CHAPTER 37

SENTENCING

§ 37.01 In General

§ 37.02 Sentencing Procedures Under Rule 32 - The Right

to Sentencing Without Unreasonable Delay

§ 37.03 - The Right to a PSI

§ 37.04 The Presentence Investigation

§ 37.05 - The Statutory Process

§ 37.06 - Defense Input Into the PSI

§ 37.07 - The "Defense PSI"

§ 37.08 Other Sentencing Information

§ 37.09 Challenging Sentencing Information - The Requirements

of Reliability and Relevancy

§ 37.10 - Right to Disclosure of Sentencing Information

§ 37.11 - Challenging Allegations

§ 37.12 Proof of Other Criminal Conduct - Crimes Not

Established by Prior Conviction

§ 37.13 - Proof of Prior Convictions

§ 37.14 Allocution

§ 37.15 The Judge's Sentencing Options

§ 37.16 State Sentences and Federal Sentencing Guidelines

§ 37.17 Prison Sentences - Minimums and Maximums

§ 37.18 - Sentence Computations

§ 37.19 - Places and Conditions of Incarceration

§ 37.20 Fines and Restitution

§ 37.21 Sentence Reconsideration

§ 37.22 - Correcting an Illegal or Illegally Imposed Sentence

§ 37.23 - Discretionary Sentence Reductions

§ 37.24 - Sentence Reconsideration on the Prosecutor's Motion

§ 37.01

In General

The majority of criminal cases end with some kind of a sentence,{1} and many defense lawyers see preparation for this probable eventuality - sentencing advocacy - as the most important function they perform.

From the judge's standpoint sentencing is a preeminently discretionary function: beyond the statutory minimums and maximums, which usually allow for a very broad range of punishments, there are few legal restraints on the sentence a judge can impose. Vermont has not adopted sentencing guidelines; informal, nonbinding guidelines prepared by the court administrator's office were in circulation in the early 1980s, but the practice has been discontinued.

The constitutional constraints are almost negligible. The eighth amendment ban on cruel and unusual punishment has been held to bar life sentences for relatively minor offenses,{2} but even that limitation is no longer enforced.{3} Chapter II, § 39 of the Vermont Constitution provides that "all fines shall be proportioned to the offenses[,]" and the word "fines" includes all forms of punishment, including prison sentences,{4} but the Vermont Supreme Court has not begun to decide the extent to which the clause limits a judge's sentencing discretion. The Vermont court has never held that a sentence was either an abuse of discretion or unconstitutionally long.

Sentencing procedures (the types of information which a judge can consider, proof requirements, etc.) are also lax compared to the safeguards which are deemed essential at other stages of the process. Although V.R.Cr.P. 32 and case law impose a general requirement that sentencing information be reliable,{5} the normal rules of evidence do not apply at sentencing proceedings,{6} nor do at least some constitutional restrictions on evidence.{7}

The defendant has an undoubted right to present favorable sentencing information, including hearsay and including his own testimony,{8} and to insist that all sentencing information be basically reliable.{9}

§ 37.02

Sentencing Procedures Under Rule 32 -

The Right to Sentencing Without Unreasonable Delay

The defendant is entitled to be sentenced "without unreasonable delay."{10} In a case where sentencing was delayed for over three years due to trial court error and a state's appeal, the Vermont Supreme Court held that imposition of sentence would violate this provision.{11} Sentencing is part of the "trial" for speedy trial purposes, and unreasonable delays in sentencing therefore violate the sixth amendment speedy trial guarantee, as well as the rule.{12}

§ 37.03

- The Right to a PSI

Sentencing in misdemeanor cases, and pursuant to plea bargain, can and often does proceed immediately after the adjudication of guilt (the verdict in the case of a trial, or the acceptance of a plea). In general, however, felony defendants have the right to insist on a presentence investigation report (PSI),{13} which the court normally orders at the time of verdict or plea. When a PSI is ordered the judge can adjust bail conditions (and perhaps revoke them altogether) or keep them as they were before adjudication.{14}

§ 37.04

The Presentence Investigation

The PSI often has a major impact on the judge's sentencing decision, in part because it shapes the judge's view of the case coming into the sentencing hearing, before defense counsel can have any input. If the defendant is sentenced to prison the PSI will accompany him there, and play a role in important classification and parole decisions. Shaping the PSI is therefore a critically important objective for defense counsel.

§ 37.05

- The Statutory Process

The PSI is prepared by a probation officer, a department of corrections employee.{15} It includes the defendant's criminal record; the circumstances of the offense; information about the defendant's character, financial condition, and relevant circumstances; and the comments or a written statement by the victim or victim's representative (at their option).{16} In sex offense cases the PSI must also "address the issue of the availability of appropriate treatment programs" including a statement of relevant department of corrections parole policies.{17} The report concludes with a recommended sentence.{18}

The report must be disclosed to counsel and to the defendant personally at least fourteen days before sentencing,{19} and before imposing sentence the court must determine that the defense lawyer and the defendant have had a chance to read and discuss it.{20}

The report may not be disclosed to people outside the department of corrections, other than the judge, the parole board, the defendant, and counsel for both sides.{21} When the defendant is sentenced to prison the PSI is on file at the prison and generally accessible; it constitutes a major influence on the defendant's programming and his conditions of confinement.

The process by which the defense can challenge the contents of the PSI and other sentencing information is discussed below.{22}

§ 37.06

- Defense Input Into the PSI

Defense counsel should never assume that the PSI is either accurate or balanced. Counsel should go over the same ground, verifying the defendant's criminal record, and obtaining as much information as possible on the defendant's family, background, education, employment history, military service, church affiliations, hobbies, and so on. Favorable witnesses should be contacted, advised about the purpose and importance of the PSI, and prepared as if they were trial witnesses.

Once a probation officer has been assigned to write the PSI, defense counsel should get in contact with suggestions of people to interview and other sources of information.

