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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-217

                                        MARCH TERM, 2013

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 David C. Boglioli                                     }    DOCKET NO. 1070-8-08 Wmcr

                                                            Trial Judges: Amy M. Davenport
                                                                          Karen R. Carroll

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

       Defendant appeals the denials of his motions to disqualify the presiding judge and for
sentence reconsideration. Defendant argues that the administrative judge abused her discretion
by denying the motion to disqualify and by precluding discovery on the motion. He also
contends that the trial court abused its discretion in denying his motion for sentence
reconsideration by not properly considering mitigating factors. We affirm.

        Following a conviction of voluntary manslaughter, defendant received a sentence of ten
to fifteen years. This Court affirmed. State v. Boglioli, 2011 VT 60, 190 Vt. 542 (mem.).
Thereafter, in September 2011, defendant filed a motion for sentence reconsideration. See
V.R.Cr.P. 35(b). Before considering the motion, the presiding judge disclosed that her husband
had, since the trial, become of-counsel at the same law firm where the Windham County State’s
Attorney’s husband was also of-counsel. The judge expressed that the two attorneys had no
financial ties to each other and that she did not believe the situation presented grounds for
recusal. In January 2012, defendant moved to disqualify the judge, asserting that such
disqualification was mandatory because her “impartiality might reasonably be questioned.”
Vermont Code of Judicial Conduct, A.O. 10, Canon 3E(1). Defendant served subpoenas duces
tecum on the law firm, the judge’s husband, and the State’s Attorney’s husband seeking
information about the financial arrangement at the firm. The firm moved to quash the subpoenas
and attached an affidavit from a firm officer and shareholder averring that the two husbands were
paid a flat salary by the firm and did not profit from the other’s work. The trial judge referred
the motions to the administrative judge.

       In March 2012, the administrative judge denied the motion to disqualify and dismissed
the motion to quash as moot. The administrative judge concluded that there was no connection
between the husbands’ relationships to the same firm and the case or the trial judge’s role in the
case.

       The trial judge then held a hearing on the motion for sentence reconsideration. The court
issued a written order denying that motion. The court concluded that defendant’s current health
needs did not provide a basis for reconsideration because those issues arose after sentencing, and
that the mitigating factors highlighted by defendant had been considered and did not warrant a
change in the sentence. Defendant appeals.

        Defendant first argues that the administrative law judge abused her discretion in
precluding further discovery on the motion to disqualify, and in denying his motion to disqualify
the presiding judge. The Vermont Code of Judicial Conduct provides that a judge should
disqualify herself when her “impartiality might reasonably be questioned.” A.O. 10, Canon
3E(1). “This standard is met 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). We accord judges subject to disqualification motions “a presumption of honesty and
integrity.” In re Margaret Susan P., 169 Vt. 252, 256 (1999) (quotation omitted). When a judge
declines to recuse herself, she must refer the matter to the administrative judge without ruling on
the motion. V.R.Cr.P. 50(d)(3). The administrative judge has discretion in deciding the issue
and “will be reversed only if the judge has abused his [or her] discretion such that no reasonable
basis exists for the decision.” In re Margaret Susan P., 169 Vt. at 256.

         We begin with the question of the subpoenas. Defendant sought information from the
trial judge’s husband’s law firm regarding the extent to which the judge’s husband, as of-counsel
at the firm, profited from the success of the State’s Attorney’s husband, another of-counsel. In
response, the firm moved to quash. The administrative judge dismissed the motion to quash as
moot concluding that no further discovery on this financial information would alter the
disposition of the motion to disqualify. We agree. The whole point of the subpoenas was to gain
more information about a possible financial connection between the husbands. However, even
assuming that some financial benefit could accrue to the judge’s husband based on the success of
the State’s Attorney’s husband, this fact would not affect the motion to disqualify. The possible
financial link between the judge’s husband and the State’s Attorney’s husband, even if proven,
provided an insufficient basis to disqualify the judge because it was not connected to the current
litigation. No one at that firm was involved in this case. Further, the success of the trial judge’s
husband and the State’s Attorney’s husband could not be influenced in any manner by this
litigation. There was simply no connection between any profit sharing and the bias alleged in
this case.

        On the substance of the motion to disqualify, we conclude that the administrative judge
did not abuse her discretion. Defendant relied on State v. Lincoln, 165 Vt. 570 (1996) (mem.)
(per curiam), in which this Court concluded that a judge was disqualified from hearing a case
where the key witness was a police officer who was the judge’s husband’s supervisor. Because
the case turned on the credibility of the supervisor as a witness in the case, this Court concluded
that the supervisory relationship between the witness and the judge’s husband was enough for a
reasonable person to question the impartiality of the judge. Id. at 571. Quoting a case we cited
favorably in Lincoln, defendant asserts that here “both husbands ‘possess substantial powers to
affect and enhance’ each other’s professional futures, which might cause an objective observer to
question Judge Carroll’s impartiality.” The administrative judge distinguished Lincoln on
several grounds. Unlike Lincoln, here the connection between the husbands is not related to this
case. One would have to assume that the success of the State’s Attorney’s Office 1 would
somehow impact the success of the State’s Attorney’s husband who would in turn help the
judge’s husband. This possible link is too attenuated for a reasonable person to question the
judge’s impartiality.

