On Appeal from Superior Court, Franklin Unit, Criminal Division Martin A. Maley, J.
James A. Hughes, Franklin County State’s Attorney, St. Albans, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Defendant challenges his sentence of imprisonment for convictions of aggravated assault and burglary, asserting that the trial court improperly relied on evidence from a co-defendant’s trial without providing defendant with notice and an opportunity to respond. We agree, and therefore vacate the sentence and remand for resentencing.
¶ 2. Defendant was charged with burglary and aggravated assault arising from an August 2012 incident in which he and a co-defendant, Timothy Lacross, entered a home in the Town of Enosburg, assaulted a resident, and stole prescription drugs. Defendant pled guilty to the charges in August 2013, and appeared for a contested sentencing hearing in February 2014. In addition to the burglary and assault, defendant was also appearing for sentencing on two unrelated convictions of grand larceny and simple assault.
¶ 3. At the start of the hearing, the trial court noted that it had received a presentence investigation report (PSI) and psychological evaluation of defendant, and determined that neither party had any objections to the information contained therein. Both victims of the break-in provided statements describing the incident and its effect on their lives, followed by a brief argument from the State’s Attorney in support of an aggregate sentence of twenty-five to forty-six years.
¶ 4. Defendant called three witnesses: the probation officer who prepared the PSI, the clinical psychologist who conducted the forensic evaluation, and a Ph.D. candidate who assisted in preparing the evaluation. On direct examination, the probation officer was asked about defendant’s ability to adapt to prison life, and more specifically whether there was “some concern that [defendant] historically has been a little bit of a follower of stronger personality types, anti-social personality types?” The officer responded that the risk of exposure to persons with anti-social personalities in prison was unavoidable, but expressed the view that defendant could benefit from programming while incarcerated.
¶ 5. The psychologist testified about defendant’s background, which included a history of abuse by his father and significant substance abuse from a young age. He also noted the “inherent risk” of prolonged exposure to negative influences in prison, but observed that defendant had thus far “done a good job of avoiding that by staying very busy.” The psychologist’s associate testified that defendant was a viable candidate for programming and open to treatment, but echoed the view that prolonged incarceration increased the risk of defendant’s falling prey to negative influences. Citing defendant’s troubled background, substance abuse, amenability to programming, and relative youth-he was twenty-two years old at the time of the hearing-defense counsel argued in support of a sentence of three to twelve years.
¶ 6. In explaining its sentencing decision, the trial court observed at the outset that it had presided at the trial of the co-defendant, Timothy Lacross, and that “obviously the Court heard the entire story involving the... home invasion.” While acknowledging the argument for leniency based on defendant’s age, addiction, and difficult upbringing, the court found that these factors were “overshadowed in this case by the sheer heinousness of this crime, ” its impact on the victims, and the need for a commensurate punishment. In this regard, the court emphasized that-although a joint endeavor-the crimes were instigated principally by defendant and were largely his responsibility. As the court explained:
One part of this equation that the Court wanted to talk a little bit [about] is the fact that I think [defendant] has sort of been seen as a follower. That was referenced somewhere. I don’t really see him as a follower. I see him more not necessarily as a leader... in the positive sense of the word, but more a manipulator and exploitive person.
And I’m referring to the case of Timothy Lacross in the home invasion. The Court believes that although Mr. Lacross was found guilty of the... burglary charge and the Court dismissed the other charge, the accessory for the assault... in that case because the Court didn’t find... there was really any evidence that Mr. Lacross knew that [defendant] was going to assault [the victim], the Court believes that [defendant] took advantage of Mr. Lacross, who has very limited cognitive ability, who does not have a significant criminal background, but has significant limitations. And [defendant] used Mr. Lacross to go with him and explained to him that it would be okay. That there wouldn’t... be anybody there. That there’d be drugs there. He took advantage of Mr. Lacross. That doesn’t make Mr. Lacross to be a victim or without some culpability, but certainly in... the scheme of things, [defendant] was the, quote/unquote, leader there and not... a follower.
¶ 7. The court concluded that, while the sentence advocated by the State might be appropriate for an older offender “who had less chance to rehabilitate, ” defendant’s age militated against it. At the same time, the court found that the sentence urged by defendant failed to account for the seriousness of the offense and the need for punishment, “which the Court looks at as more of a primary ...