Interviews With the Defendant

Counsel also has an important role to play in the probation officer's interview of the defendant. Whether or not the PSI interview is a "critical stage" of the proceeding at which the defendant has a sixth amendment right to the counsel's presence, the defendant has a Miranda-like fifth amendment right to counsel, in the interval between plea or verdict and sentence, to prevent possible enhancement of sentence. In State v. Cox,{23} a probation officer visited the defendant in prison where he was detained pending sentence, and asked to interview him for the PSI. When the defendant asked to speak with an investigator from the public defender's office before answering questions, the probation officer indicated that if the defendant insisted on that protection she would abandon the interview altogether, whereupon the defendant made statements which were later used to increase his sentence. The Vermont Supreme Court held that "the condition under which defendant continued with the PSI interview [was] coercive, thereby rendering defendant's statements involuntary, in violation of his rights under the Fifth Amendment."{24}

In some types of cases the judge or the probation officer will want to have the defendant interviewed by medical professionals (in sex offense prosecutions, for example, psychosexual evaluations have become routine). Because the defendant's responses can have the effect of increasing punishment, these interviews are critical stages of the proceeding, and the defendant must be given Miranda warnings,{25} although the sixth amendment may not guarantee a right to have counsel present during the interview.{26}

Even with the safeguard of counsel, however, what the defendant should tell the probation officer (or other interviewer) about the crime he has just been tried for and found guilty of, can present a classic self-incrimination dilemma. On the one hand, judges always want to see some sign that the defendant (who has claimed innocence up to this point) is sincerely remorseful and has taken responsibility for his crime, and they will extend more lenient treatment to those who do.{27} On the other hand, as discussed in other sections,{28} the defendant's voluntary acknowledgment of guilt can be used against him if the conviction is reversed on appeal, and may raise perjury problems if he previously denied guilt under oath. The solution in such cases may be a court-ordered grant of use immunity for admissions made in connection with the PSI.{29}

§ 37.07

- The "Defense PSI"

Defense counsel can submit a sentencing memorandum covering the same ground as a PSI, which may serve as a sort of shadow PSI, and which can incorporate a defense sentencing recommendation. If the proposed defense sentence includes a treatment or therapy program, the sentencing memorandum should describe it and include diagnostic information. Letters attesting to the defendant's character and self-help efforts, the defendant's participation in or commitment to treatment programs, offered employment, and so on, can be attached.

While PSIs are confidential by statute{30} sensitive information prepared at the defendant's initiative is presumptively open.{31}

§ 37.08

Other Sentencing Information

Neither side is restricted to the PSI, and because sentencing information only has to be reliable, additional facts can come from a wide array of sources, from in-court sworn testimony to letters and other normally inadmissible hearsay.

The victim of a felony, or next of kin, has a statutory right to testify at sentencing "relative to the crime, the defendant and the need for restitution[,]" but the testimony must be sworn and subject to cross-examination.{32} Either side can call other witnesses as well.

§ 37.09

Challenging Sentencing Information -

The Requirements of Reliability and Relevancy

Sentencing information must be relevant and "reliable," within broad boundaries. Relevancy is very wide-ranging in this context, because sentencing is supposed to be governed by "individualized" considerations, based on information from a wide variety of sources.{33} In part because of this much relaxed relevancy requirement, the normal reliability requirements are also opened up.{34} Reliability includes reliable hearsay,{35} and many sentencings are mostly or entirely based on hearsay. The constitution only prohibits sentencing on "materially untrue information."{36} Rumors{37} and lynch-mob tactics{38} are out of bounds, but a crime victim's emotional account "of the feelings which the defendant's acts . . . engendered in her" is permissible.{39}

§ 37.10

- Right to Disclosure of Sentencing Information

All sentencing information has to be disclosed to the defense enough before sentencing to allow an opportunity for the other side to challenge it; and the PSI has to be made available to both sides fourteen days before sentencing.{40} The court's failure to disclose sentencing information may be harmless if the information was provided to the parties in another form,{41} or if they had access to it.{42}

Because the defendant has the right to address the sentencing court personally,{43} relevant sentencing information must be disclosed to the defendant personally; a failure to do so abridges the defendant's right to respond to the sentencing information before the court.{44}

§ 37.11

- Challenging Allegations

1988 amendments to Rule 32 regularized the process by which the defense and prosecution can challenge information submitted to the court at sentencing. All information should be provided sufficiently before sentencing to allow a chance to investigate and challenge it.{45} Objections to anything in the PSI must be filed in writing at least three days before sentencing, and the parties can present evidence, including hearsay, on the subject of any disputed allegation. If the defense objects to any information, "the court shall not consider such information unless, after a hearing, the court makes a specific finding as to each fact objected to that the fact has been shown to be reliable by a preponderance of the evidence, including reliable hearsay."{46} Otherwise, the judge must either specifically find that the allegation is not reliable, or undertake that it will play no role in the sentencing decision.{47} In a provision designed to prevent prison officials from relying on untrustworthy allegations, all findings on disputed points must be reduced to writing and attached to "any copy of the presentence investigation report or other controverted document thereafter made available by the court to the Department of Corrections."{48}

§ 37.12

Proof of Other Criminal Conduct - Crimes Not Established by Prior Conviction

The most damaging sentencing material, and the most hotly contested, is evidence of the defendant's prior crimes and convictions. In 1979 in State v. Williams{49} the Vermont Supreme Court limited other-crimes evidence at sentencing to convictions, barring all claims of "criminal acts never validated by judgment of conviction." The rule was much criticized by prosecutors and short lived: five years later, in State v. Ramsay,{50} the court held that criminal conduct, whether or not "validated by judgment of conviction," could be considered at sentencing so long as the state's showing met general reliability requirements, overruling Williams sub silentio and aligning Vermont with the majority of other jurisdictions.

