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



                                           ENTRY ORDER

                             SUPREME COURT DOCKET NO. 14-154

                                        MARCH TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 John A. Haskins                                       }    DOCKET NOS. 845/864-8-13 &
                                                                        1090-9-13 Bncr

                                                            Trial Judge: Nancy S. Corsones

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

        Defendant appeals his sentence following a guilty plea. He argues that the court abused
its discretion in failing to consider a report from the Department of Veterans Affairs (VA)
regarding the possibility of treatment for defendant through the VA. We affirm.

        In August 2013, defendant physically attacked and threatened his girlfriend, and later
contacted her in violation of protective orders and conditions of release. To resolve the resulting
charges, in October 2013, defendant entered guilty pleas to domestic assault, unlawful mischief,
and several counts of both violating conditions of release (VCR) and violating an abuse-
prevention order (VAPO). As part of the plea agreement, the State dismissed an additional
charge of aggravated domestic assault. A presentence investigation report (PSI) was prepared.
The PSI stated that defendant was not eligible for release into the community because of a
detainer placed on him by the Commonwealth of Massachusetts. Defendant did not file any
objections to the PSI.

         In April 2014, the court held a contested sentencing hearing. Defendant’s ex-girlfriend
testified concerning the facts of the assault, and defendant’s behavior after his arrest. She
described how defendant assaulted her, stating that, among other things, he choked her while she
was holding her infant son, attempted to suffocate her, bit her hand, and threatened to rape her
mother and kill her father. She described how defendant contacted her even after she had
obtained a relief-from-abuse order. At the hearing, defendant requested that the court consider a
report, which defendant proffered would show that defendant had been screened for a VA
treatment program. The report was written over six months prior to the hearing and the author of
the report was not available to testify that day. The State objected, arguing that without the
ability to cross-examine the author, there was not enough information to ascertain whether the
program was appropriate for defendant. The court denied defendant’s request to admit the
report. The court explained that the report was almost seven months old, and had not been
included in the PSI. Further, the court explained that there was no witness to explain the
statements in the report or to be available for cross-examination.

        The State argued for a sentence of fourteen and a half years based on the horrific facts of
the crime and the need to protect to the victim and the public. The State emphasized that
defendant had continually disobeyed protection orders and conditions of release. Defendant
requested a sentence of two and a half years to six years to serve, all suspended but nine months.
Defendant argued that this would allow him to be released, sent to Massachusetts, and then sent
back to Vermont for the programming through the VA. The court sentenced defendant to an
effective sentence of 94 to 102 months to serve. The court stated that probation was not
appropriate for defendant because he had shown an inability to comply with court orders as
demonstrated through his numerous VAPOs and VCRs. The court stated that its sentence was
designed to meet the goals of punishment and protection of the victim and the public. Defendant
appeals.

        Defendant argues that the court abused its discretion in denying defendant’s request to
admit the report concerning the VA program. Defendant claims that this evidence was relevant
to the sentencing goal of rehabilitation and it was unreasonable for the court to refuse to consider
it. Evidentiary rulings are committed to the trial court’s discretion and will be reversed only if
that discretion is withheld or abused. State v. Gemler, 2004 VT 3, ¶ 11, 176 Vt. 257.

         Rule of Criminal Procedure 32 sets out the procedure for admitting evidence at
sentencing. Under the rule, defendant has the opportunity to “comment upon any and all
information submitted to the court for sentencing.” V.R.Cr.P. 32(c)(4)(A). A defendant who has
an objection to facts in the PSI must make them three days prior to the sentencing hearing. Id.
Either party may offer evidence, including hearsay, on a disputed fact “with full rights of cross-
examination, confrontation, and representation.” Id. The rule requires that [a]ny other
information submitted to the court for consideration at sentencing shall be disclosed sufficiently
prior to the imposition of sentence as to afford reasonable opportunity for the parties to decide
what information, if any, the parties intend to controvert by the production of evidence.”
V.R.Cr.P. 32(c)(3). This requirement of advance notice is important to ensure the information’s
reliability. See State v. Koons, 2011 VT 22, ¶ 10, 189 Vt. 285 (“To ensure reliability, our rules
establish a process of disclosure and opportunity to rebut.” (quotation omitted)).

        Here, defendant neither objected to the information in the PSI nor noticed his intent to
offer additional evidence. At the hearing, for the first time, he offered a report to establish that
there was programming available to him. The report was written almost seven months before the
hearing, had not been incorporated into the PSI, had not been offered in advance of the hearing
by defendant to rebut any information in the PSI, and was not supported by any live witness who
could be available for cross-examination. The trial court noted that it presented “fertile ground
for cross-examination with respect to what circumstances might be appropriate for purposes of
sentencing.” Under these circumstances, it was wholly within the court’s discretion to exclude
the report at the sentencing hearing.

       Although we conclude that the trial court did not err in excluding the proffered report, we
note our serious doubts as to whether any report would have altered the outcome of this
sentencing. The sentencing judge described the domestic assault in this case as the second-most


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severe case she had seen in twenty years on the bench, and suggested that an attempted murder
charge would not have been inappropriate. After reviewing defendant’s history, his conduct in
connection with the charges for which he was convicted, as well as his conduct since that time,
the trial court concluded that probation was not warranted. The court also stated that it had no
confidence that probation and supervision on the street would be sufficient. Given that
defendant had close to twenty violations of court orders, the Department of Corrections could not
adequately supervise him. Moreover, the trial court concluded that given “the degree of violence
expressed in this case, I’m not seeing a platform upon which rehabilitation can successfully
address that.” The court rejected the suggestion that defendant’s conduct was attributable solely
to drug or alcohol abuse, noting that defendant continued to have a warped perspective on his
conduct and responsibility even after he had spent months in jail and was sober.

       In addition, the court’s sentence was within the statutory guidelines and based on proper
and accurate information. The court’s sentencing decision was derived from the evidence before
it and based on the legitimate sentencing goals of punishment and crime prevention. See
Ingerson, 2004 VT 36, ¶ 13, 176 Vt. 428 (listing some sentencing goals). Based on the
viciousness of the crime and defendant’s demonstrated inability to follow court orders, the court
reasonably determined that probation was not appropriate for defendant.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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