2011 VT 59


State v. Sommer
(2009-417)
 
2011 VT 59
 
[Filed 27-May-2011]
 
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, 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.
 
 

2011 VT 59

 

No. 2009-417

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont, 


 


Unit No.1, Windsor Circuit 


 


 


Gregory Sommer


February Term, 2011


 


 


 


 


Theresa
  S. DiMauro, J.


 

William H. Sorrell, Attorney General, Montpelier, and Emily
A. Carr, Assistant Attorney
  General, Waterbury, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender
General, and Seth Lipschutz, Prisoners’ Rights
Office,
  Montpelier, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
DOOLEY, J.  Defendant Gregory Sommer
appeals from the trial court’s dismissal of his motion requesting sentence
reconsideration and seeking a court order that the Vermont Department of
Corrections (DOC) apply credit to his sentence for the time he spent
incarcerated while awaiting sentencing.  The court dismissed the motion
for lack of jurisdiction.  Defendant argues that the trial court did not
lack jurisdiction over the motion and should have reached the legal issue in
this case and awarded him presentence credit.  We hold that defendant was
premature in bringing his request to the court before the DOC Commissioner had
issued an official sentencing calculation.  Furthermore, we conclude that
defendant’s argument regarding credit fails on the merits.  Accordingly,
we affirm.  
¶ 2.            
On April 8, 2008, defendant was serving a prior sentence (first
sentence) when he was arraigned on eleven different counts of burglary,
attempted burglary, unlawful mischief, and larceny, and held on $100,000
bail.  Defendant’s first sentence is a minimum of twelve months and
fourteen days and a maximum of eight years.  Before his arraignment on the
new charges, defendant had completed the minimum on his first sentence and was
serving his “remaining sentence in the community” pursuant to 28 V.S.A. §
723.  After arraignment, the court revoked defendant’s community status
and incarcerated him for thirteen months between arraignment and
sentencing.  On May 11, 2009, as the result of a plea agreement, the court
sentenced defendant on five of the new counts to six to twelve years to run
concurrently (second sentence). The State dismissed the remaining six
counts.  This second sentence was imposed consecutive to defendant’s first
sentence.  Defendant requested that the DOC give him credit toward his
second sentence minimum for thirteen months during which he was
incarcerated—the time from his arraignment on April 8, 2008, to his sentencing
on May 11, 2009.  
¶ 3.            
On September 3, 2009, before the DOC officially ruled on defendant’s
request, defendant filed a motion requesting that the trial court order the DOC
to provide the credit he sought or, in the alternative, to reduce the minimum
term of his second sentence by thirteen months.  The trial court
dismissed the motion for lack of subject matter jurisdiction, holding: 
 
Determinations regarding credit are the province of DOC.
13 V.S.A. § 7044.  If Defendant disputes DOC’s calculations,
he may file a grievance with the commissioner and thereafter seek review in
superior court under V.R.C.P. 75.  State v. Young, 181 Vt. 603
(2007); see also Martel v. Lanman, 171 Vt. 547
(2000).  The District Court does not have subject matter jurisdiction to
address the issue raised here.  Accordingly, this motion is dismissed for
lack of jurisdiction. 
 
This appeal followed.
¶ 4.            
On appeal, defendant argues that the trial court erred in dismissing his
motion because it presented a legal question and the court therefore had
jurisdiction, and that he is entitled to thirteen months presentence credit
against his second sentence minimum because he had an effective zero minimum
requirement on his first sentence when the court arraigned him on charges
related to his second sentence.  We affirm the trial court’s dismissal of
defendant’s motion because he was premature in filing for superior court review
before the DOC had issued the Commissioner’s calculation under 13 V.S.A. § 7044. 
At the same time, we explain in more detail the options the court had in
responding to the motion.  Ultimately, we hold that defendant’s argument
fails on the merits because precedent from this Court has already decided the
legal question at issue and does not support defendant’s position.  
¶ 5.            
The principal question here is whether defendant properly pursued relief
prior to a decision from the DOC.  Whether a court has subject matter
jurisdiction is a question of law, and we review questions of law de
novo.  Office of Child Support v. Sholan,
172 Vt. 619, 620, 782 A.2d 1199, 1202 (2001) (mem.). 