Allowing sentencing use of unconvicted conduct leads to some anomalies. Aggravating facts, such as a defendant's use of force in a sexual assault prosecution, which the state would have to prove beyond a reasonable doubt and by the normal rules of evidence if it had alleged them as an element of the crime, may be omitted from the formal charge and established by the much easier standards of Rule 32(c) as sentencing factors.{51}

Arrest records "are not considered a reliable basis for individual sentencing" in part because arrests do not always result in convictions and arrest data is unreliable,{52} and this information should not be included in the "prior criminal record" portion of the PSI.{53} Charges of which the defendant was acquitted are also probably not a lawful basis for increasing sentence.

Immunity

Because the defendant has a right, and often a need, to testify at sentencing, use of untried criminal allegations can present an acute self-incrimination dilemma. The defendant may either remain silent, surrendering the right to testify and leaving the allegations unchallenged, or "testify or speak, thereby running the grave risk of self-incrimination as to the alleged prior crimes."{54} Recognizing the problem, the Vermont Supreme Court held in State v. Drake that the sentencing judge must offer the defendant use and derivative use immunity: "The testimony of a criminal defendant at a sentencing hearing and his statements by way of allocution, as well as any evidence derived from such testimony or statements, are inadmissible against the defendant during any subsequent criminal proceedings which charge the alleged prior criminal activity as to which the State offered evidence at the sentencing hearing," except for impeachment purposes.{55}

Use of untried allegations at sentencing, however, does not raise a double jeopardy bar to a later trial of the same allegations, because "the defendant is not actually being punished for the [untried] crimes so considered."{56}

§ 37.13

- Proof of Prior Convictions

Except for special recidivist prosecutions in which prior offenses justify statutory sentence enhancements, past convictions are treated like other sentencing data - questions for the judge, under the relaxed standards of Rule 32(c).{57}

a. Statutory Enhancements

A number of criminal statutes specifically prescribe enhanced penalties for repeat offenders. The punishments for drunk driving,{58} and for driving with a suspended license,{59} escalate rapidly for second, third, and subsequent offenses; 13 V.S.A. 1028(a) increases the punishment for assaulting a police officer from one year for a first offense to ten years for a subsequent offense; 13 V.S.A. § 11, the habitual offender statute, allows life sentences for felons who have been convicted of three previous felonies.

These enhancement provisions must be pleaded and proved as if they were elements of liability. Before the defendant can be subjected to enhanced punishment as a repeat offender for driving with a suspended license the prior conviction and the circumstances justifying mandatory minimum sentencing must be specifically alleged in the information.{60} And the truth of the allegation in these enhancement cases is a question for the jury, not the judge.{61}

It should be noted that even when the state fails to allege and prove a prior conviction (or cannot use it because of a constitutional defect), it may still be able put on reliable evidence establishing the prior crime, as it could if there had been no prior conviction at all.{62} Such evidence can justify a longer sentence, although not a sentence above the statutory maximum for first offenders.

b. Challenging prior convictions

The state cannot increase a sentence on the strength of invalid prior convictions.

Uncounseled felony and misdemeanor convictions may not be considered in imposing or increasing a prison sentence, and the claim of unconstitutionality can be raised at sentencing.{63} For defects other than denials of counsel, however, the challenge to the prior conviction may have to be brought by a separate proceeding, for example, a petition for postconviction relief in the superior court.{64} In State v. Whitney the Vermont court indicated that a sentencing judge may not have to disregard prior plea convictions claimed to violate Rule 11, when the defendant had counsel and the conviction was not appealed.{65}

The defense has an initial burden to show the unconstitutionality of prior convictions.{66} Court docket entries and form requests for assigned counsel may establish a denial of counsel, but it will usually be necessary to order a transcript of the plea and sentence proceedings. Because transcripts take time to prepare they should be ordered well before the sentencing.

§ 37.14

Allocution

Before imposing the sentence the judge must "address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information relevant to sentencing."{67} This right of allocution, which has deep common law roots, is justified by the insight that "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself."{68} It is not a constitutional right, however, and is therefore subject to legislative restriction.{69} The Vermont Supreme Court has held that a defendant in probation revocation proceedings has no right of allocution when the court imposes sentence for a violation of probation.{70}

The right to a "meaningful" allocution is violated even if the defendant is allowed to address the court, when relevant sentencing information before the court has not been disclosed to him.{71}

§ 37.15

The Judge's Sentencing Options

Crimes are usually punishable by fine and an indeterminate period imprisonment. Crimes with a maximum of more than two years are classified as felonies; all others are misdemeanors,{72} except that some minor traffic offenses which are not punishable by any imprisonment are classified as "civil" violations, that is, not "crimes."{73}

Authorized sentences for most Vermont crimes are listed in an appendix.{74}

In most cases courts have the power to suspend all or part of a prison sentence and place the defendant on probation. This third sentencing option is discussed in another chapter.{75}

§ 37.16

State Sentences and Federal Sentencing Guidelines

Mercifully (from the defense lawyer's standpoint) Vermont has not promulgated sentencing guidelines. A defendant's liability under the federal guidelines,{76} however, depends on a combination of the federal "offense level" and the sum of the defendant's "criminal history" points; the point where these two coordinates intersects indicates a narrow guidelines range of punishments.{77} History points are calculated, in part, on the number and length of previous prison sentences, including those imposed by state courts, and defense lawyers in state courts can not afford to be ignorant of these consequences.{78}

The guidelines call for three criminal history points for each sentence exceeding thirteen months, two points for each sentence of at least sixty days, and one point for all other sentences.{79} Keeping a sentence under the 60 day and 13 month thresholds can bring important benefits.

Exposure can also be affected by the type of the state sentence. A "time served" sentence in state court may be advantageous as a matter of state liability, but will count heavily against the defendant in federal court if the time served is more than sixty days. Because the guidelines do not assess extra points for suspended sentences, a one-to-four-year sentence, all suspended but one year, will count for one criminal history point, while a one-to-four-year sentence to serve will count for three. For the same reasons, a plea bargain which results in dismissal of charge A and a sentence on charge B may be significantly better for the defendant than a bargain calling for concurrent sentences on both charges, even though the time served in state custody will be no different.