       1
           All of the evidence indicates that a Deputy State’s Attorney handled the State’s
response to the motions for sentence reconsideration and to disqualify. The analysis would not
change, however, even if the State’s Attorney was directly involved in this case.
                                               2
        Even in cases where a judge’s spouse has a closer connection to the case, courts have not
required recusal based on allegations that the connection creates an appearance of impropriety.
See In re Billedeaux, 972 F.2d 104, 106-07 (5th Cir. 1992) (concluding, where judge’s spouse
was affiliated with firm that had represented defendant, judge’s interest, if any, was “too remote
and speculative to support or suggest recusal”); Adair v. Dep’t of Educ., 709 N.W.2d 567, 581
(Mich. 2006) (concluding no appearance of impropriety and denying motion to disqualify where
justices’ spouses were employed by state attorney general but not involved in case or in
supervisory role over attorneys in case). Here, the alleged interest is even more remote. The
trial judge’s husband was employed at the same firm as the State’s Attorney’s husband, but
neither attorney nor their firm was involved in the case before the court or had represented the
defendant in the past. The administrative judge properly exercised her discretion in denying the
motion.

       Next, defendant claims that the trial court erred in denying his motion for sentence
reconsideration. We apply a well-established standard of review in sentence reconsideration
cases. We accord the trial court 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 district 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).

        The basic facts underlying defendant’s conviction are relevant. See Boglioli, 2011 VT
60, ¶¶ 2-3. The victim was defendant’s neighbor, and had a history of tormenting defendant.
Defendant testified he was afraid of the victim. On the day of the shooting, defendant took out
his garbage and brought a gun with him. He encountered the victim, who had an axe. Defendant
pulled the trigger and fatally shot the victim. Defendant was charged with second-degree murder
and raised self-defense. The jury convicted on the lesser-included offense of voluntary
manslaughter. At sentencing, the State recommended a sentence of twelve to fifteen years.
Defendant requested a two-to-five-year sentence, all suspended but fourteen months to serve.
The court imposed a sentence of ten to fifteen years. The court took into account the victim’s
provocation of defendant and defendant’s lack of a criminal record, but also found the force
defendant used was excessive and that defendant could have prevented conflict. The court also
considered defendant’s lack of remorse. The court rejected defendant’s recommended sentence
as devaluing the taking of a human life.

        Defendant first contends that he should be afforded leniency in his sentence because he
was not the aggressor in the altercation with the victim. The trial court considered the victim’s
provocation in its original sentencing decision and declined to alter the sentence following
defendant’s motion, noting that the jury concluded defendant did not act in self-defense. On
appeal, defendant contends that the court failed to understand his argument. While the jury
found that he did not act in self-defense, defendant asserts that this would not be inconsistent
with a finding that he was not the original aggressor and that he was provoked. There was no
error on this point. At sentencing, the court acknowledged that the victim had provoked
defendant and took this into account. The court did not abuse its discretion in concluding that no
further sentence reduction was warranted on this basis.

        Defendant also claims that some of the factors that the court found were aggravating were
simply elements of the crime and should not have been held against him. Defendant cites the
court’s consideration of the facts that the killing was not justified and excessive force was used.
Defendant also claims that it was improper for the court to consider defendant’s actions in
                                                3
choosing not to move and going to the trash dumpster that day because he was entitled to do
those things. The court’s reference to defendant’s decisions not to move and to go to the
dumpster that day were part of its assessment that defendant could have prevented conflict with
the victim, and were not improper. Further, it was not error for the court to consider facts about
the crime in arriving at an appropriate sentence. The sentence was within the statutory maximum
so the court was not using aggravating factors to enhance or deviate from the statutory sentence.
See State v. Thompson, 150 Vt. 640, 644 (1989) (explaining that circumstances that persuade
judge to raise the sentence within statutory range are not enhancements). Rather, the court was
considering defendant’s history and character, and the facts of the crime in its sentencing
decision, which was entirely appropriate. Id. at 645 (explaining that sentencing court may
properly consider, among other things, “the nature and propensities of the offender, the particular
acts by which the crime was committed, [and] the circumstances of the offense”).

        Finally, defendant asserts that the court failed to reweigh the mitigating factors such as
the victim’s history of tormenting and provoking defendant, and defendant’s lack of a criminal
record. The court considered the victim’s provocation and defendant’s lack of a criminal record
in its original sentencing decision. The court declined to further reduce defendant’s sentence.
Defendant fails to demonstrate that the original sentence was not the product a thoughtful and
careful consideration of the circumstances and that the court abused its discretion in denying
further sentence reduction on this basis. See King, 2007 VT 124, ¶ 6 (purpose of sentence
reconsideration is to view sentence factors without emotion of trial and trial court has wide
discretion in determining factors to consider at sentence reconsideration).

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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