¶ 6.                 Defendant
claims that the trial court erred in dismissing his motion for lack of
jurisdiction and in deferring to the DOC.  He argues that awarding credit
for presentence incarceration under § 7031(b) is a legal determination for
the sentencing court and that his motion should not have been dismissed for
lack of jurisdiction.  We disagree and conclude that, whether defendant’s
motion presented a legal issue, the trial court acted within its discretion in
dismissing it.  Under 13 V.S.A. § 7044(a), in all cases
where the court imposes a sentence that includes incarceration, the
Commissioner of Corrections must provide the court and the Defender General
with a calculation of “the potential shortest and longest lengths of time the
defendant may be incarcerated taking into account the provisions for reductions
of term . . . based on the sentence or sentences the
defendant is serving, and the effect of any credit for time served as ordered
by the court pursuant to 13 V.S.A. § 7031.”  13 V.S.A. § 7044(a).  The Commissioner’s calculation
for defendant’s second sentence had not been issued when he filed his motion in
the trial court.  The court, therefore, had not yet received all the facts
necessary to make a determination about whether defendant should receive
credit.[1] 
Whether or not the court has jurisdiction over the credit issue here,
defendant’s motion was premature, and the court acted within its discretion in
deferring to the DOC.  
¶ 7.            
The governing precedent for determining the options of the trial court
is State v. Young, 2007 VT 30, 181 Vt. 603, 925 A.2d 1016 (mem.).  Young is based on facts similar to
those before us in this case.  The decision attempts to reconcile the
Commissioner’s responsibility to calculate defendant’s minimum and maximum
sentence under 13 V.S.A. § 7044(a) with the court’s obligation to “give
the person credit toward service of his or her sentence for any days spent in
custody in connection with the offense.”  13 V.S.A.
§ 7031(b).  In Young, we recognized that “[s]ections 7031 and 7044, read together, do not require the
trial court to calculate time served, but rather allow the court to order the
DOC to do so.  In the majority of cases, the DOC is in a far better
position than the trial court to make the calculation . . . .” 
2007 VT 30, ¶ 4.  This Court also
recognized, however, that “there are cases in which the trial court is in a
better position than the DOC to calculate time served, as when the calculation
depends on legal determinations the DOC is less equipped to make.”  Id. ¶ 4 n. *.  Though we noted that
the trial court might be better equipped to make a determination in certain
circumstances, Young does not require the trial court to calculate time
served.  Rather, Young specified that the trial court has
discretion to decide whether to make a calculation in certain cases or to rely
on the DOC to calculate time served.  Id.  Regardless of
whether defendant’s motion presented a legal issue for which a judicial
decision was necessary, without the Commissioner’s calculation, the trial court
in this case did not have sufficient information to respond to defendant’s
request.  The court thus acted within its discretion when it dismissed
defendant’s motion.
¶ 8.            
For future cases, we clarify the other ways that the superior court can
determine whether defendant has received proper sentence credit “for any days
spent in custody in connection with the offense for which sentence was
imposed.”  13 V.S.A. § 7031(b).  As set out
in Young, the sentencing court can decide that calculation of the time
served involves a legal question that is best resolved by the court, and it can
specify the extent of the credit, if any.  2007 VT 30, ¶ 4 n. *; see State
v. Blondin, 164 Vt. 55, 56, 665 A.2d 587, 589
(1995) (considering defendant’s case where sentencing court denied any credit
and defendant argued that “the plain meaning of
13 V.S.A. § 7031(b) and the case law construing the statute
require that he be given credit for the six months he spent in jail before he
was sentenced” on a subsequent charge).  Second, the court can leave the
sentence calculation to the Commissioner under 13 V.S.A. § 7044(a). 
In that case, the normal remedy to challenge the Commissioner’s conclusion
would be an appeal to the Civil Division of the Superior Court under Vermont