§ 37.17

Prison Sentences - Minimums and Maximums

In imposing a prison sentence, other than a life sentence, the court "shall not fix the term of imprisonment, unless such term is definitely fixed by statute, but shall establish a maximum and may establish a minimum term for which [the defendant] may be held in imprisonment."{80} Once the defendant has served the minimum term (with credit for presentence detention{81} and good time deductions),{82} he is eligible to be released on parole.{83}

Making the minimum the same as the maximum (and thereby converting an indeterminate sentence into a determinate one) violates this provision,{84} but setting the minimum close to the maximum does not.{85}

By statute a zero minimum makes the defendant eligible for parole only after six months.{86} Defense counsel seeking to assure an early parole eligibility date for his or her client should therefore advocate a low but not a zero minimum.

When the judge imposes no minimum sentence (and the statute requires none) the minimum is zero.

a. Mandatory Minimums

Most statutes have no mandatory minimum terms, but there are a few exceptions. First- and second-degree murder carry presumptive minimum sentences of thirty-five and twenty years, respectively;{87} simple assault on a police officer carries a mandatory minimum of thirty days for a first offense and two years for a subsequent one;{88} recidivist penalties for drunk driving and driving with a suspended license also carry short mandatory minimums.{89}

In State v. Saari{90} the Vermont Supreme Court rejected a broad-based constitutional challenge to mandatory minimum sentencings, holding that they do not per se violate the ban on disproportionate sentences,{91} or offend separation of powers principles by limiting the judge's sentence discretion.{92}

b. "Split" Sentences

The judge can suspend all or part of a prison sentence and place the defendant on probation. For example, someone convicted of grand larceny (maximum sentence ten years){93} could be sentenced to two to five years, all suspended but two. He would have to serve the two year minimum sentence (as he would if the sentence had not been partly suspended), but at the end of two years he would be assured of release on probation; release would not depend on a favorable decision by the parole board.

If he then violated probation he could be made to serve the balance of the two- to five-year term. Because he would get credit for the two years already served, his minimum sentence would be fully discharged and he would be technically eligible for parole.

c. Multiple Sentences

A defendant who is convicted of more than one crime will receive a separate sentence for each, which may "run concurrent with or consecutive to each other as the court determines at the time of sentencing."{94}

When the terms run concurrently, the sentences "merge" and the defendant must serve the longest minimum, and can be held until the longest maximum.{95} Two concurrent sentences of one to four years and two to three years results in an effective sentence of two to four years: the defendant will be parole-eligible after two, and will "max out" at four.

When the sentences run consecutively, the minimums and maximums are aggregated: "the minimum terms are added to arrive at an aggregate minimum to be served equal to the sum of all minimum terms and the maximum terms are added to arrive at an aggregate maximum equal to the sum of all maximum terms."{96} Consecutive sentences of one to four years and two to three years result in an effective sentence of three to seven years: the defendant will be parole-eligible after three and will "max out" after seven.

When one of the consecutive sentences is partly suspended (a "split sentence"), the sentences are added together without regard to the partial suspension, and the suspension is then applied to the aggregate.{97} Consecutive sentences of zero to three years, and "1-8 years, all suspended but one," aggregate to a term of one to eleven years, with seven years suspended (or an effective sentence of one to four years).{98}

§ 37.18

- Sentence Computations

a. Presentence Credits

The defendant is entitled to credit "toward service of his sentence for any days spent in custody in connection with the offense for which sentence was imposed."{99} The award of presentence credit is discussed in the chapter on bail.{100}

The statutory credit is automatic, but if the calculation is left to the department of corrections the defendant may not get all he or she is entitled to. Counsel should make the calculation before sentencing and ask the judge to award a specific number of days as presentence credit.

b. Good Time Credits

Each sentenced inmate is entitled by statute to "a reduction of ten days in the term of his confinement for each month during which he has faithfully observed all the rules. . . ."{101} This credit applies both to the minimum sentence (moving up the parole eligibility date) and the maximum (moving up the maximum release date). The ten-day credit is awarded only after each thirty days successfully served, with the peculiar (but not unconstitutional) result that a prisoner who has been sentenced to forty days will serve only thirty days, while one who has been sentenced to thirty days will also serve thirty days.{102}

The purpose of the good time scheme is to promote internal prison discipline by rewarding good conduct with an earlier exit date.{103} The prison can deny good time credit or revoke earned credits only after a hearing comporting with minimum due process.{104}

c. Calculating Release Dates

Figuring out a defendant's parole eligibility and maximum release dates, with reductions for presentence and good time credits, can be a daunting task, especially in multiple sentence cases. The department of corrections will supply a sentence computation on request, but the process is not as difficult as it seems and the defense lawyer can and should double check the department's calculation.

Step 1: Convert the sentence into a number of days. The department of corrections figures thirty days for each month, and 365 days for each year (disregarding leap years).{105} A sentence of one year six months equates to 545 days.

Step 2: Make the good time deduction as follows:

Divide the total by 40. In our hypothetical the result is 13, with a remainder of 25.

Put the remainder to one side and multiply the 13 by 30. The result is 390.

If the remainder is not greater than 30, add it to the total. If the remainder is greater than 30, add only 30. The result in our case is 415, which is the length of the sentence as reduced by good time, in days.

Step 3: Make the jail time credit deduction by subtracting the days spent in presentence custody.

Step 4: If one year six months was the defendant's maximum sentence, and he is entitled to 0 days of presentence credit, his maximum release date, with good time, will be 415 days from the date of his sentence. For this final calculation the department of corrections uses a table, which it calls a Julian calendar, assigning a consecutive number for each day. Copies are available from the department of corrections.

