Friday, September 5, 2014

Give Credit Where It’s Due

State v. Perry, 2014 VT 102

By Elizabeth Kruska

You know what’s confusing? Corrections math! It’s confusing because sometimes people have different sentences and they work together in different ways and sometimes they get credit toward their jail sentences and sometimes they don’t, and the trick is to know what goes where. It’s a talent to figure this stuff out, really.

Here’s the story with Mr. Roger Perry. Two separate burglaries happened; one in December 2010 and one in January 2011. For whatever reason, Roger didn’t get charged with those offenses until February 2012. He entered into a plea agreement in June 2013 and then got sentenced to the burglary charges in July. The sentence he got was 3-15 years all suspended but 6 months to serve. This means he’d have to go to jail for 6 months and then be on probation. If he violated his probation, he could have to serve the balance of the 3-15 years in jail.

Apparently while the case was pending, Roger accrued some credit toward his sentence. The opinion isn’t totally clear about this, but it looks like Roger somewhere along the way also was serving a sentence for home confinement on a completely unrelated drug charge. The in the burglary cases the court imposed the sentence and noted it was to include any credit allowed by law. The sentences imposed on the burglary charges were concurrent to one another, but that whole sentence package was meant to be consecutive to the drug charge sentence.

This is where things get complicated. The Department of Corrections did a sentence computation on the burglary case and gave Roger 228 days of credit, related to the sentence from the drug conviction. The State filed a motion to amend the sentence, saying the deal was that he was supposed to serve an additional 6 months, not that he should get all that credit from before.

The trial court had a hearing and said, “hey wait. The deal was that this fellow was supposed to serve 6 more months. The Department of Corrections can’t just change a sentence and give credit where it isn’t due.” Well, the judge didn’t say it exactly like that, but that’s kind of the spirit of the sentiment.

Roger appeals with two arguments. First, he said the court amending the mittimus to take away the credit violated the plea agreement where apparently everyone agreed. Second, there’s a recently-amended statute that gives credit in this kind of situation, and the court can’t now deprive him of that credit.

The State answered, saying the issue was moot because by the time the appeal rolled around that Roger had actually served the 6 months, and now there’s nothing to argue about.

SCOV disagrees with the State. First of all, it says the issue isn’t moot. He hadn’t served his whole sentence; he only served the portion of it that he had to do in jail. Remember a few paragraphs up when I said that if he violated his probation he could have to serve the balance of the 3-15 years in jail? That means that he’s still got a giant chunk of that sentence hanging around out there. And if, in the future he is faced with the situation where he has to serve the time in jail, you’re darn tootin’ he’s going to want to make sure he’s got all the credit he’s entitled to have.

The State says, “yeah, well, this is only a problem if he violates probation.” That’s true. But the SCOV has a preference for fixing errant sentences sooner rather than later. Why wait for a “what if?” situation when it can get itself fixed now.

SCOV also points out that the legislature had amended the statute on consecutive sentences prior to Roger’s case, so it applied to him. The law now is that if someone has an existing sentence and has served the minimum of it, and then goes into jail in relation to a new charge and gets a consecutive sentence on the new charge, then he or she is entitled to credit toward the new minimum from the time of the arraignment to the time of sentencing. This is a departure from what it used to be, which is that credit was awarded only in connection with the sentence being imposed. Let’s not get any farther into this, because it’s complicated and it’s not the rule anymore anyway. So there.

So, SCOV says that the amended mittimus denying credit where it might be due is an illegal sentence. Illegal sentences aren’t ok, so the matter gets remanded for an amendment of Roger’s mittimus to make it a lawful sentence.

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