Rule of Civil Procedure 75.  Young, 2007 VT 30, ¶ 5; see also Martel
v. Lanman, 171 Vt. 547, 547, 759 A.2d 65, 66
(2000) (mem.) (employing
this method of review in challenge claiming Commissioner’s credit decision was
inconsistent with 13 V.S.A. § 7031(b)).  The third method
is review of the sentence under Vermont Rule of Criminal Procedure 35(a) to
determine whether the sentence is illegal under 13 V.S.A. § 7031(b) because it
fails to give defendant credit for days spent in custody in connection with the
crime(s) for which defendant is sentenced.  See State v. Arcand, 403 N.W.2d 23, 24, 24 n. 1 (N.D. 1987)
(considering defendant’s motion under North Dakota’s criminal rule, Rule 35(a),
arguing that he should have received credit for 49 days spent in custody “as a
result of the criminal charge for which the sentence was imposed” (quotation
omitted)); see also Young v. State, 46 P.3d 295, 297 (Wyo. 2002)
(considering defendant’s motion pursuant to Wyoming criminal rule, Rule 35(a),
claiming entitlement to 120 days credit for time served from arrest for
probation violation until resentencing and release into probation program); United
States v. Martinez, 319 F.App’x 805, 806 (11th
Cir. 2009) (per curiam) (considering defendant’s
motion under former Federal Rule of Criminal Procedure 35(a) requesting credit
against his federal sentence for time he was serving state sentence for earlier
crimes).  For purposes of such review, the Commissioner’s determination is
considered final and reflects the determination of the effect of the sentence
imposed.  The question is whether the sentence imposed, including the
credit given for time served, if any, is lawful.  As defendant tried to do
in this case, the motion can include a request for sentence reconsideration
under Rule 35(b) if such a request is timely under the rule.  See State
v. Platt, 158 Vt. 423, 426, 428 n. 1, 610 A.2d 139, 142, 143 n. 1 (1992)
(considering motion for review of sentence under Rule 35, and declining to
reach merits under Rule 35(a), but reaching merits under Rule 35(b) and stating
that, “Sentence reconsideration can be used to correct an illegal sentence or
one ‘imposed in an illegal manner.’  V.R.Cr.P.
35(a). . . . More often it is used to modify a lawful sentence.
 V.R.Cr.P. 35(b).”).
¶ 9.            
While we agree that the trial court acted within its discretion in
dismissing defendant’s motion, we decide to end this controversy by reviewing
the merits of defendant’s claim.  The merits of this case involve a
fundamental legal question, and therefore “our review is nondeferential and
plenary.”  Francis v. Hofmann, 2008 VT 137,
¶ 8, 185 Vt. 580, 969 A.2d 97 (mem.). 
Upon review, we conclude that defendant’s claim fails on the merits. 
Defendant argues that § 7031(b) requires that he receive credit for time served
against his second sentence minimum, thereby reducing his overall minimum by
thirteen months.  He argues that this result would not give him double
credit because credit would be applied only against his aggregated
minimum.  We conclude otherwise.  By requesting that the thirteen
months now be credited against his aggregated minimum, defendant is really
asking that the time be credited to both his new minimum as well as to his old
maximum, thus creating a double credit situation.[2] 
¶ 10.         This
Court has already considered and rejected defendant’s argument in a number of
cases.  Two cases that relate directly to defendant’s claim are State
v. Blondin, and Martel v. Lanman. 
In Blondin, defendant sought credit for the
presentence time he had spent in jail “toward both his underlying sentence and
his new sentence[,] even though the district court
determined that the sentences should be served consecutively.”  164 Vt. at
56, 665 A.2d at 589.  This Court declined to
grant the defendant’s request, finding that it would lead to double credit and
effectively make the underlying and new sentences concurrent for application of
the presentence jail time.  Id.  We held that, 
when a defendant is incarcerated based on conduct that leads
both to revocation of probation or parole and to conviction on new charges, the
time spent in jail before the second sentence is imposed should be credited
toward only the first sentence if the second sentence is imposed consecutively,
but toward both sentences if the second sentence is imposed concurrently. 