A computer program called "Timecomp," which will accomplish all these calculations, is available from the defender general's office in Montpelier.

§ 37.19

- Places and Conditions of Incarceration

The conditions of a prisoner's confinement can be as important as the duration of confinement, but the subject is beyond the scope of this book.{106}

a. Vermont Prisons and Lockups

Vermont has six small prisons: four "community correctional facilities" - the Chittenden Community Correctional Facility, in South Burlington, and the Rutland, St. Johnsbury, and Woodstock Community Correctional Facilities - and two "medium central facilities," the Windsor Correctional Facility in Windsor and the Northwest State Correctional Facility in St. Albans. To a degree these facilities have specialized functions: the Northwest State Correctional Center is a medium security prison with a "close security" wing, and it is also the location of the state's only intensive sexual offender program; the Chittenden facility has the only unit for women inmates; the Windsor facility is a medium security prison which houses long-term inmates who are nearing their release dates. Pretrial detainees are usually held in the community correctional facility nearest the place of trial, but there are also two small local lockups, in Middlebury and Newport, for detainees as well as misdemeanor inmates serving short sentences.

b. Out-of-State Transfers

The department can transfer sentenced inmates to the federal prison system and, pursuant to interstate compacts, to sister state prisons.{107} There are no maximum security prisons in Vermont and inmates classified for maximum security are usually transferred to out-of-state facilities.

Although state law authorizes transfer to federal prison only when "all in-state treatment and rehabilitative programs available for the inmate have been considered and found unsuitable[,]"{108} in practice the department usually transfers "trouble makers" serving long terms whom it does not want to deal with. The practice has survived procedural and substantive challenges.{109} State-to-state transfers do not require any finding that in-state programming is unsuitable.

Whenever the department proposes to transfer an inmate to an out-of-state system or facility the inmate is entitled to contest the move in an administrative hearing, pursuant to departmental regulations.

c. Classification

Where a sentenced inmate will be incarcerated and what programming the inmate will receive depends on his or her classification. The department of corrections classification scheme, basically a point system, has five security levels - maximum, close, medium, minimum, and community. Department of corrections regulations describe the point system for determining an inmate's initial classification level, the custody and programming consequences of each level, and the process by which his custody level can be progressively downgraded as he approaches parole eligibility.

A classification decision can make the defendant eligible to serve all or part of his sentence on "house arrest." The department of corrections has broad furlough authority to "extend the limits of the place of confinement of an inmate at any correctional facility"{109.5} and defendants convicted of certain minor offenses and sentenced to short terms may serve their sentences outside the prison, supervised by a "field supervision unit" of the probation department.

d. Alternative Sentences

While classification decisions are the sole province of the corrections department, the sentencing judge can also order that all or part of the sentence be served as a "supervised community sentence," defined as "a form of imprisonment to be served outside the walls of a correctional facility, subject to the rules of the commissioner [of corrections] and subject to revocation and incarceration. . . ."{110} Such sentences, which may involve house arrest or residence at halfway houses, work programs, or residential treatment centers,{111} must first be approved by the department of corrections, the specifics being included as part of the PSI.{112}

The parole board supervises the terms of the sentence and the defendant's conduct,{113} and the defendant can be incarcerated by procedures akin to parole revocation.{114}

The defendant receives day-for-day credit with no good time reductions.{115} Like a prison inmate the defendant becomes eligible for parole after serving his or her minimum,{116} but the parole board can also forgo parole and "terminate the offender from supervision altogether."{117}

§ 37.20

Fines and Restitution

The court's power to fine is limited by the defendant's ability to pay. Imprisonment for inability to pay a fine violates the federal equal protection guarantee,{118} and presumably also the state constitutional ban on imprisonment for debt.{119} The same limitation applies to restitution orders,{120} which are discussed in another section.{121}

When the defendant cannot come up with the full amount of the fine, the court may order payment according to a schedule, or make payment a condition of probation, with the schedule to be worked out between the defendant and the probation officer.{122}

§ 37.21

Sentence Reconsideration

V.R.Cr.P. 35 and 13 V.S.A. § 7042 permit motions to the sentencing court for review of both the legality and the equity of the sentence imposed.

§ 37.22

- Correcting an Illegal or Illegally Imposed Sentence

A motion challenging a sentence as illegal can be filed at any time{123} (illegal sentences can also be challenged by petition for postconviction relief in superior court{124}).

An illegal sentence is "one that is not authorized by statute."{125} It should also include sentences which are not authorized by the constitution, for example, a sentence of imprisonment after the defendant has been denied assignment of counsel, or a vindictive sentence.{126}

Despite the rule's permission of a motion "at any time" the Vermont court has refused to pass on a Rule 35 claim of sentence illegality on the ground that the claim could have been but had not been raised on appeal from the conviction.{127}

The defendant can also move to reconsider sentence on the ground that it was "imposed in an illegal manner[,]"{128} that is, "pursuant to a legally deficient or unlawful procedure[,]" although within statutory limits.{129} Such motions must be filed within the same ninety-day period allowed for discretionary sentence reduction motions.{130}

§ 37.23

- Discretionary Sentence Reductions

On motion by the defendant or sua sponte the judge can reduce a sentence on purely equitable grounds.{131} The motion must be filed within ninety days of the sentence.{132} The defendant has a right under the public defender statute to assignment of counsel to help him or her prepare and argue the motion,{133} but the judge can deny it without a hearing if it raises no bona fide factual dispute.{134}

Sentence reconsideration under the rule is broadly discretionary. The procedure is meant "to permit the trial judge to reconsider the sentencing decision absent the heat of trial pressures and in calm reflection to determine that it is correct, fair, and serves the ends of justice."{135}

The scope of what a judge can consider, however, has been limited by case law to "circumstances and factors present at the time of the original sentencing, rather than defendant's conduct and behavior since sentencing." Postsentencing conduct affects parole decisions but does not constitute a ground for sentence reconsideration.{136}

The sentencing judge can avoid this harsh limitation, however, by specifically inviting a sentence reconsideration motion, and informing the defendant that his postsentencing behavior will be relevant.{137} Defense counsel who anticipates a postappeal sentence reconsideration motion,{138} should ask the judge to go this route.

