State of Vermont v. Gerald W. Blondin
[665 A.2d 587]
No. 94-048
Supreme Court of Vermont
Opinion Filed July 28, 1995
Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Robert Appel, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for Defendant-Appellant.
On June 27, 1993, while on parole in connection with a 1969 second-degree murder conviction, petitioner was arrested for simple assault and unlawful mischief. The new charges also constituted parole violations, which triggered revocation proceedings that were initiated that same day. Petitioner was arraigned on the new charges on June 29, but failed to post the required bond; accordingly, a mittimus issued for his pretrial detention. On July 20, 1993, petitioner‘s parole was revoked and he was given credit toward his paroled sentence for the time he spent in custody following his June arrest. On December 13, 1993, petitioner was convicted of simple assault and acquitted of unlawful mischief. On January 5, 1994, he was sentenced to eleven-to-twelve months to be served consecutively to the paroled sentence. Petitioner requested credit for the six months he spent in custody serving the underlying sentence before his sentencing on the assault conviction. The trial court denied any credit and petitioner appealed.
Petitioner argues that the plain meaning of
We decline to grant the double credit defendant seeks, which would, in effect, make the underlying and new sentences concurrent for the six-month period. See Emerson v. State, 498 N.E.2d 1801, 1302-03 (Ind. Ct. App. 1986) (if defendant were granted presentence credit against sentence imposed for escape in addition to credit for sentence being served at time of escape, effect would be to impose concurrent sentence for portion of escape sentence, despite fact that sentences were imposed consecutively). The plain meaning of
Such absurd consequences need not follow from
Federal and state courts reviewing almost identical statutes in analogous situations have not felt constrained by the plain-meaning rule to award double credit toward consecutively imposed sentences. Section 7031(b) is modeled after a virtually identical federal statute that was enacted in response to two United States Supreme Court opinions mandating credit for presentence jail time. Compare
For example, in Doyle v. Elsea, 658 F.2d 512 (7th Cir. 1981), a parolee was arrested and jailed on the charge of interstate transportation of forged travelers’ checks. A week later, a parole violation warrant was issued against the defendant; as a result of the warrant, the bondsman refused to bail him out, and he was unable to raise the full amount of bail in cash. He remained incarcerated for four months before he was convicted and sentenced for the new offense in 1978. Some time after the conviction, the parole violation warrant was lodged as a detainer against the defendant. Two years later, his parole was revoked, and he sought credit toward his underlying sentence for the four months he spent in jail before being convicted on the new offense.3 The district court granted the request, reasoning that his pretrial custody was “in connection with” his parole violation. In overruling the district court, the Seventh Circuit held as follows:
Doyle would have this court . . . hold that such credit must be granted without regard to whether the credit was also applied to the arrest-related sentence. Such a rule would
disregard the practical realities of the case before us. We therefore decline to adopt it. As a practical matter, Doyle spent four months in pretrial custody for two reasons: because he was accused of committing a crime, and because he was accused of violating his parole. It seems obvious ---- and not particularly unusual ---- that he was in pretrial custody “in connection with” both the violator term and the 1978 sentence. Therefore, under section 3568, he is entitled to receive credit for the pretrial custody. That is not to say that he is entitled to double credit. It simply means that he is entitled to have the total amount of time he must spend in prison under his two sentences reduced by the amount of time he spent in pretrial custody.
There is no dispute that Doyle received credit on his 1978 sentence for the full period he spent in pretrial custody. Because the parole violator term was ordered to run consecutively to the 1978 sentence, the effect of applying the credit to the 1978 sentence was to reduce the total amount of time Doyle must actually spend in prison by four months. That, and no more, is what Doyle is due under section 3568.
Id. at 515 (emphasis added); see Wolcott v. Norton, 365 F. Supp. 138, 140 (D. Conn. 1973) (Congress did not intend
Courts in other jurisdictions that have statutes modeled after
custody credits should be applied in a mathematically linear fashion. The total time in custody should be credited on a day-for-day basis against the total days imposed in the consecutive sentences. For ease in calculation and clarity in respect to subsequent exercise of court discretion, the credits should be applied to the sentence that is first imposed.
