State v. Carpenter, 2013 VT 28
This is a sentencing case, which the majority disposes of in ten paragraphs. Put on your hardhats and let’s get to work.
Defendant was charged with three felonies (assault and two violations-of-abuse-prevention-orders) and six misdemeanors (resisting arrest, unlawful mischief, etc.). He agreed to a plea bargain where he would plead guilty to one felony and five misdemeanors. In return, the State would be able to ask for enhanced sentencing under the Habitual Offender Act. Both parties agreed to let the court determine the sentence.
The Habitual Offender Act states that after three felony convictions, the courts can raise the sentence imposed for any future felonies anywhere from a few years above the statutory allowance to life. In this case, the maximum sentence for the felony was three years and the maximum for the five various misdemeanors were two years, one year, one year, six months, and six months.
In this case, the State asked the court to impose a total prison term of ten to twelve years. Defendant did not object to State’s proposal as extending beyond the powers of the Habitual Offender Act, but he did ask for a lighter sentence of twenty-three months to seven and a half years. The trial court sentenced Defendant five to fourteen years for the felony with the remaining, lesser, misdemeanor convictions to be served concurrently.
On appeal, Defendant argues that the sentence imposed was improper because its minimum term (five years) is greater than the maximum he would have had to serve on the underlying felony. Defendant argued that the enhanced minimum sentence improperly held him for longer than the underlying convictions would have at their maximum (three years).
Since Defendant did not make this objection at his sentencing or when the State made its sentencing proposal, the SCOV reviews this challenge under the standard of Plain Error. As you may remember, this is a nearly impossible review standard where a Defendant must show that the alleged error actually occurred, that it was an obvious error that it affected substantial rights, and that its existence seriously affects the fairness, integrity, or public reputation of judicial proceedings.
As you might guess, Defendant is unable to prove these elements. In fact, the SCOV does not really get past the question of error. Since the minimum sentence (five years) is actually within the range that Defendant requested at sentencing, the SCOV concludes that there was no error in applying the five year sentence.
The SCOV adds that it certainly creates no prejudice to Defendant, who asked for such a range. But even more so, it also does not violate the maximum number of years Defendant might have been sentenced to serve. If the trial court had not allowed the felony and misdemeanor sentences to be served concurrently, Defendant would have been sentenced to eight years (3+2+1+1+.5+.5)—three years more than his minimum.
The SCOV majority continues a little further to note that Defendant’s argument that the enhanced sentencing statute does not allow a minimum sentence to exceed the maximum sentencing of the underlying convictions is not supported by the plain language. The enhanced sentencing structure replaces the sentencing structure of the underlying felony. So it controls and should not need to refer back to the underlying conviction.
Still, the SCOV, particularly Justice Robinson in a concurrence, are clear that it is leaving the door open on this last issue. Both the majority and the concurrence are careful to save the issue for another day, but each offers a bellweather summary. The majority suggests that the statute does not seem to limit minimum sentencing, and the concurrence strongly suggests that it or some principle does if a minimum sentence under the Habitual Offender Act substantially exceeds the maximum sentencing allowance on the underlying crimes.
Given the limited analysis, no one is prepared to stake out an extensive position, and the SCOV leaves the analysis relatively short. In the end, Defendant’s five-year minimum sentence is deemed neither error nor prejudicial, and it is affirmed for lacking any plain error.
With that ends Defendant’s slender hope at a chance to revisit his sentencing. With this loss, however, he has a good start on his petition for Post-Conviction Relief.
We will keep an eye out for it.