Postappeal Reconsideration Motions

If the defendant appeals his conviction, a Rule 35(b) motion can be made within ninety days "after entry of any order or judgment of the Supreme Court upholding a judgment of conviction." When the conviction has been appealed, defendants are usually well-advised to wait until after the appeal is decided before filing for sentence reconsideration.

§ 37.24

- Sentence Reconsideration on the Prosecutor's Motion

The prosecution can also move to modify the sentence, but its rights are more limited than the defendant's. The motion must be filed within seven days of the sentence;{139} the state must allege new evidence which it could not have discovered "with due diligence . . . at the time of the initial sentencing."{140} Few prosecution motions will pass this test. If the statute is complied with, however, an increase in the defendant's sentence does not violate double jeopardy.{141}

1. For felony cases handled by public defenders in fiscal year 1991 the percentages were 65 percent of all felonies (886 out of 1364) and 67 percent of misdemeanors (4886 out of 7219). Excluding charges that were dismissed pursuant to a plea bargain on companion charges, the figures are significantly higher: 79 percent of felonies (886 out of 1125) and 81 percent of misdemeanors (4886 out of 6035).

2. See Solem v. Helm, 463 U.S. 277 (1983).

3. Harmelin v. Michigan, 111 S. Ct. 2680 (1991).

4. State v. Saari, 152 Vt. 510, 515 n.3 (1989); State v. Burlington Drug Co., 84 Vt. 243, 249 (1911).

5. State v. Ramsay, 146 Vt. 70, 81 (1985).

6. V.R.E. 1101(b)(3).

7. Most federal courts hold that the fourth amendment exclusionary rule does not ordinarily bar admission of illegally seized evidence at sentencing. See United States v. Tejada, 956 F.2d 1256 (2d Cir. 1992). Compare State v. Cox, 147 Vt. 421, 425 (1986) (sentencing court should not have considered defendant's involuntary admissions).

8. V.R.Cr.P. 32(c)(4); State v. Drake, 150 Vt. 235, 236 (1988).

9. V.R.Cr.P. 32(c)(4); State v. Ramsay, 146 Vt. 70, 78 (1985).

10. V.R.Cr.P. 32(a)(1).

11. State v. Saari, 152 Vt. 510, 521-22 (1989).

12. State v. Dean, 148 Vt. 510, 513 (1987). Delays should therefore be judged by the four-part speedy trial test of Barker v. Wingo, 407 U.S. 514 (1972). See §§ 12.02-12.06.

13. V.R.Cr.P. 32(c)(1); 28 V.S.A. § 204(a),(b). The court can dispense with a PSI if the defendant has two or more felony convictions, refuses to be interviewed by the probation officer, or it is "impractical to verify the background of the defendant." V.R.Cr.P. 32(c)(1)(B)-(D).

14. See § 7.20.

15. V.R.Cr.P. 32(c)(1); 28 V.S.A. § 204(a).

16. 28 V.S.A. 204(a),(e); V.R.Cr.P. 32(c)(2).

17. 28 V.S.A. § 204(f).

18. 28 V.S.A. § 204(a).

19. V.R.Cr.P. 32(c)(3).

20. V.R.Cr.P. 32(a)(1)(B). There is no requirement of a personal address, and vague indications that the defendant has seen the report are enough. See State v. Senna, 154 Vt. 343, 347 (1990); State v. Gabert, 152 Vt. 83, 90 (1989); State v. Black, 151 Vt. 253, 256 (1989).

21. 28 V.S.A. § 204(d); V.R.Cr.P. 32(c)(3). Sentencing materials not covered by this confidentiality provision are presumptively open to the press and public. See State v. Densmore, No. 91-434 (Vt. March 12, 1993) § 22.03, supra.

22. §§ 37.09-.11.

23. 147 Vt. 421 (1986), cert. dismissed, 482 U.S. 904 (1987).

24. State v. Cox, 147 Vt. 421, 425 (1986).

25. Cf. Estelle v. Smith, 451 U.S. 454 (1981).

26. Estelle v. Smith, 451 U.S. 454, 470 n.14 (1981) (counsel could contribute little and might serious disrupt the examination). The sixth amendment only requires that counsel must be informed of the procedure and permitted to advise her client how to proceed. Id. at 470-71; Buchanan v. Kentucky, 483 U.S. 402, 424-25 (1987). See § 8.03, supra.

27. See State v. Derouchie, No. 90-247, slip op. 6-7 (Vt. Nov. 22, 1991); State v. Sims, No. 90-436, slip op. 16-18 (Vt. Nov. 8, 1991).

28. See § 14.04, 30.04.

29. Cf. State v. Begins, 147 Vt. 295 (1986) (immunity for defendant's testimony at probation revocation hearing). See § 30.04 for a fuller discussion of the Begins line of cases.

30. 28 V.S.A. § 204(d).

31. State v. Densmore, No. 91-434 (Vt. March 12, 1993).

32. V.R.Cr.P. 32(c)(4); 13 V.S.A. § 7006. See In re Meunier, 145 Vt. 414, 417-18 (1985) (victim's testimony allowed without special statutory permission).

33. Williams v. New York, 337 U.S. 241, 247 (1949); State v. Ramsay, 146 Vt. 70, 78 (1985); State v. Chambers, 144 Vt. 377, 383 (1984); In re Morrill, 129 Vt. 460, 465 (1971).

34. See State v. Ramsay, 146 Vt. 70, 79 (1985) (quoting Williams v. New York, 337 U.S. 241, 247 (1949) ("modern concepts individualizing punishment" require rejection of "rigid adherence to restrictive rules of evidence")).

