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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-199

                                        MARCH TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Edwin Herbert Martin                                  }    DOCKET NO. 1279-10-09 Wmcr

                                                            Trial Judge: David T. Suntag

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

        Defendant pled guilty to driving under the influence, third or subsequent offense, with a
habitual offender enhancement. The trial court sentenced him to a minimum sentence of five
years and a maximum of life. Defendant appeals the sentence, arguing that the court abused its
discretion because he will be unable to receive substance abuse or other programming during the
incarcerative portion of his sentence. We affirm.

        Defendant was charged with DUI, third or subsequent offense, in October 2009.
Defendant had eight prior convictions for DUI, six of which were felony convictions. Defendant
committed his ninth DUI—the charge giving rise to the sentence defendant now appeals—while
on furlough for other offenses, including prior DUI convictions. Including his prior DUI
convictions, defendant had eleven prior felony convictions and twenty-two prior misdemeanor
convictions. Pursuant to a plea agreement, which the trial court accepted, defendant pled guilty
to DUI, third offense or subsequent, with a habitual offender sentence. As part of the agreement,
the State was capped at requesting a sentence of ten years to life.

         At the sentencing hearing, the State asked the court to impose a sentence of ten years to
life, arguing that such a long minimum term was necessary to protect public safety. Defense
counsel argued in favor of a sentence of two to fifteen years, and emphasized that defendant was
suffering from advanced lung cancer.

        The court determined that a sentence of five years to life was appropriate. The court
observed that it had never seen another defendant who had more DUI convictions than this
particular defendant. While it recognized that alcoholism was a disease, the court noted that
defendant repeatedly failed to avoid situations in which his judgment would be compromised and
he would drive drunk. Over the course of defendant’s thirty year criminal record, the court
explained, the Department of Corrections had provided defendant with every conceivable
program available. He had participated in furlough programs, where he was placed in a support
community or sober home, and at least three intensive substance abuse (ISAP) programs.
Defendant had also participated in a substance abuse program while incarcerated, and he had
received community-based treatment as well. In the end, none of these programs stopped
defendant from repeatedly driving while intoxicated.

        The court indicated that its primary concern was to protect the public and prevent
defendant from killing someone while driving drunk. Defendant had shown that he was
incapable of controlling his own behavior, and the court found incarceration necessary. In
reaching its decision, the court recognized that the Department of Corrections would not likely
be able to provide defendant substance abuse treatment during his incarceration. Nonetheless,
the court found that its obligation to protect the public was paramount, and, given defendant’s
track record, lifetime supervision was warranted. As to the minimum sentence, the court
reasoned that it did not want the minimum to be too short because it feared that defendant would
get out, drink and drive again, and hurt somebody. The court ultimately imposed a five year
minimum sentence in this case, noting that the minimum represented a step up from defendant’s
prior DUI sentences. Defendant appealed from this decision.

        On appeal, defendant argues that the court abused its discretion by sentencing him to a
five year minimum. Even with credit for time served and the possibility of furlough, the
sentence guaranteed some years of incarceration during which time defendant would not be able
to go through substance abuse counseling. We review a trial court’s sentencing decision with
considerable deference to the trial court’s substantial discretion in this realm. See e.g., State v.
Corliss, 168 Vt. 333, 341 (1998) (“Trial courts have wide discretion in imposing penalties, and
we will not reverse unless the court strays from statutory limits or abuses its discretion.”); see
also State v. Cyr, 141 Vt. 355, 358 (1982) (“In sentencing we defer to the lower court and will
not review sentences within the statutory limits absent exceptional circumstances.”).

       As reflected above, the trial court was aware of the fact that defendant would not have
access to substance abuse treatment while incarcerated; the court determined that the protection
of the public overrode that concern and that, given defendant’s record, incarceration was
necessary to protect the public. The trial court carefully considered the evidence before it and
properly exercised its discretion. We find no abuse of discretion.

       Affirmed.


                                                 BY THE COURT:

                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




                                             2