Id. at 539 (emphasis added); see Endell v. Johnson, 738 P.2d 769, 771 (Alaska Ct. App. 1987) (construing “in connection with” statute, court refused to award double credit toward new sentence imposed consecutively to underlying sentence reinstated after probation violation); State v. Whitney, 768 P.2d 638, 649 (Ariz. 1989) (defendant not entitled to double credit against consecutively imposed sentences for parole violation and new offense); Mills v. Commonwealth, 723 S.W.2d 859, 860-61 (Ky. Ct. App. 1986) (accord). But see State v. Ramzy, 649 P.2d 504, 506 (N.M. Ct. App. 1982) (defendant who failed to make bail on new offense committed while he was free on appeal bond was entitled to credit toward new sentence for jail time spent while serving term for underlying sentence following revocation of appeal bond).
Some courts have gone even further, holding that once either the underlying sentence or the sentence for the new offense is imposed, no double credit is allowed for jail time served before imposition of the second sentence, even if the sentences are imposed concurrently. See Shelvy v. Whitfield, 718 F.2d 441, 446 (D.C. Cir. 1983) (defendant “is entitled to presentence credit only for days of incarceration during which he was not serving any sentence“); Ali v. District of Columbia, 612 A.2d 228, 229-30 (D.C. 1992) (it is generally accepted that preconviction credit on new charge ceases at time parole violation warrant is executed; because defendant received credit against underlying conviction, he was not entitled to credit against new
In our view, this position is unacceptable for the same reasons that double credit is inappropriate when sentences are imposed consecutively ---- it is illogical and unfair, and it would undermine the trial court‘s control over sentencing. See State v. Carson, 393 N.W.2d 382, 384 (Minn. Ct. App. 1986) (trial court imposed concurrent sentences for probation violation and for new offense that led to revocation of probation; denial of credit against either sentence for time spent in jail before imposition of second sentence would impose de facto consecutive sentence to extent that there was any delay in revoking probation and executing underlying sentence). If we were to adopt the position taken in Shelvy and Ali, the length of a defendant‘s ultimate sentence would turn on when the underlying and new sentences were imposed, which would be subject to the parties’ manipulation and to irrelevant factors such as whether the defendant pled guilty or demanded a jury trial. See State v. Dulski, 363 N.W.2d 307, 310 (Minn. 1985).
Accordingly, we hold that when a defendant is incarcerated based on conduct that leads both to revocation of probation or parole and to conviction on new charges, the time spent in jail before the second sentence is imposed should be credited toward only the first sentence if the second sentence is imposed consecutively, but toward both sentences if the second sentence is imposed concurrently. See id. at 309 (in determining whether to give double credit for period of incarceration between imposition of sentences, “crucial factor” is whether sentences are to be served concurrently or consecutively); see also Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986) (accord). We realize that this holding will probably not be the final word from this Court in a complex area of the law that often requires case-by-case analysis, but it is a fair and straightforward benchmark that gives the trial court, rather than the parties, control over sentencing.
Although both Perry and Percy are factually distinguishable from the present case, a literal reading of
Nor does the plain meaning of
To bolster his argument, defendant relies primarily on two Vermont cases, In re Lampman, 135 Vt. 226, 373 A.2d 547 (1977), and In re Zera, 137 Vt. 421, 406 A.2d 396 (1979). Although Lampman contains language favorable to defendant‘s position, it involved concurrently imposed sentences; therefore, it is distinguishable from the present case, and its result is consistent with our holding today. Further, both Lampman and Zera were escape cases in which this Court relied on stipulations from the parties stating that confinement was more restrictive than it had been before the defendants escaped.