35. V.R.Cr.P. 32(c)(4); State v. Ramsay, 146 Vt. 70, 78 (1985).

36. Townsend v. Burke, 334 U.S. 736, 741 (1948); State v. Ramsay, 146 Vt. 70, 78 (1985).

37. State v. Robinson, 146 Vt. 95 (1985) (rumors that defendant was a sneak thief and stole from his mother's purse); State v. Neale, 145 Vt. 423 (1985) (sheriff's testimony improperly insinuated defendant used children to dispense drugs).

38. State v. Rice, 145 Vt. 25, 31-33 (1984) (petition by 572 people complaining that judge's original sentence was too lenient). Cf. State v. Francis, 152 Vt. 628, 633 (1989) (defendant convicted of possessing marijuana in prison; prison officials could properly ask for stiff sentence to deter drug trafficking among inmates).

39. State v. Bushway, 146 Vt. 405, 407-08 (1985).

40. V.R.Cr.P. 32(c)(3); State v. Chambers, 144 Vt. 377, 384 (1984).

41. State v. Senna, 154 Vt. 343, 347 (1990) (court failed to disclose letter from department of corrections but letter's contents were also part of the PSI).

42. State v. Percy, No. 91-463, slip op. 15 (Vt. April 2, 1992) (judge's ex parte conversation with department of corrections employee on "technical" sentence computation questions).

43. See § 37.14.

44. In re Stevens, 144 Vt. 250, 258 (1984).

45. V.R.Cr.P. 32(c)(3).

46. V.R.Cr.P. 32(c)(4). The rule reverses previous case law, which put the burden on the defendant to show unreliability. State v. Ramsay, 146 Vt. 70, 79 (1985); State v. Chambers, 144 Vt. 377, 384 (1984). The preponderance standard may be more than the federal constitution requires. See Pennsylvania v. McMillan, 477 U.S. 79 (1986).

47. V.R.Cr.P. 32(c)(4). State v. Grenier, No. 90-313, slip op. 7-8 (Vt. Feb. 28, 1992). A reviewing court will probably not go behind a judge's statement on the record that disputed material will play no role in the sentencing. State v. Percy, No. 91-463, slip op. 13 (Vt. April 2, 1992); State v. Meyers, 153 Vt. 219, 223 (1989); State v. Rathburn, 140 Vt. 382, 388 (1981). But see In re Meunier, 145 Vt. 414, 419 (1985) (flagrant violations may warrant relief even if judge undertakes not to consider inadmissible material).

48. V.R.Cr.P. 32(c)(4). See State v. Grenier, No. 90-313, slip op. 4 (Vt. Feb. 28, 1992) (requiring strict compliance).

49. 137 Vt. 361, 365 (1979).

50. 146 Vt. 70 (1985).

51. Pennsylvania v. McMillan, 477 U.S. 79 (1986); State v. Thompson, 150 Vt. 640, 645-46 (1989). See § 32.02.

52. State v. Ramsay, 146 Vt. 70, 80 and n.4 (1985) (citing and following the ABA Standards for Criminal Justice § 18-5.1).

53. State v. Ramsay, 146 Vt. 70, 81 (1985). Compare State v. McCarthy, 156 Vt. 148, 155-56 (1991) (noting rule barring cross-examination of defendant and character witnesses about arrests, dismissed charges, and acquittals).

54. State v. Drake, 150 Vt. 235, 237 (1988).

55. State v. Drake, 150 Vt. 235, 237 (1988).

56. State v. Doucette, 150 Vt. 125, 127 (1988) (quoting Sekou v. Blackburn, 796 F.2d 108, 112 (5th Cir. 1986)).

57. See State v. Thompson, 150 Vt. 640, 644 (1989) (only the latter use of prior convictions is the kind of "enhancement" which requires special pleading and proof).

58. 23 V.S.A. § 1210.

59. 23 V.S.A. § 674(a).

60. State v. Bradley, 145 Vt. 492, 495 (1985); State v. Cameron, 126 Vt. 244, 248-49 (1967).

61. State v. Cameron, 126 Vt. 244, 248-49 (1967).

62. See, e.g., State v. Helton, 151 Vt. 321, 323 (1989) (military court martial conviction useable in part because "sentencing court may properly rely upon prior alleged offenses for which a defendant has not even been convicted").

63. Baldasar v. Illinois, 446 U.S. 222 (1980); United States v. Tucker, 404 U.S. 443, 449 (1972). See § 6.04.

64. See In re Kasper, 145 Vt. 117 (1984) (overturning guilty plea convictions which had been used as predicates for a habitual offender sentence, on the defendant's petition for postconviction relief).

65. State v. Whitney, 156 Vt. 301, 302 and n.* (1991) (noting that some courts apply Tucker to other constitutional defects, such as involuntariness of plea). Compare State v. Thompson, No. 85-392 (Vt. Nov. 10, 1987) (unpublished) (transcripts of prior convictions indicate violations of Boykin v. Alabama, 395 U.S. 238 (1969) and noncompliance with V.R.Cr.P. 11(c); defendant should be resentenced as first offender).

66. See § 6.04; Parke v. Raley, 113 S. Ct. 517 (1992).

67. V.R.Cr.P. 32(a)(1)(C).

68. In re Stevens, 144 Vt. 250, 259 (1984) (quoting Green v. United States, 365 U.S. 301, 304 (1961)).

69. State v. Saari, 152 Vt. 510, 520-21 (1989).

70. State v. Germaine, 152 Vt. 106, 107-08 (1989).

71. In re Stevens, 144 Vt. 250, 259-60 (1984).

72. 13 V.S.A. § 1.

73. 23 V.S.A. § 2302.

74. See App. 18.

75. See chapter 38.

76. The federal sentencing guidelines were promulgated pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551, et seq. The United States Supreme Court rejected a constitutional challenge to the guidelines scheme in Mistretta v. United States, 488 U.S. 361 (1989).

