State v. Vincent Brown ( 2011 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2010-365
MARCH TERM, 2011
State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Chittenden Unit,
} Criminal Division
}
Vincent T. Brown } DOCKET NO. 3434-7-04 Cncr
Trial Judge: Linda Levitt
In the above-entitled cause, the Clerk will enter:
Defendant appeals the decision of the superior court, criminal division, denying his
motion for sentence reconsideration. We affirm.
On June 25, 2007, after entering into a plea agreement, defendant was convicted of
embezzlement, sentenced to a term of two-to-five years, all suspended, and placed on probation.
On May 4, 2010, following a violation-of-probation (VOP) hearing, the criminal division
revoked defendant’s probation and sentenced him to serve a term of eighteen months to eighteen
months and one day, with credit for time served. Defendant, who was represented by counsel at
the VOP hearing, did not appeal the court’s decision. On July 22, 2010, defendant filed a pro se
motion for sentence reconsideration pursuant to 13 V.S.A. § 7042(a) and V.R.Cr.P. 35(b). In his
motion, he acknowledged that his sentence was lawful, but argued that it was unduly harsh and
disproportionate given the nature of the violations. The motion was filed in the wrong court but
was transferred to the criminal division on August 18, 2010. The following day, the court denied
the motion, stating that the sentence had been imposed after consideration of all of the facts and
circumstances.
Virtually all of defendant’s claims on appeal challenge the revocation of his probation,
from which he did not appeal. Accordingly, we do not consider those issues. Defendant’s sole
argument regarding his sentence is that the sentence, while lawful, is disproportionate to what he
considers to be technical violations of his probation conditions. We find no basis to overturn the
court’s denial of defendant’s motion for sentence reconsideration. Defendant admitted at the
VOP hearing that he failed to report to his probation officer on numerous occasions and to
complete the 200 hours of community service that he was required to do under the original
sentence. These were not technical violations. The court acted within its “wide discretion” in
requiring defendant to serve a portion of his original sentence. See 28 V.S.A. § 304(b)(5)
(noting that, upon finding probation violation, court may, among other things, “[c]ontinue the
probationer on the existing sentence, but require the probationer to serve any portion of the
sentence”); State v. King, 2007 VT 124, ¶ 6, 183 Vt. 539 (mem.) (“The trial court has wide
discretion in determining what factors to consider during sentence reconsideration.”).
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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John A. Dooley, Associate Justice
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Marilyn S. Skoglund, Associate Justice
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