In Zera, the defendant refused to accept release on personal recognizance after being arrested for failing to return from furlough. He pled guilty to escape and, four months after his arrest, was sentenced to a term to be served consecutively with the sentence he had been serving. The trial court refused to give the defendant credit for three months he spent in jail between his arraignment on the escape charge and his commitment for observation to evaluate his sanity. This Court reversed that decision based on the plain meaning of
The parties have stipulated that, as a matter of policy in Vermont, inmates posing a threat to the security of the institution are confined in areas separate and apart from the regular programs of the institution; that such inmates are not eligible for furlough, work-release, passes, or outside supervised work crews; and further that, subsequent to the petitioner‘s nonacceptance of release on personal recognizance, this policy was applied to him. The fact that the petitioner was subjected to more restrictive conditions of confinement following his arraignment on the escape charge provides additional support for our holding that the petitioner‘s incarceration was “in connection with the offense charged” within the meaning of
13 V.S.A. § 7031(b) . This refutes the conclusion of the superior court that the time the petitioner spent in custody was “for other reasons.” The record clearly reveals that the more restrictive conditionswere imposed because the petitioner had escaped, the very incident for which he was arraigned, and in connection with which personal recognizance was offered and refused. On this record, the petitioner‘s custody was in connection with the offense charged.
Zera, 137 Vt. at 424-25, 406 A.2d at 398 (emphasis added).
In the present case, in contrast, defendant made no showing whatsoever that his failure to post bail on the assault charge resulted in more restrictive confinement than what would have been imposed upon revocation of his parole had he made bail on the assault charge. Undoubtedly, defendant did not post bail simply because it would not have resulted in his being freed from custody. We decline to reward those defendants who do not post bail in such circumstances by granting them double credit for jail time between imposition of the first and second sentence. See Endell, 738 P.2d at 771 (rejecting double credit to probationer under similar circumstances, court noted that those who posted bail but continued to be held on another charge would actually be penalized for doing so).
On appeal, defendant can point out only that his status as a detainee pending prosecution required permission of the court and the prosecuting attorney before he could be allowed access to furlough and work-release programs. See
Affirmed.
Allen, C.J., dissenting. I dissent from today‘s holding because I believe the plain meaning of
I do not agree with the majority‘s assertion that its holding is consistent with our prior cases. We have applied the plain meaning of
To justify abandoning our precedent, the majority imagines a “logical extreme” in which a defendant receives quadruple credit for sentences to be consecutively served. Ironically, this Court has already entertained such a hypothetical in State v. Percy, 158 Vt. 410, 421, 612 A.2d 1119, 1127 (1992). In Percy, we eschewed an over-literal interpretation and instead applied the plain meaning and achieved a principled result consistent with the statute‘s legislative purpose. Specifically, we rejected Percy‘s argument that he receive credit for forty years rather than ten years, because the purpose of
The majority‘s reliance on Zera‘s dictum as additional justification to stray from the plain meaning is equally unpersuasive. Zera‘s discussion of stricter release conditions supported the Court‘s application of the plain meaning by pointing out that the more restrictive conditions demonstrated that Zera was serving time in connection with the escape charge. In re Zera, 137 Vt. 421, 424-25, 406 A.2d 396, 398 (1979).
Under the revised construction, if the conduct that leads to revocation of parole also leads to a conviction on new charges, defendant is allowed credit only toward the paroled sentence. The controlling inquiry is now whether parole is ultimately revoked, not whether defendant is detained because he could not afford bail. “‘If [the legislature] had wished to exclude from the operation of the statutes those who would not be released from custody even if they posted bail that exception could easily have been spelled out.‘” In re Lampman, 135 Vt. at 229, 373 A.2d at 548 (quoting Mancinone v. Warden, 294 A.2d 564, 568 (Conn. 1972)).
The statute plainly requires the court to give presentence credit for “any days spent in custody in connection with the offense for which sentence was imposed.”
Because defendant‘s pretrial detention was imposed in connection with the new charges, the trial court decision denying defendant credit for time spent in jail in connection with the assault charge should be reversed.