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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-112

                                       JANUARY TERM, 2014

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Grand Isle Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Eric J. Edson                                         }    DOCKET NO. 122/130-12-08 Gicr

                                                            Trial Judge: Amy M Davenport (recusal
                                                            motion); Ben W. Joseph (sentencing)

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

        Defendant pled guilty to two counts of burglary and one count of operating a vehicle
without the owner’s consent, and was sentenced to ten to fourteen years. He appeals from the
sentence, asserting that: (1) his motion to disqualify the sentencing judge was improperly denied;
and (2) the sentencing court abused its discretion in denying a continuance motion. We affirm.

        The facts and procedural history may be summarized as follows. This case arose from
two separate burglaries on the same day in late November 2008. In the first, defendant broke
into a home in Grand Isle and stole some jewelry. The break-in triggered an alarm, and the
police responded to the scene. While there, they received a call about another burglary several
miles away. The homeowner at the second location reported that he had arrived home in the
early afternoon, saw a strange vehicle parked in the driveway, retrieved a handgun from his car,
and entered the house. There, he saw defendant in his office and ordered him to lie down.
Defendant ran into a bathroom and escaped through a window. The homeowner discovered that
money was missing from his wife’s sock drawer. After fleeing the residence, defendant stole a
vehicle from a nearby residence; it was later found abandoned in Grand Isle. Defendant was
identified as the perpetrator and arrested the following day. Jewelry found in his vehicle was
identified as having been stolen during the first burglary.

        In March 2010, pursuant to a plea agreement, defendant entered a guilty plea to two
counts of burglary and one count of operating a vehicle without the owner’s consent, and other
charges were dismissed. Under the agreement, the state was permitted to argue for the
maximum sentence of ten to fourteen years to serve, and defendant was free to argue for a lesser
sentence. A sentencing hearing scheduled for May 2010 was continued to the following June on
the State’s motion. The June 2010 hearing was continued to July 2010 on defendant’s motion to
allow additional time to review the Presentence Investigation Report and to allow a forensic
psychologist retained by defendant, Dr. Thomas Powell, to complete his evaluation. The July
2010 hearing was continued to August 12, 2010, again on defendant’s motion, on the ground that
Dr. Powell had a conflict with the scheduled hearing date.
       In early July 2010, an additional attorney, Kurt Hughes, entered an appearance for
defendant as co-counsel, and later that month he filed a motion to continue the August 12
hearing on the grounds that he was new to the case, that he needed additional time to prepare a
motion to disqualify the sentencing judge, and that Dr. Powell was again unavailable on the
scheduled hearing date. The trial court denied the motion on August 5, 2010, noting that the
matter had been continued several times already. On August 11, 2010, the day before the
sentencing hearing, defendant filed a motion to reconsider the continuance, as well as a motion
to disqualify the sentencing judge. The disqualification motion was predicated on two
grounds—first, that the sentencing judge was a member of the Chittenden County Public
Defender’s Office in the early 1990s when the office represented defendant in several criminal
matters, and the trial judge had actually represented defendant at an arraignment in June 1992;
second, that the judge lived approximately eight tenths of a mile by car, and 500 yards by foot,
from the one of the residences that defendant had admitted to burglarizing in this matter.

        The trial court denied the motion for reconsideration at the beginning of the sentencing
hearing, citing the previous continuances. The judge denied the motion for disqualification in a
written ruling on the same day, stating that he had “no recollection” of his representation of
defendant at the arraignment some eighteen years earlier, and that he was unaware of where the
burglary had occurred and had never been to the home in question. The matter was then referred
to the Administrative Judge, who subsequently issued a written ruling denying the motion. The
Administrative Judge found no conflict resulting from the trial judge’s earlier employment with
the Public Defender’s Office, noting that there was no overlap with the current offenses or basis
for concern that the judge had any extra-judicial knowledge of facts relevant to the case, and that
his “extremely minor prior representation” of defendant at an arraignment had occurred nearly
twenty years earlier. The Administrative Judge also found that the proximity of the trial judge’s
residence to one of the burglarized homes provided “no basis for questioning his impartiality,”
noting that they were not close neighbors, and that there no claim of any extra-judicial
knowledge of evidentiary facts or personal relationship with the victim.

        At the sentencing hearing, the State argued for the maximum sentence, citing
defendant’s extensive criminal record, which spanned twenty-three years and included many
prior convictions, primarily property crimes such as theft, burglary, and larceny, as well as
numerous escapes and furlough violations. Defendant was on parole at the time of the most
recent burglaries. Defense counsel, in response, noted that none of the offenses involved
physical violence, and cited the probation officer’s observation in the PSI that defendant had
been doing well for several years on parole until the instant offenses, and was capable of doing
well with a high level of support and supervision. Finding that defendant’s prior record was
“extraordinary,” that prior efforts at treatment and rehabilitation had clearly failed, and that the
risk of reoffending was substantial, the trial court concluded that a substantial sentence was
warranted and imposed the maximum sentence of ten to fourteen years.