77. See Federal Sentencing Guidelines § 5A (Nov. 1991).

78. See M. Pinales, Federal Sentencing Guidelines, The Champion 26 (June 1992).

79. U.S. Sentencing Commission Guidelines Manual § 4A1.1.

80. 13 V.S.A. § 7031(a).

81. See §§ 7.21, 37.18.

82. See § 37.18.

83. 28 V.S.A. § 501(a).

84. State v. Bushway, 146 Vt. 405, 408 (1985); State v. Bruley, 129 Vt. 124, 130 (1970); In re Parent, 125 Vt. 474 (1965).

85. State v. Bushway, 146 Vt. 405, 408 (1985) (18-20 years for sexual assault); Woodmansee v. Stoneman, 133 Vt. 449, 461 (1975).

86. 28 V.S.A. § 501(b).

87. 13 V.S.A. § 2303(a),(b).

88. 13 V.S.A. § 1028(a)(1),(2).

89. See 28 V.S.A. §§ 674, 1210.

90. 152 Vt. 510 (1989).

91. Vt. Const. ch. II, § 39.

92. State v. Saari, 152 Vt. 510, 515-20 (1989).

93. 13 V.S.A. § 2501.

94. 13 V.S.A. § 7032(b).

95. 13 V.S.A. § 7032(c)(1).

96. 13 V.S.A. § 7032(c)(2).

97. St. Gelais v. Walton, 150 Vt. 245, 248 (1988).

98. St. Gelais v. Walton, 150 Vt. 245, 248 (1988).

99. 13 V.S.A. § 7031(b).

100. See § 7.21.

101. 28 V.S.A. § 811(a).

102. Venman v. Patrissi, 156 Vt. 257 (1991).

103. Venman v. Patrissi, 156 Vt. 257, 259 (1990); Trivento v. Commissioner of Corrections, 135 Vt. 475, 479 (1977).

104. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); 28 V.S.A. §§ 852-53.

105. Note that a sentence of 12 months is 360 days (12 x 30) while a one-year sentence is five days longer.

106. A good general work on prisoners' rights issues is G. Gabert and N. Cohen, Rights of Prisoners (1981, 1991).

107. Transfers to the federal prison system are authorized by 18 U.S.C. § 5003 and 28 V.S.A. § 706(a). Vermont is also a member of the New England Corrections Compact, 28 V.S.A. §§ 1401-10, and the Interstate Corrections Compact, 28 V.S.A. §§ 1601-10.

108. 28 V.S.A. § 706(a).

109. See Howe v. Smith, 452 U.S. 473 (1981); Rebideau v. Stoneman, 398 F. Supp. 805 (D.Vt. 1975), aff'd, 575 F.2d 31 (2d Cir. 1978) (per curiam).

109.5. V.S.A. § 8.08. See also 28 V.S.A. §§ 753-55 (work release programs).

110. 28 V.S.A. § 351(1).

111. 28 V.S.A. § 351(2).

112. 28 V.S.A. § 352(c).

113. 28 V.S.A. §§ 352(d); 353(6); 354.

114. 28 V.S.A. §§ 363-65; 371-74.

115. 28 V.S.A. § 361.

116. 28 V.S.A. § 362.

117. 28 V.S.A. § 362(3).

118. Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).

119. Vt. Const. ch. II, § 40.

120. See State v. Sausville, 151 Vt. 120 (1989); State v. Curtis, 140 Vt. 621, 623 (1982); State v. Benoit, 131 Vt. 631, 635 (1973).

121. § 38.09.

122. 28 V.S.A. § 252(b)(7).

123. V.R.Cr.P. 35(a).

124. 13 V.S.A. §§ 7131 et seq. Rule 35 cannot be used as a vehicle to challenge a conviction (e.g., on the basis of trial error) under the guise of challenging the sentence.

125. V.R.Cr.P. 35, Reporter's Notes.

126. But see State v. Percy, No. 91-463 (Vt. April 2, 1992) (unpublished) ("a sentence is illegal within Rule 35 if it is contrary to the applicable statute, is imposed without jurisdiction or is imposed in excess of the statutory maximum").

127. State v. Percy, No. 91-463 (Vt. April 2, 1992) (unpublished).

128. V.R.Cr.P. 35(a).

129. V.R.Cr.P. 35(a), Reporter's Notes.

130. V.R.Cr.P. 35(a),(b).

131. V.R.Cr.P. 35(b); 13 V.S.A. § 7042(a).

132. Although the rule and statute, read literally, seem to require a ruling on sentence reduction within 90 days, the Vermont Supreme Court has held that the 90-day period is the time within which the motion must be filed, and a hearing and ruling can come a reasonable time thereafter. State v. Desjardins, 144 Vt. 473, 476 (1984).

133. State v. Rice, 148 Vt. 313 (1987).

134. State v. Allen, 145 Vt. 393, 395 (1985).

135. State v. Rice, 145 Vt. 25, 32 (1984); State v. Therrien, 140 Vt. 625, 627 (1982).

136. State v. Lapine, 148 Vt. 14, 15 (1987). The Vermont Supreme Court summarily refused to reconsider Lapine in State v. Roy, 154 Vt. 645 (1990). By contrast, sentence reconsideration on the defendant's motion cannot be limited to "new evidence or extraordinary new circumstances. . . ." State v. Lertola, 140 Vt. 623, 624 (Vt. 1982).

137. State v. Derouchie, No. 90-247, slip op. 5 (Vt. Nov. 22, 1991).

138. See, infra.

139. V.R.Cr.P. 35(c); 13 V.S.A. § 7042(b).

140. State v. Rice, 145 Vt. 25, 33-34 (1984).

141 United States v. DiFrancesco, 449 U.S. 117 (1980); State v. Rice, 145 Vt. 25, 28-29 (1984).