Find Legal Information

State v. Koons, Jr. (2010-079)

2011 VT 22

[Filed 10-Feb-2011]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports.  Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press.

2011 VT 22

No. 2010-079

State of Vermont

Supreme Court

On Appeal from

     v.

District Court of Vermont,

Unit No. 3, Franklin Circuit

Terry L. Koons, Jr.

November Term, 2010

Michael S. Kupersmith, J.

William H. Sorrell, Attorney General, and Ultan Doyle, Assistant Attorney General, Montpelier,

  for Plaintiff-Appellee.

Frank H. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Defendant-Appellant.

PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

1.             JOHNSON, J.   Defendant was convicted of one count of sexual assault on a minor and one count of lewd or lascivious conduct with a child.  He challenges his aggregate sentence of six to twenty-five years to serve on the grounds that: (1) it is grossly disproportionate to the crimes; and (2) the sentencing court improperly relied on conduct underlying a prior acquittal without providing notice and an opportunity to respond.  We agree with the second claim, and therefore vacate the sentence and remand for resentencing. 

2.             This case arose out of a sexual relationship that began when defendant was nineteen years old and the complainant was fifteen years old.  The relationship lasted several months and ended just short of the complainants sixteenth birthday.  The complainant testified that she became pregnant and believed defendant to be the father but acknowledged that DNA testing later disproved his paternity.  The charge of lewd or lascivious conduct involved a single incident in which defendant, then nineteen years old, fondled another fifteen-year-old girl while she lay in bed with defendant and the complainant.  At trial, defendant denied knowing either victim or committing the charged misconduct.  The jury, as noted, returned verdicts of guilty as to both offenses.

3.             A presentence investigation report (PSI) and psychological evaluation were provided to the parties and the trial court prior to the sentencing hearing.  The PSI disclosed an extensive criminal record, including convictions for aggravated domestic assault, DUI, simple assault, unlawful mischief, and several probation violations.  Based upon this history and defendants failure to take responsibility for his current crimes, the PSI recommended a sentence of ten to twenty-five years to serve for the sexual assault and a consecutive sentence of five years to serve for the lewd or lascivious conduct. 

4.             The psychological evaluation, in contrast, concluded that the recommended sentence was excessive.  The evaluator, a clinical psychologist, noted that the offense involved consensual sexual relations with a girl several months shy of her sixteenth birthday when defendant was nineteen and that defendant had since acknowledged the relationship; that defendant had the advantages of a supportive family and a good job and home to which he could return upon his release; and that defendant would benefit from both cognitive self-change programming while incarcerated as well as the developmental maturity that came with age.  The evaluator concluded that defendant was capable of altering his life toward more productive ends and recommended that any sentence consider the probable success of treatment and supervision strategies.  

5.             Defendant submitted a sentencing memorandum in response to the PSI, urging imposition of the minimum sentence necessary to complete sex-offender programming.  He noted that the PSI continued to erroneously allege that he had fathered the complainants child,  claimed that he had since accepted responsibility for the offenses, and pointed out that all but one of his prior convictions were misdemeanors.

6.             At the sentencing hearing in January 2010, the court informed the parties that it had reviewed the PSI, psychological evaluation, and sentencing memorandum, and confirmed that neither party wished to present additional evidence apart from a statement in allocution from defendant.  The states attorney argued briefly in support of the PSIs recommended sentence, citing defendants perjury at trial, criminal record, and poor history of supervision.  She concluded with a final reason predicated on an earlier, unrelated criminal action against defendant that had resulted in an acquittal.  The states attorney reminded the court that it had presided at that trial as wellwhich had also involved an allegation of inappropriate sexual conduct with a minorand urged the court to make a finding that that event occurred, based on your Honor sitting on that case and to consider that in formulating a sentence.  The court responded that it remember[ed] the case vaguely and asked whether defendant had testified on his own behalf.  The prosecutor stated that she could not recall, but asserted that defendant plainly had an issue with young females.   

7.             Defense counsel argued for the minimum sentence necessary to complete sex offender counseling, which he estimated to be three to five years to serve.  Counsel cited defendants recent acceptance of responsibility for the offenses, the ages of defendant and the complainant at the time of the offenses, and defendants amenability to rehabilitation and desire to lead a productive life.  Defendant spoke briefly, apologizing to the complainant and the court for his behavior, admitting his guilt, and asking for lenience.     

8.             The trial court then outlined its basic sentencing considerations.  First, the court observed that theres a problem about having sex with young women.  Second, it found disturbing defendants willingness to lie at trial.  Despite this, the court explained, it did not intend to impose the full sentence recommended by the State.  And Im doing that, it continued, even though I believe that this wasnt the first young girl that you had sex with.  The offense for which you were acquitted, I believe that the state established by clear and convincing evidence that you did have sexual relations with that girl.   

