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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-288

                                       JANUARY TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit
    v.                                                 }    Criminal Division
                                                       }
 Stephen R. Bain                                       }    DOCKET NO. 897/915-7 03 Wmcr

                                                            Trial Judge: David Suntag

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

         Petitioner Stephen Bain appeals pro se from the denial of his motion to correct an alleged
illegal sentence. We affirm.

        Petitioner is a habitual offender who was convicted of one count of possession of stolen
property and one count of possession of marijuana. His convictions were affirmed by this Court,
State v. Bain, 2009 VT 34, 185 Vt. 541. The Court also upheld the denial of a series of post-
judgment motions filed by petitioner. See State v. Bain, No. 2009-235, 2010 WL 287030 (Vt.
Jan. 15, 2010) (unpub. mem.), available at http://www.vermontjudiciary.org/d-upeo/upeo.aspx.
In March 2011, petitioner filed a motion to correct an illegal sentence. He argued that the trial
court lacked authority to impose a sentence consecutive to one that he was already serving.
Several additional written responses by the State and by petitioner followed. The court denied
petitioner’s request in a written order based on the filings and without holding a hearing.

        The court found as follows. At the time that petitioner committed the above offenses, he
was on parole. At some point subsequent to, but before the disposition of, the new offenses,
petitioner’s parole was revoked by the Parole Board. On July 26, 2006, petitioner was sentenced
on the charges cited above, receiving an overall effective sentence of 5-10 years to be served
consecutive to the sentence that he was then serving.

       Petitioner argued that the consecutive sentences were illegal in light of 28 V.S.A. § 554,
which states that the parole board “may permit any parolee who commits a crime while on parole
and who is convicted and sentenced therefor to serve the sentence concurrently with the term
under which he or she is paroled.” Petitioner asserted that the statute precluded the trial court
from imposing a consecutive sentence in this case. The court rejected petitioner’s interpretation
of § 554. By its plain language, the court explained, the statute would apply to a “parolee” if that
person commits a crime while on parole and then receives a new sentence for that crime. If
parole has been revoked by the time of the new sentence, however, the offender is no longer a
“parolee.” Thus, the statute would not apply to such an individual. The court reasoned that once
the parole board terminated its authority by revoking parole, any subsequent consecutive
sentence did not and could not affect the parole board’s authority. The court was equally
unpersuaded by the case on which petitioner relied, Woodmansee v. Stoneman,
133 Vt. 449 (1975). In that case, unlike here, the defendant was still a “parolee,” that is, he was
still on parole, when a subsequent consecutive sentence was imposed.

       The court noted that the authority to impose consecutive sentences is generally set forth
in 13 V.S.A. § 7032, which provides:

                If a person who has been sentenced to a term or terms of
               imprisonment is convicted of another offense punishable by
               imprisonment before he has been discharged from the former
               sentence or sentences, the court may sentence him or her to an
               additional term of imprisonment and shall specify whether this
               additional term shall be served concurrent with or consecutive to
               the prior sentence or sentences.

        The court found that this was exactly what had occurred in the instant case. Petitioner
had not been discharged from his prior sentence at the time of the second sentencing. While
petitioner had been on parole at one point, his parole had been revoked, and he had been sent
back to prison. The court found that the trial judge had clearly acted within her discretion under
13 V.S.A. § 7032 in sentencing petitioner to a sentence that was consecutive to an already
existing term of imprisonment. It thus concluded that petitioner failed to show why his sentence
was illegal, and it denied his motion. This appeal followed.

        Petitioner first argues that the court erred by failing to hold a hearing on his motion.* We
reject this argument. Vermont Rule of Criminal Procedure 35 states that the court “may correct
an illegal sentence at any time,” and it provides that a request for relief under this rule shall be by
motion and the procedure governed by Vermont Rule of Criminal Procedure 47. Rule 47(b)(2)
provides that “[i]n any case, the court may dispose of the motion without argument.” The issues
before the court here were straightforward, and petitioner was provided ample opportunity to
advance his arguments through the written pleadings. Thus, the court did not err in deciding the
case without a hearing.

        The court similarly did not err in interpreting 28 V.S.A. § 554 and in distinguishing the
instant case from Woodmansee. As we have consistently held, where the meaning of a statute is
unambiguous, we are required to enforce it according to its terms. See, e.g., Marden v. Walton,
142 Vt. 204, 207 (1982). We agree with the court that, by its plain terms, the statute is
inapplicable here. The Parole Board’s authority is not implicated in this case. Petitioner’s parole
had been terminated at the time he was sentenced on new charges, and the trial court had
authority under 13 V.S.A. § 7032 to impose consecutive sentences. Nothing in Woodmansee
compels a contrary result. As the trial court explained, the defendant in Woodmansee was
actually on parole at the time that a sentence for new charges was imposed. He was thus a

       *
          We have not considered any materials contained in petitioner’s printed case that were
not part of the record below. Hoover v. Hoover, 171 Vt. 256, 258 (2000) (stating that review on
appeal is confined to the record and that Court “cannot consider facts not in the record”).

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“parolee” within the meaning of 28 V.S.A. § 554. See 133 Vt. at 461 (noting that trial court is
“powerless” to terminate parole as “[s]uch termination is the administrative function of the
parole board”). The same cannot be said for petitioner here.

        We do not consider petitioner’s argument that he is actually seeking relief under Vermont
Rule of Civil Procedure 60(b), a civil rather than a criminal rule, both because the rule is
inapposite and because the argument was not raised below. See Bull v. Pinkham Eng’g Assocs.,
Inc., 170 Vt. 450, 459 (2000) (“Contentions not raised or fairly presented to the trial court are not
preserved for appeal.”). We similarly do not consider his argument that his equal protection
rights were violated as this argument was not raised below. Finally, we note that petitioner did
not provide any support below for his assertion that the sentences he was serving at the time
parole was revoked “would have expired if they had been properly calculated by the State.” PC
1. In his initial motion, petitioner stated that “notwithstanding” any alleged miscalculation of his
first sentence, he would have reached his maximum term had the sentences run concurrently
rather than consecutively. Aside from the quoted language above, petitioner did not mention the
issue about sentence calculation again in any of his subsequent pleadings. Petitioner mentioned
nothing before the trial court about “reduction in term credits” nor did he specifically allege that
the Department of Corrections miscalculated his credit for time served. We will not address
these arguments for the first time on appeal. It is evident that petitioner’s motion was based on
his assertion that, under 28 V.S.A. § 554, it was illegal for the trial court to have imposed
consecutive sentences. The trial court considered and rejected this argument and denied
petitioner’s motion. In reaching its decision, the court did not err by failing to specifically
address petitioner’s unsubstantiated assertion about the length of the sentences he was serving at
the time that parole was revoked.

       Affirmed.



                                                 BY THE COURT:

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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