. 428, 852 A.2d 567
(affirming § 11 sentence of twenty to thirty years on underlying burglary
otherwise punishable by up to fifteen years).
¶ 9.            
Additionally, the supposed error is strictly academic in this particular
case, affecting no substantial rights of defendant and resulting in no
prejudice to him.  The sentence imposed was well less than what defendant
could have received under his plea agreement.  Sentencing under the
agreement was unrestricted, with the parties free to argue for, and the court
free to impose, any sentence authorized for the convictions pleaded to or by
§ 11.  Even without the habitual-offender enhancement, defendant
still faced a potential minimum sentence of nearly eight years had the court
elected to impose a consecutive minimum for each separate conviction.[2]  The court’s rationale for its
five-to-fourteen-year sentence is not challenged on appeal, and the same
minimum sentence would fall entirely within the plea agreement and the court’s
authority to impose a minimum term for each conviction.[3]  On this record, no adversity to
defendant’s interests can be made out on account of the error claimed.  
¶
10.        
Defendant points to no compromise to the criminal justice system
resulting from the claimed error, and none is discerned.  As outlined
above, defendant’s plea agreement contemplated that the court could impose an
aggregate minimum term close, but not identical, to eight years according to
the underlying statutes proscribing the offenses.  The agreement
contemplated that the maximum sentence could be enhanced to life under
§ 11.  Defendant’s sentence of five to fourteen years is neither
contrary to his agreement, nor inconsistent with the minimum authorized by
statutes other than § 11, nor beyond the enhanced maximum allowed by the
Habitual Offender Act.  The sentence imposed was nothing defendant did not
bargain for.  
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 11.         ROBINSON, J., concurring.   If the trial
court had sentenced defendant to two more years of minimum time for violating
an abuse-prevention order than actually authorized by law, I could not agree
that the court’s sentence did not amount to plain error.  If incarcerating
someone two years longer than actually permitted by law is not the kind of
“exceptional circumstance[] where a failure to recognize error would result in
a miscarriage of justice, or where there is glaring error so grave and serious
that it strikes at the very heart of the defendant’s constitutional rights,”
it’s hard to imagine what would be.  See State v.
Carpenter, 170 Vt. 371, 375, 749 A.2d 1137, 1139-40 (2000) (quotation
omitted).
¶ 12.         That
is true even if the legal error leading to the extra two years of minimum
confinement was not patently apparent from the language of the statute. 
And the fact that defendant’s total minimum sentence pursuant to his plea
agreement could have been higher than the sentence he received does not
mean that justice is not offended if the sentence actually assigned is
unlawful.
¶ 13.         I
agree with the majority that there is no plain error in this case for a
different reason: The court’s sentence was not in error at all.  As the
majority rightly notes, the habitual-offender statute replaces the statutory
term for the fourth and subsequent felony convictions.  Ante,
¶ 8.  Nothing in the language or purpose of 13 V.S.A.
§ 11 limits the effect of habitual-offender sentencing to the maximum term
only.  Ante, ¶ 7.  Rather than suggesting
that confining defendant on a charge for two years longer than allowed by
statute would not strike at the heart of defendant’s constitutional rights, I
would decide the pivotal question squarely.
 

 


 


 


 


 


Associate Justice

 
 





[1]  The concurrent misdemeanor sentences were not
appealed.  


[2]  Unless otherwise specified, courts may impose a
minimum, as well as a maximum, term in non life
sentences, so long as the minimum is not identical to the maximum term.  13 V.S.A. § 7031(a).  Sentences for multiple
offenses may be imposed consecutively.  Id.
§ 7032(b).  Defendant pleaded guilty to one count of felony
VAPO punishable without enhancement by up to three years imprisonment, id.
§ 1030(b), one count of escape punishable by up to two years imprisonment,
id.§ 1501(a)(2), one count of resisting arrest punishable by up to
one year imprisonment, id. § 3017(a)(1),
one count of unlawful mischief punishable by up to one year imprisonment, id.
§ 3701(b), and two counts of violating conditions of release each
punishable by up to six months’ imprisonment.  Id.
§ 7559(e).  Thus, arbitrarily subtracting a month from each
maximum so as to avoid identical minimums, defendant was exposed to an
aggregate minimum of seven and a half years on all counts.
 


[3]  Defendant raises no challenge to the maximum
term enhanced pursuant to § 11.