9.             The court then indicated that it intended to impose a significant period of time to serve substantially in excess of that requested by defendant.  And the reason, the court explained, is double deterrence.  Deterrence from having sex with young girls and a deterrence from coming in here and lying.  And . . . theyre both, in my mind, equally important.  The court thereupon imposed a sentence of five to twenty years to serve for the sexual assault (five fewer than the minimum recommended by the State) and a consecutive sentence of one to five years for the lewd or lascivious conduct, for an aggregate sentence of six to twenty-five years to serve.  This appeal followed.[1]

10.         The trial court enjoys broad discretion in sentencing, and its judgment will be affirmed if the sentence falls within the statutory limits and is not derived from the courts reliance on improper or inaccurate information.  State v. Ingerson, 2004 VT 36, 10, 176 Vt. 428, 852 A.2d 567.  To ensure reliability, our rules establish a process of disclosure and opportunity to rebut.  State v. Ramsey, 146 Vt. 70, 78, 499 A.2d 15, 20 (1985).  Thus, a PSI must be made available for inspection at least fourteen days prior to sentencing, and all information submitted for consideration at sentencing must be disclosed sufficiently in advance to afford a reasonable opportunity to rebut [the] information to be presented.  Id.; see V.R.Cr.P. 32(c)(3) (Any other information submitted to the court for consideration at sentencing shall be disclosed sufficiently prior to the imposition of sentence as to afford reasonable opportunity for the parties to decide what information, if any, the parties intend to controvert by the production of evidence.).     

11.         Defendant asserts that the trial court here erred in relying on the prior sexual assault charge that had resulted in an acquittal without affording him notice and an opportunity to respond.[2]  Because defendant failed to raise this objection at the sentencing hearing, we review solely for plain error.[3]  Plain error analysis requires us to consider whether these are exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendants constitutional rights.  State v. Yoh, 2006 VT 49A, 39, 180 Vt. 317, 910 A.2d 853 (quotation omitted).  In applying this standard, we have utilized the more concrete federal test, which requires as follows: First, there must be an error; second, the error must be obvious; and third, it must affect substantial rights and result in prejudice to the defendant.  Id.  If these criteria are satisfied, we will correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings.  Id. (quotation omitted). 

12.         As to the first criterion, the finding of error here is inescapable.  Nothing in the PSI referred to defendants earlier acquittal or gave any indication that the State intended to rely on the underlying charge and conductdespite the not-guilty verdictat the sentencing hearing.  Thus, the circumstances are plainly distinguishable from the case cited by the State as controlling, State v. Pellerin, 164 Vt. 376, 670 A.2d 255 (1995).  There, the victim of an earlier offense committed by the defendant testified at sentencing without prior notice, but the defendant had been notified of the States intent to rely on the prior conviction and was given ample opportunity to controvert the witnesss testimony through cross-examination.  Id. at 382-83, 670 A.2d at 259-60.  Here, there was no such notice and opportunity.  The error was patent.    

13.         The second step of the test requires that the error be plain.  A plain error is one that is clear or obvious under existing law.  See, e.g., United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009) (error must be clear under existing law); United States v. Phaneuf, 91 F.3d 255, 263 (1st Cir. 1996) (plain error is an obvious and clear error under current law).  There is no question that Vermont Rule of Criminal Procedure Rule 32(c)(3) existed in its current form at the time of the sentencing in this case and required both advance notice of any information on which the State intended to rely and an opportunity to respond.  The error here was therefore plain.       

14.         The third step of the analysis requires a showing that the error was prejudicial and affected substantial rights.  The State asserts in this regard that there was no prejudice to defendant because the trial court either did not rely on the earlier acquitted conduct or any possible reliance was inconsequential.  The record shows otherwise.  The states attorney raised the issue, urging the court to find, despite defendants acquittal, that the prior sexual assault had occurred and to consider that in formulating a sentence.  Although the court initially indicated that it remembered the case only vaguely, it later found that defendant did have sexual relations with the alleged victim.  The courts reliance on the acquitted conduct in formulating a sentence was also palpable.  While noting that it did not intend to impose the full sentence recommended by the State despite its finding on the prior sexual assault, the court explained that it was nevertheless persuaded to impose a significant period of time to serve for two equally important reasons: defendants coming in here and lying, and his having sex with young girls.  The courts findingon the basis of the earlier chargethat this wasnt the first young girl that you had sex with leads to the unavoidable conclusion that the acquitted conduct played a material part in its decision to impose a significant sentence.  Thus, the prejudice herelike the error itselfis plain.

15.         The final question is whether the error seriously affects the fairness, integrity or public reputation of judicial proceedings.  Yoh, 2006 VT 49A, 39.  Although these categories are broad and offer little in the way of specific guidance, we find instructive a number of federal decisions holding in similar circumstances that a trial courts detrimental reliance on information not disclosed in advance of sentencing raises serious concerns about the fairness, integrity, and reputation of the judicial process.  See, e.g., United States v. Lovelace, 565 F.3d 1080, 1092-93 (8th Cir. 2009) (concluding that trial courts reliance on personal knowledge of earlier uncharged offense without notice to defendant was plain error that raise[d] serious concerns about fairness and thus required reversal); United States v. Hayes, 171 F.3d 389, 395 (6th Cir. 1999) (holding that trial courts reliance on undisclosed victim impact letters at sentencing was the type of error that may undermine the fairness of a proceeding and that certainly tarnishes the public reputation of judicial proceedings and therefore warranted relief); United States v. Valentine, 21 F.3d 395, 398 (11th Cir. 1994) (concluding that, as a result of trial courts failure to provide advance notice of factors warranting enhanced sentence, defendant was deprived of a fundamentally fair sentencing hearing); United States v. Curran, 926 F.2d 59, 63-64 (1st Cir. 1991) (trial courts reliance at sentencing on undisclosed victim-impact statements risked appearance of impropriety in judicial process and thus compelled resentencing). 

