On Appeal from Superior Court, Chittenden Unit, Criminal Division May Term, 2013, Brian J. Grearson, J.
William H. Sorrell, Attorney General, and David Tartter and John Treadwell, Assistant Attorneys General, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Seth Lipschutz, Prisoners’ Rights Office, Montpelier, and Brian LeClair, Pro Se, St. Johnsbury, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant appeals the superior court’s denial of his motion to modify his sentence. He contends that the court erred in failing to award credit for time served. We reverse the superior court’s decision and grant defendant credit against the controlling burglary sentence for the time he spent in jail between arrest and sentencing on the later charges.
¶ 2. On March 24, 2010, defendant was arrested and charged in Docket Number 1098-3-10 Cncr with one count of burglary. Bail was set at $20, 000. Defendant was held for lack of bail from March 24, 2010 until December 30, 2010, when bail was reduced to zero and he was released subject to several conditions of release, including that he follow all conditions set by the Chittenden County Adult Drug Treatment Court (ADTC), to which he had been referred on December 20, 2010. On February 10, 2011, pursuant to the parties’ plea agreement, the court accepted defendant’s guilty plea to the burglary charge with the understanding that if defendant successfully completed ADTC, he would be given a sentence of two-to-five years, all suspended with immediate discharge from probation, but if he was terminated from ADTC, the State could seek a sentence of five-to-fifteen years to serve, with defendant free to argue for a lesser sentence.
¶ 3. On April 2, 2012, while still participating in ADTC, defendant was charged in Docket Number 1129-4-12 Cncr with first-degree unlawful restraint, aggravated operation of a vehicle without the owner’s consent, reckless or grossly negligent driving, burglary, and unlawful trespass. Bail was set at $50, 000 on the new charges, but was not reset for the 2010 burglary charge. Defendant was held for lack of bail until September 18, 2012, when he was sentenced on the new charges and resentenced on the burglary charge.
¶ 4. As a result of defendant’s incarceration, his participation in ADTC ceased. In a motion dated May 1, 2012 but not filed with the superior court until August 1, 2012, the State sought defendant’s termination from ADTC. On August 10, 2012, the court terminated defendant’s enrollment in ADTC, triggering sentencing on the predicate burglary offense. On September 18, 2012, as part of a global resolution of the charges he faced, defendant was sentenced to serve three-to-five years for the 2010 burglary offense, with credit for time served, including time spent in residential treatment and stemming from ADTC sanctions.
¶ 5. That same day, pursuant to the parties’ plea agreement, defendant pled guilty to three of the six 2012 charges. Defendant received a sentence of two-to-five years for those offenses, to be served concurrently with the controlling three-to-five-year sentence for the 2010 burglary conviction, with credit for time served. The Department of Corrections gave defendant 287 days of credit against the sentence for the 2010 burglary conviction, representing, for the most part, the period he was held without bail on the 2010 burglary charge before being released in December 2010. The Department also gave defendant 170 days of credit against the sentence for the 2012 convictions for time served between March 30, 2012, when he was arrested and held on the 2012 charges, and September 18, 2012, the date of sentencing on all of his pending charges. The Department did not, however, give defendant the 170-day credit against the minimum on his controlling three-to-five-year sentence for the 2010 burglary conviction.
¶ 6. On November 7, 2012, defendant filed a motion to correct or modify his sentence, requesting credit against his controlling sentence for the 170 days he spent in custody between his arrest and sentencing on the 2012 charges. The superior court denied the motion, stating in a motion-reaction form that “defendant was not held [in 2012] for lack of bail on [the 2010 burglary offense] and therefore is not entitled to credit on that docket.” Defendant appeals, arguing that he should have received credit for the 170 days against each of the concurrent sentences. He contends that the court’s failure to grant him the 170-day credit on the controlling sentence resulted in a de facto consecutive sentence for that period of time, even though the court imposed the sentences to run concurrently. In response, the State contends that the court did not err in denying defendant’s motion to modify his sentence because defendant was held during the disputed 170-day period “in connection with” only the 2012 charges and not the 2010 burglary conviction. See 13 V.S.A. § 7031(b) (2012) (“The court shall give the person credit toward service of his or her sentence for any days spent in custody in connection with the offense for which the sentence was imposed.”). [*]
¶ 7. We have recently clarified that one of the ways a defendant can challenge the Department’s final calculation of credit for time served is through review of the sentence in the superior court “under Vermont Rule of Criminal Procedure 35(a) to determine whether the sentence is illegal under 13 V.S.A. § 7031(b) because it fails to give defendant credit for days spent in custody in connection with the crime(s) for which defendant is sentenced.” State v. Sommer, 2011 VT 59, ¶ 8, 190 Vt. 236, 27 A.3d 1059. When a defendant moves for sentence reconsideration based on an alleged illegality of the sentence, the issue is a question of law that we review de novo. State v. Oscarson, 2006 VT 30, ¶ 7, 179 Vt. 442, 898 A.2d 123.
¶ 8. In support of the superior court’s decision, the State argues that this case is governed by Marden v. Walton, 142 Vt. 204, 455 A.2d 321 (1982), in which the petitioner had been released on probation for an earlier crime when he was arrested and held for lack of bail on a subsequent offense. The petitioner’s probation was later revoked, but not until after his conviction for the second sentence, which was imposed consecutive to the first sentence. While acknowledging that § 7031 is a remedial statute that must be accorded a liberal construction protective of defendants’ rights, we held that the petitioner in that case was not entitled to credit for time served towards the first sentence for the period of time during which he was held for lack of bail on the second offense. In so holding, we reasoned as follows:
In the case before us the limiting condition of “connection” is not satisfied. The time spent in custody, for which credit is claimed by petitioner, has no relation to, nor any connection with, [the defendant’s earlier] offense or the resulting four-to-eight-year sentence. On the contrary, his incarceration [for the period in question], was based solely and entirely on the bail mittimus resulting from the [later] criminal offense for which he was subsequently convicted. He was ...