State v. Edward Skinner

2

violation for consuming alcohol and imposed an additional thirty days of the suspended portion of defendant's sentence. The court found no evidence that defendant's drinking had contributed to any criminal activity, although it recognized that there was a risk of that. The court warned that further violations might result in revocation because "to not revoke would depreciate the seriousness of the violations or the pattern of violations."

The State then filed a fourth probation violation, alleging that defendant consumed alcohol daily and engaged in violent or threatening behavior towards his neighbors, a couple with children who lived in the same duplex. At the hearing on the violation, the wife testified that defendant was angry about the couple's dog's excrement on the lawn. She stated that defendant was intoxicated almost every day. She testified that defendant watched her from his house and she was frightened and stopped bringing her dogs into the yard. She described one day when defendant was in his yard and an argument ensued about the dog excrement. The argument escalated and defendant stated that he would kill the neighbors. She was frightened and feared for her life. The husband testified similarly, stating that defendant screamed that he was going to kill him, called him a "punk bitch," and told him he was going to "kick [his] ass."

Defendant went back into his home and neighbors alerted the police. Eventually neighbors moved to a different home because they were concerned for their safety. Defendant testified. He denied drinking or threatening the neighbors. He stated that he simply wanted neighbors to clean up after their dogs. The court credited the neighbors' account of the incident with defendant and found that defendant violated the probation condition prohibiting threatening behavior. Prior to making its decision on how to sentence defendant for the probation violation, the court heard testimony from defendant's probation officer. The probation officer stated that defendant had not been regularly attending the programming in the community for domestic violence, and that the Department of Corrections (DOC) was seeking revocation of probation because the DOC was unable to adequately supervise defendant in the community. The probation officer also testified that the domestic-violence accountability program defendant was attending in the community was not available in an incarcerative setting, but defendant would be referred for risk-reduction programming that was not offered in the community. The probation officer explained that this program provided a broader spectrum of tools including how to manage emotions and life skills.

The court made findings on the record. The court explained that defendant had previously violated his probation and had displayed difficulty complying with conditions. In the context of this violation, the court found that defendant engaged in poor judgment and demonstrated an inability to regulate his emotions. The court noted that defendant's underlying conviction for aggravated domestic assault also demonstrated a tendency to lash out with violence. The court found that revocation was appropriate because defendant needed treatment that could most effectively be provided if confined. In particular, the court found that defendant would benefit from risk-reduction programming, which was not available in the community. Defendant subsequently moved for sentence reduction under Rule 35, arguing among other things that he did not engage in threatening behavior and he was receiving adequate programming in the community. The State responded that defendant's motion was untimely because probation revocation did not amount to imposition of a sentence as used in 13 V.S.A.

3

§ 7042(a) and Rule 35(b).¹The State also argued that the motion should be denied on the merits because the court acted within its discretion in revoking probation. The criminal division rejected the State's argument regarding untimeliness. It concluded that although defendant's request to reconsider the underlying sentence was untimely, it could reconsider whether to reduce or eliminate the unsuspended portion of defendant's sentence. As to the merits, the court was not persuaded that any change to the sentence was warranted. The court found that the revocation of probation was largely based on the need for programming that could be provided while incarcerated and the DOC's representation that defendant could not be adequately supervised in the community. Defendant appeals.

Rule 35(b) allows the court to "reduce a sentence within 90 days after the sentence is imposed," and to "reduce a sentence upon revocation of probation as provided by law."

V.R.Cr.P. 35(b); see 13 V.S.A. § 7042 (providing trial court with authority to reduce sentence). This Court reviews the denial of a motion for sentence reconsideration for an abuse of discretion. See State v. Oscarson, 2006 VT 30, ¶ 7, 179 Vt. 442. "The trial court has broad discretion in deciding what factors to rely on during sentence reconsideration." State v. Smith, 2026 VT 22, ¶ 19.

On appeal, defendant argues that the underlying probation-revocation decision was based on two unsupported findings regarding the availability of treatment in the community and defendant's attendance at community programming for domestic violence and that the court erred in relying on these findings to deny reconsideration. Defendant points out that at the probation-revocation hearing, the court found that defendant required risk-reduction programming, which could be provided only while incarcerated, as opposed to the domestic- violence programming he was receiving in the community. Defendant asserts that the criminal division lacked sufficient information regarding the programming he was receiving in the community and how it compared to the risk-reduction programming provided by the DOC to make these findings.

Defendant's contentions amount to a challenge to the sufficiency of the sentencing evidence, which is beyond the scope of sentence reconsideration. See State v. King, 2007 VT 124, ¶ 7 n.*, 183 Vt. 539 (mem.) (declining to reach several arguments, including adequacy of findings from sentencing, because they were beyond scope of sentence-reconsideration hearing). This is not a direct appeal from the probation-revocation decision. Sentence reconsideration is a narrow remedy that allows a judge to "reconsider the sentencing decision absent the heat of trial

4

pressures and in calm reflection to determine that it is correct, fair, and serves the ends of justice." Therrien, 140 Vt. at 627.²

The court here did not abuse its discretion in denying the motion for sentence reconsideration. Pursuant to statute, probation may be revoked if the court finds that confinement is necessary to protect the community, the defendant is "in need of correctional treatment which can most effectively be provided if he or she is confined," or "it would unduly depreciate the seriousness of the violation if probation were not revoked." 28 V.S.A. § 303(b). The court based its probation-revocation decision on its determination that defendant required treatment that could be most effectively provided while incarcerated. On reconsideration, the court examined the original basis for revocation of defendant's probation, including defendant's past violation of probation, the DOC's representation that it could not adequately supervise defendant, and defendant's need for risk-reduction programming that was not available in the community. Upon reflection, the court concluded that there was no basis to disturb the prior decision to revoke probation. Because the court adequately reconsidered the factors supporting its original revocation decision, there are no grounds for reversal. Affirmed.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice Nancy J. Waples, Associate Justice Christina E. Nolan, Associate Justice