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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-312

                                         APRIL TERM, 2016

 In re Douglas Walker                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Rutland Unit,
                                                       }    Civil Division
                                                       }
                                                       }
                                                       }    DOCKET NO. 233-4-14 Rdcv

                                                            Trial Judge: Cortland Corsones

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

          Petitioner appeals from the dismissal of his petition for post-conviction relief (PCR). We
affirm.

       The facts are not in dispute. On January 16, 1997, petitioner entered into a plea
agreement and was convicted and sentenced to thirty months to fifteen years for first-degree
aggravated domestic assault and one-to-three years for felony violation of an abuse-prevention
order. On that same date, pursuant to a plea agreement, petitioner was convicted of an additional
felony violation of an abuse prevention order and sentenced to one-to-three years concurrent
with the other sentences.

       On January 28, 1999, petitioner, pursuant to a plea agreement, was convicted of escape
and sentenced to zero-to-three years consecutive to his preexisting sentence. On March 16,
1999, pursuant to a plea agreement, petitioner was again convicted of escape and sentenced to
one-to-five years consecutive to his preexisting sentence. On that same date, pursuant to a plea
agreement, petitioner was convicted of grand larceny and sentenced to one-to-five years
concurrent with the other sentence imposed that day and consecutive to the preexisting sentence.

       On March 31, 2004, pursuant to a plea agreement, petitioner was convicted of felony
possession of heroin and sentenced to fifteen months to five years consecutive to his preexisting
sentence.

       On October 1, 2008, pursuant to a plea agreement, petitioner was convicted of felony
aggravated domestic assault and sentenced to fourteen-to-forty-eight months consecutive to his
preexisting sentence.
       On March 16, 2011, pursuant to a plea agreement, petitioner was convicted of felony
escape and sentenced to nine-to-twenty-eight months consecutive to his preexisting sentence.
On that same date, pursuant to a plea agreement, petitioner was convicted of unlawful mischief
and sentenced to three-to-six months concurrent with the other sentence imposed that day and
consecutive to his preexisting sentence.

         On April 9, 2014, petitioner filed a pro se PCR petition, arguing that in the cases in which
sentences were imposed consecutive to preexisting sentences, the trial court failed to abide by
mandates set forth in 13 V.S.A. §§ 7030(a) and 7032(a)-(b). Petitioner was later assigned
counsel, but no amended petition was filed. In response to the parties’ opposing motions to
dismiss, the civil division of the superior court ruled in favor of the State, granting its motion to
dismiss. The court ruled that § 7030(a) is not applicable to this case and that, to the extent that it
is, petitioner waived his right to challenge the sentences under that provision by entering into
plea agreements in which he agreed to the sentences that were ultimately imposed. The court
further ruled that the trial courts in the above cases abided by § 7032(a)-(b). On appeal,
petitioner raises the same arguments that he raised before the superior court.

        Section 7030(a) provides that in determining whether to impose a deferred sentence, a
supervised community sentence, a sentence of imprisonment, probation, or referral to a
community reparative board, the trial court shall consider certain factors: “the nature and
circumstances of the crime, the history and character of the defendant, the need for treatment,
and the risk to self, others, and the community at large presented by the defendant.” We agree
with the superior court that § 7030(a) is not applicable in the present situation, where defendant
entered into plea agreements and the court imposed the sentences to which defendant agreed.
Because defendant agreed to particular sentences of incarceration, there was no need for the
court to consider the factors enumerated in § 7030(a). “[O]ur decisions authorize a defendant to
waive virtually any right, constitutional or statutory, as long as the waiver is knowing, intelligent,
and voluntary.” State v. Hance, 157 Vt. 222, 224 (1991). As the superior court noted, petitioner
does not argue that he did not enter into the plea agreements knowingly, intelligently, and
voluntarily. Furthermore, transcripts of the change-of-plea hearings confirm that petitioner
entered into those agreements knowingly, intelligently, and voluntarily. Hence, there is no
reason to invalidate the sentences imposed pursuant to the plea agreements. Cf. State v. Lucas,
2015 VT 92, ¶ 14 (holding that by entering into plea agreement and failing to appeal ensuing
sentence defendant waived opportunity to obtain and challenge factual findings in support of
broad probation condition).

        Section 7032(a) provides that when a person sentenced to a term of imprisonment is
convicted of another offense before being discharged from the former sentence, “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.” Furthermore, § 7032(b) provides, in part, that when multiple sentences are imposed
“in addition to a prior sentence or sentences from which the person has not yet been discharged,
they shall run concurrently with or consecutive to any prior sentence or sentences as the Court
shall determine at the time of sentencing.” In this case, petitioner agreed to the imposition of


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particular sentences, including whether they were to run concurrently or consecutively to prior
sentences, and the court accepted the plea agreements after assuring that petitioner had entered
into them knowingly, intelligently, and voluntarily. There is no violation of the statute.

       Petitioner also challenges his sentences on a contract theory, however the analysis on
which he relies is inapplicable to his case.

       Affirmed.

                                              BY THE COURT:


                                              _______________________________________
                                              John A. Dooley, Associate Justice

                                              _______________________________________
                                              Marilyn S. Skoglund, Associate Justice

                                              _______________________________________
                                              Harold E. Eaton, Jr., Associate Justice




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