        In November 2010, defendant filed a motion to reconsider sentence based, in part, on Dr.
Powell’s report, which was filed with the motion. In the motion, defendant recalled that Dr.
Powell was unable to testify at the hearing because the continuance motion had been denied, and
asserted that that his report and testimony were essential “to get a full picture” of defendant. Dr.
Powell’s report reviewed defendant’s family history and health records, noted that he came from
an unstable home with neglectful parents and significant substance abuse issues, had been
diagnosed with ADHD, and had a history of serious drug abuse, but nevertheless was motivated
for further treatment, was generally non-violent, and had “demonstrated sustained success when
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he is sober and fully supervised.” At the hearing on the motion, the trial court indicated that it
had reviewed Dr. Powell’s report but remained persuaded that the sentence was correct,
observing that defendant was a “hard-core criminal” with “no realistic hope of rehabilitation”
and that “a relatively long minimum is appropriate.” Thus, apart from adjusting defendant’s
sentence for time served, the court denied the motion. This appeal followed.

        Defendant contends the Administrative Judge erred in denying his motion to disqualify
the sentencing judge. “[T]he question of recusal hinges on the administrative judge’s exercise of
discretion, and . . . this Court will disturb the . . . decision only if there is no reasonable basis for
the decision.” State v. Bailey, 2010 VT 21, ¶ 8, 187 Vt. 624 (mem.) (quotation omitted).
Furthermore, the judge in question is generally afforded a presumption of “honesty and integrity,
with the burden on the moving party to show otherwise.” Klein v. Klein, 153 Vt. 551, 554
(1990) (quotation omitted). The standard for disqualification requires recusal “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).

        Assessed in light of these standards, we discern no basis to disturb the ruling. There is no
suggestion that the trial judge here had any extra-judicial knowledge of the case arising from his
employment with the Public Defender’s Office, and the judge affirmed that he had no
recollection of representing defendant at the arraignment eighteen years earlier. Although
defendant asserts that this was sufficient, nevertheless, to allow a reasonable, disinterested
observer to question the judge’s impartiality, we have rejected similar claims in closely
analogous circumstances. See, e.g., State v. Pellerin, 164 Vt. 376, 379-80 (1995) (upholding
denial of disqualification motion where judge, as member of prosecutor’s office, signed
information against defendant twenty years earlier but judge had no memory of the case and his
earlier role was “de minimis”); State v. Cleary, 161 Vt. 403, 405-06 (1994) (affirming denial of
motion to strike competency order entered by trial judge who had been assigned to represent
defendant ten years earlier where judge had “no recollection” of the prior representation and
there was no other showing of bias). Accordingly, we find no abuse of discretion in this regard.

         Defendant also asserts that a reasonable, disinterested observer would be compelled to
question the court’s impartiality based on the proximity of the judge’s residence to one of the
burglarized homes. Defendant posits that the court would have an interest in keeping his
neighborhood safe and would harbor a “more intense desire to punish [defendant] harshly,” or at
least that this would appear to be the case. We are not persuaded. The victim was not a close
neighbor of the trial judge, but lived almost a mile away by car, and the fact that the crime
occurred in the same general neighborhood does not, in our view, raise a reasonable inference of
bias. See State v. Sherman, 842 A.2d 859, 879-80 (N.J. Sup. Ct. App. Div. 2004) (holding that
trial judge’s residence in community where crime occurred did not require recusal), overruled on
other grounds by State v. Dalziel, 867 A.2d 1167 (N.J. Sup. Ct. App. Div. 2005). As the
Administrative Judge here cogently observed: “Crime is a fact of life. That it occurs within a
mile of a judge’s residence is insufficient to disqualify that judge from presiding over a resulting
case.” The disqualification motion was properly denied.




          Defendant initially failed to file a timely appeal, but the trial court ruled in a subsequent
post-conviction relief proceeding that the omission was counsel’s fault, and restored defendant’s
right to appeal.
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        Defendant further contends that the court abused its discretion in denying his motion to
continue to allow Dr. Powell to testify at the sentencing hearing about defendant’s psychological
makeup and potential for rehabilitation. Rulings on motions to continue are entrusted to the
sound discretion of the trial court, and we will not interfere with the court’s decision if there was
a reasonable basis to support it. State v. Schreiner, 2007 VT 138, ¶ 14, 183 Vt. 42. Moreover,
the trial court enjoys considerable discretionary authority to control its case docket and judicial
resources. See State v. Jones, 157 Vt. 553, 559 (1991) (“Our continuance rule leaves control of
docket management with the courts.”). The record here discloses that defendant had been
previously granted two continuances of the sentencing hearing, the last of which was in late June
2010 specifically to accommodate Dr. Powell, who was said to be unavailable for the scheduled
sentencing the following July. Thus, defendant was afforded ample time and opportunity to
ensure that his witness was available for the rescheduled hearing in mid-August 2010, and we
cannot conclude, under the circumstances, that the court abused its discretion in denying yet
another motion on the same ground. Moreover, we note that the trial court reviewed Dr.
Powell’s report in connection with the motion for reconsideration, and that the report thoroughly
discussed defendant’s family history, psychological makeup, and rehabilitation potential. The
court remained persuaded that the sentence imposed was appropriate. Defendant has not shown
how Dr. Powell’s in-person testimony was prejudicial to the outcome. Accordingly, we find no
basis to disturb the court’s ruling on the motion for continuance.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Geoffrey W. Crawford, Associate Justice




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