On Appeal from Superior Court, Franklin Unit, Criminal Division, Robert A. Mello, J.
James A. Hughes, Franklin County State’s Attorney, St. Albans, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant Joseph Kenvin appeals from a sentencing reconsideration decision by the superior court, reducing the time to serve on his conviction for careless and negligent driving from eleven-to-twelve months to nine-to-twelve months. Defendant contends the trial court erred in: (1) finding him “very negligent” in causing the death of a collision victim, despite the jury’s acquittal on the underlying charge of grossly negligent operation, death resulting, and (2) ruling that defendant was not entitled to credit for time served while on restrictive conditions of pretrial release. We affirm defendant’s sentence but remand to the trial court to provide credit to defendant for the period between March 10, 2010 and March 22, 2010 during which defendant was subject to a twenty-four hour curfew.
¶ 2. The facts are as follows. This case arises out of a September 3, 2008 motor vehicle collision in which defendant’s pickup truck collided with a motorcycle. The motorcyclist died from injuries sustained in the accident. The State charged defendant with grossly negligent operation, death resulting, under 23 V.S.A. § 1091(b). Following arraignment, the court released defendant on conditions of release.
¶ 3. In February 2010, a jury acquitted defendant of grossly negligent operation, death resulting, and convicted him of the lesser-included offense of negligent operation, 23 V.S.A. § 1091(a). The court held a sentencing hearing on March 10, 2010. At the hearing, the court found that defendant caused the death of the motorcyclist:
This death was caused because you were a lazy driver. Instead of going up and making a turn where you should have made a turn, you took—you cut your turn, and you made a lazy turn. There’s no question about the fact that you [bear] the sole responsibility for this. This is [as] serious... careless and negligent driving as you can get.
The court sentenced defendant to “the maximum [it] could give [defendant], ” eleven-to-twelve months to serve. The court also signed two restitution orders. The first order was for the decedent motorcyclist’s wife to cover expenses associated with family travel to the funeral, storage costs for the decedent’s motorcycle, and a radiology bill from the decedent’s hospitalization not covered by insurance. The second order was for the victim’s compensation program.
¶ 4. Defendant requested a stay of execution pending an appeal to this Court. The superior court granted the stay and imposed the conditions of release in place prior to defendant’s trial. The court also added a twenty-four-hour curfew, requiring defendant “to stay in his home at all times. No exceptions.” The court told defendant “I consider you to be a dangerous person. You have three times been convicted of a dangerous activity with respect to a motor vehicle on the highway. You’ve killed a person. As far as I’m concerned, you’re a menace to society.”
¶ 5. The next day, defendant filed a motion requesting the court to amend his conditions of release. Defendant sought several modifications, and specifically requested the ability to travel to an area where cell phone service was available because the only household income at that time was defendant’s weekly unemployment benefits check. Defendant’s motion explained that in order to continue receiving unemployment compensation, he needed to maintain a work search and to have weekly internet contact with the unemployment division. The motion identified the library where defendant typically used the internet for this contact as well as the establishment where defendant cashed his unemployment compensation checks, though the motion did not request permission for trips to these locations. The court granted the motion on March 22, 2010, amending the conditions of release to allow defendant to travel to a location where cell phone service was available, to appear at meetings at his attorney’s office, to attend necessary medical appointments, and to walk his dog on two, one-hour walks per day beginning and ending at his residence. The conditions did not specify a person responsible for the custody of defendant and did not dictate where he must reside. It is undisputed that defendant complied with these conditions.
¶ 6. On April 7, 2010, defendant filed a notice of appeal and election not to commence service of his sentence. In his direct appeal, defendant challenged the trial court’s restitution orders as well as his sentence of eleven-to-twelve months to serve. State v. Kenvin, 2011 VT 123, ¶¶ 6, 18, 191 Vt. 30, 38 A.3d 26. The appeal challenged the sentence, arguing only that a sentence with a gap of thirty days between the minimum and maximum term was a fixed sentence in violation of 13 V.S.A. § 7031(a). Defendant did not challenge the sentence on the basis that the sentencing judge grounded the sentence provision on the finding that defendant caused the death of the victim. While the appeal was pending, defendant filed a motion on March 2, 2011, to further amend his conditions of release for purposes of “work search and employment, ” in order to “to seek work, and go to and from work once employment is secured.” The court granted the motion on March 22, 2011, and altered defendant’s conditions to allow him to look for work from 8 a.m. until noon, and at other times by scheduled appointment.
¶ 7. Defendant filed a motion to again amend his conditions of release on October 31, 2011, requesting permission “to drive for work search and work purposes, as long as he possesses a valid driver’s license.” Before the court disposed of the motion, on November 4, 2011, this Court decided defendant’s direct appeal. We upheld defendant’s sentence of eleven-to-twelve months to serve. We reversed and remanded the restitution orders, however, holding that Vermont’s restitution statute, 13 V.S.A. § 7043, did not authorize restitution for the family’s travel or the costs of motorcycle storage, but it did cover the decedent’s hospital bill. Kenvin, 2011 VT 123, ¶ 11. As to the ...