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




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-095

                                     NOVEMBER TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Sara B. Ennis                                         }    DOCKET NO. 1117-10-13 Bncr

                                                            Trial Judge: David A. Howard


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

        Defendant appeals her sentence following a guilty plea to simple assault. Defendant
argues that the court abused its discretion by imposing a higher sentence after her initial sentence
was invalidated in a post-conviction relief proceeding. We affirm.

        In September 2003, defendant was charged with simple assault, 13 V.S.A. § 1023(a)(1),
based on allegations that she punched another woman in the forehead. The charge carries a
maximum penalty of one year imprisonment. Id. § 1023(b). In October 2013, defendant pled
guilty to simple assault with an agreed sentence of zero-to-six months. The following year, she
filed a petition for post-conviction relief (PCR), arguing that the plea colloquy was deficient
under Vermont Rule of Criminal Procedure 11. The PCR court vacated the conviction,
reinstated defendant’s not-guilty plea, and returned the case to the criminal division.

        The criminal division held a hearing in February 2015. The court initially postponed the
hearing so that defendant could meet with her attorney regarding a plea offer that had been
extended by the State. When the hearing resumed, the State represented that defendant had
rejected its offer and that there was no agreement on a sentence. The State further explained that
because defendant had a year of credit, any sentence imposed would already be past the
minimum. Defendant then entered a guilty plea with an open, contested sentence. During the
plea colloquy the court explained to defendant that the open plea meant that the court would
decide the penalty and that the sentence could be up to the statutory maximum of one year.

        The State argued for a sentence of eleven-to-twelve months based on its assertions that
defendant was dangerous and a period of supervision was required to protect the public. It
pointed to her prior convictions for assault and the fact that she was under supervision for a prior
assault when she committed this assault. The State took the position that due to the time she had
already served on this charge, defendant had satisfied any minimum term the court would
impose. It argued that a longer maximum sentence would allow for a longer period of
supervision. Defendant argued for a sentence of four months to four months and a day.

        The court sentenced defendant to six-to-twelve months. The court made it clear that it
was assuming that its sentence would not significantly impact defendant’s minimum release date,
and invited defendant to seek reconsideration if this assumption proved to be incorrect. Noting
her prior history of assaults, amounting to a pattern, the court explained that a longer period of
supervision warranted.

       Defendant appeals.

        On appeal, this Court “review[s] the trial court’s sentencing decision for an abuse of
discretion.” State v. Gibney, 2003 VT 26, ¶ 53, 175 Vt. 180. Sentencing is based on “the
situation and nature of the offender as well as according to the crime charged,” and sentences
within statutory guidelines will be affirmed absent “exceptional circumstances.” State v. Cyr,
141 Vt. 355, 358 (1982).

         On appeal, defendant argues that the court abused its discretion by sentencing her to a
longer maximum sentence than her initial sentence. She contends that the sentence was
vindictive and designed to punish defendant for successful collateral attack on her conviction.
Defendant concedes that the court did not explicitly express vindictiveness, but argues that the
retaliation is implicit since the maximum sentence was double the maximum originally imposed.

        Defendant fails to demonstrate an abuse of discretion. First, a different judge presided at
the second sentencing than had at the first. Therefore, there is no presumption that the harsher
sentence pursuant to defendant’s plea agreement on remand reflects a retaliatory or vindictive
motive. See State v. Percy, 156 Vt. 468, 482 (1990) (explaining that where different judges
sentenced defendant following first and second trials there was no presumption of
vindictiveness); see also North Carolina v. Pearce, 395 U.S. 711, 723 (1969) (holding that when
a defendant receives a higher sentence after a new trial the reasons for the enhanced punishment
“must affirmatively appear” in order to assure the absence of “retaliatory motivation on the part
of the sentencing judge”); Texas v. McCullough, 475 U.S. 134, 140 (explaining that rebuttable
presumption of vindictiveness recognized in Pearce does not apply where “different sentencers
assessed the varying sentences” so that harsher sentence imposed by a judge than the sentence
imposed by a jury at a previous trial does not trigger a presumption of vindictiveness).

        Second, the record does not support defendant’s contention that the judge was motivated
by vindictiveness. When the Pearce presumption does not apply, the defendant must
affirmatively prove actual vindictiveness. Percy, 156 Vt. at 482. The second time around the
court sentenced defendant pursuant to an open plea, rather than a plea agreement with the State
that reflected an agreed-upon maximum sentence of six months. The court cited legitimate
reasons for the sentence it imposed, including defendant’s past conduct and the need to provide
supervision. See State v. Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428 (setting forth matters that can
be considered at sentencing including facts of crime as well as defendant’s past conduct). There


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is no evidence in this record that the court’s sentence following defendant’s open guilty plea
reflected unlawful vindictiveness.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice

                                             _______________________________________
                                             Harold E. Eaton, Jr., Associate Justice




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