 
Id. at 61, 665 A.2d at 592.  In reaching this conclusion, we noted
that if “parole violators who are jailed . . . on new charges [are] given
double credit for time served before imposition of either the new or the
underlying sentence . . . [s]uch
an irrational result would be contrary to the view of the vast majority of
courts construing virtually identical statutes in similar situations.”
 Moreover, “it would undermine the trial court’s ability to impose
consecutive sentences,” instead “provid[ing] incentives for both defendants and the State to try to
manipulate the timing of judicial proceedings so as to shorten or lengthen the
ultimate sentence served.”  Id. at 56–57, 665
A.2d at 589.  
¶ 11.         The
general rule adopted in Blondin was reaffirmed
by this Court in Lanman, under facts similar
to those before us in this case.  171 Vt. at 548, 759
A.2d at 66.  In Lanman, the
defendant had completed the minimum term under his first sentence and sought credit
against the minimum term of a second sentence for time served pending the
second sentence.  Relying on Blondin, we
declined the request, holding that when he was incarcerated he was serving the
first sentence beyond the minimum term and was entitled to nothing more.  Id.  

¶ 12.         The
rationale in Blondin has been uniformly
recognized by both federal and state courts in jurisdictions having statutory
language similar to 13 V.S.A. § 7031(b).[3] 
See State v. Boettcher, 423 N.W.2d 533, 536-37 (Wis. 1988) (observing
“federal courts have been unanimous in concluding that, in the case of
consecutive sentences, there is no requirement that there be a time credit
against more than one sentence”; and noting “federal courts are firm and
unanimous that there shall be no dual credit for the same presentence time
served”); see also State v. Price, 2002 MT 150, ¶ 29, 50 P.3d 530, 535
(listing other jurisdictions which have consistently interpreted similar
statutes to disallow double credit).  In Lanman, we explained that the purpose of 13 V.S.A. § 7031(b)
is to ensure that offenders unable to make bail do not serve longer sentences
than those who can make bail, and we noted that the
defendant’s incarceration was “the result of his convictions for multiple
offenses, not pretrial incarceration for failure to make bail.”  171
Vt. at 548-49, 759 A.2d at 66.  Here, defendant similarly received a longer sentence
as a result of multiple convictions, not failure to make bail.
¶ 13.         Defendant
urges that we narrow Blondin because minimum
and maximum terms must be treated as separate and distinct.  Cf. St. Gelais v. Walton, 150 Vt. 245, 248, 552 A.2d 782, 784
(1988) (explaining that minimum and maximum terms should be treated separately).
 We rejected this argument in Lanman and
see no reason to revisit it here.  Nor are we persuaded by defendant’s
attempt to distinguish Lanman and Blondin because his presentence credit commenced
after revocation of his community status.  He argues in this case that
giving him credit against his second sentence minimum term does not run afoul
of the restriction on double credit.  We disagree.  Community status
applies “[w]hen a sentenced offender has served the minimum term of the total
effective sentence, [and] the department . . . release[s]
the offender from a correctional facility under section 808 of [Title 28]
for the offender to participate in a reentry program while serving the
remaining sentence in the community.”  28 V.S.A. § 723 (emphasis
added).  Under community status, the DOC “extend[s]
the limits of the place of confinement of an inmate,” but the inmate is still
confined.  28 V.S.A. § 808. 
Community status changes only the place of confinement and is not the
equivalent of release.  Defendant was still confined when he was arraigned
for the crimes that led to his second sentence, and he was moved back to jail
because of his own criminal actions.  
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 











[1] 
We acknowledge that the statute requires the calculations to be issued within
thirty days of sentencing and that the time limit was exceeded in this
case.  Defendant did not, however, raise any arguments about the issuance
of the Commissioner’s calculations; instead, he simply asked the court to make
a decision before it had been given the relevant sentencing calculations from
the DOC.


[2] 
We acknowledge that, like the trial court, we do not have the Commissioner of
Correction’s sentencing calculations, which should be provided under
13 V.S.A. § 7044, but we presume that defendant will be given
credit towards his first sentence maximum, and defendant acknowledges in his
brief that “[t]hese thirteen months should be credited
to both the minimum and the maximum of [defendant’s] aggregate sentence.” 



[3] 
In Blondin, this Court compared
13 V.S.A. § 7031(b) with an analogous section of the federal
code and noted that “federal courts have unanimously refused to allow double credit . . . in situations similar to
the one presented here.” 164 Vt. at 57-58, 665 A.2d at 590.
 