16.         We conclude, similarly, that the trial courts reliance here on undisclosed acquitted conduct without the safeguards of Rule 32(c)(3) is precisely the kind of error that  that may impair the integrity of the judicial process and tarnish its reputation for fairness.  Accordingly, we conclude that defendants sentence must be vacated and the matter remanded for resentencing before a different judge.  See United States v. Craven, 239 F.3d 91, 103 (1st Cir. 2001) (holding that, where sentencing court improperly relied on undisclosed information, sentence must be vacated and cause remanded for resentencing before a different judge to maintain the perception of impartiality); In re Meunier, 145 Vt. 414, 423, 491 A.2d 1019, 1025 (1985) (sentencing error required reversal and remand for resentencing before a different judge [i]n order to ensure no inadvertent prejudice); State v. Neale, 145 Vt. 423, 436, 491 A.2d 1025, 1033 (1985) (holding that, where sentencing court improperly relied on hearsay evidence in imposing sentence, the Court would remand the case for resentencing before a different judge).[4] 

The sentence is vacated, and the cause is remanded for resentencing before a different judge.

FOR THE COURT:

Associate Justice

[1]  Defendant has challenged on appeal only the sentence imposed, not the underlying conviction. 

[2]  Defendant does not challenge, and we therefore do not address, the propriety of relying on acquitted conduct at sentencing.  We note, however, that the United States Supreme Court has expressly upheld the practice, see United States v. Watts, 519 U.S. 148 (1997), and many state courts have endorsed its reasoning that acquittal merely proves the existence of reasonable doubt as to . . . guilt and does not prevent the sentencing court from considering the conduct underlying the acquitted charge any more than it is prevented from using uncharged conduct, so long as it is proved by a preponderance of the evidence.  Id. at 155 (quotation omitted); see People v. Ewing, 458 N.W.2d 880, 893 n.15 (Mich. 1990) (observing that vast majority of jurisdictions have . . . held that a trial court may properly rely on evidence of crimes of which the defendant has been acquitted).  The practice, however, is not altogether free of criticism or controversy.  See generally E. Ngov, Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing, 76 Tenn. L. Rev. 235, 275, 284, 288 (2009) (urging discontinuance of use of acquitted conduct at sentencing because it invites courts to nullify juries, punish[es] a defendant for a crime that he did not commit, and unfairly affords the prosecution a second bite at the apple (quotation omitted)); M. Doerr, Note, Not Guilty? Go to Jail: The Unconstitutionality of Acquitted Conduct Sentencing, 41 Colum. Hum. Rts. L. Rev. 235, 273 (2009) (opining that use of acquitted conduct at sentencing raises constitutional concerns and threatens to diminish pubic confidence in the criminal justice system); see also United States v. White, 551 F.3d 381, 391 (6th Cir. 2008) (Merritt, J., dissenting) (The use of acquitted conduct at sentencing defies the Constitution, our common law heritage, the Sentencing Reform Act, and common sense.); United States v. Canania, 532 F.3d 764, 777 (8th Cir. 2008) (Bright, J., concurring) ([T]he unfairness perpetuated by the use of acquitted conduct at sentencing in federal district courts is uniquely malevolent.).  A minority of states have forbidden the use of acquitted conduct at sentencing, generally concluding that its use is inconsistent with the presumption of innocence where a defendant had been fully acquitted of such charges by a jury.  State v. Cote, 530 A.2d 775, 784 (N.H. 1987); accord Bishop v. State, 486 S.E.2d 887, 897 (Ga. 1997) (In aggravation of the sentence, the State may prove the defendants commission of another crime, despite the lack of a conviction, so long as there has not been a previous acquittal. (quotation omitted)); State v. Marley, 364 S.E.2d 133, 138 (N.C. 1988) (holding that use at sentencing of acquitted conduct is fundamentally inconsistent with the presumption of innocence itself).  Although we cited Watts with approval in State v. Grega, 168 Vt. 363, 386, 721 A.2d 445, 461 (1998), this Court has not specifically addressed the question, andas the issue has not been briefed and arguedwe defer it to another day.    

[3]  Although defendant does not explicitly argue plain error on appeal, he acknowledges the absence of an objection and asserts that the error violated his fundamental due process right to be sentenced on the basis of factually reliable and accurate information.  Accordingly, we conclude that the claim was adequately raised.

[4]  In light of our holding, we need not address defendants disproportionate-sentence claim, which may become moot after resentencing.