27 A.3d 1059
Vt.2011Background
- Sommer was serving a prior sentence when arraigned on new burglary, attempted burglary, unlawful mischief, and larceny counts and held on $100,000 bail.
- He had completed the minimum on his first sentence and was in community status until it was revoked, resulting in 13 months of incarceration between arraignment and sentencing.
- On May 11, 2009, Sommer received a second sentence of six to twelve years on five counts, to run concurrently, with the second sentence imposed consecutive to the first.
- Sommer moved for credit against the second sentence minimum for the 13 months pre-sentencing incarceration and for a possible reduction of the minimum.
- The District Court dismissed, ruling that credit determinations are DOC’s responsibility under 13 V.S.A. § 7044 and that Sommer could seek review via DOC grievance or Rule 75 upon DOC’s calculation.
- Sommer appealed, arguing the trial court erred by dismissing for lack of jurisdiction and that he is entitled to presentence credit; the Supreme Court held the motion premature but addressed merits, ultimately ruling the claim fails under existing precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction and prematurity of the motion | Sommer | State | Premature; court lacked necessary DOC calculation to decide credit issue |
| Merits of presentence credit against second sentence minimum | Sommer | Sommer | No entitlement to double credit; credit against first sentence does not apply to second when sentences run consecutively |
| Appropriate forum and method to challenge credit | Sommer | Sommer | Options clarified: trial court can decide if legal issue is resolvable, or rely on DOC under 7044(a), or review via Rule 35/Rule 75 context; proceeding here was premature |
| Consistency with Blondin/Lanman on presentence credit | Sommer | State | Blondin/Lanman bar double credit; presentence time is not credited to both sentences when consecutive |
Key Cases Cited
- State v. Blondin, 164 Vt. 55 (1995) (presentence time cannot be credited to multiple sentences to create double credit)
- State v. Lanman, 171 Vt. 547 (2000) (double credit not allowed; time served credited toward first sentence when second is consecutive)
- State v. Young, 181 Vt. 603 (2007) (discusses trial court vs. DOC calculation and review avenues under §7044 and §7031)
- Martel v. Lanman, 171 Vt. 547 (2000) (review context for credit decisions under 13 V.S.A. §7031)
- Arcand, 403 N.W.2d 23 (N.D. 1987) (foreign (non-Vermont) parallel Rule 35(a) analysis for credit of days in custody)