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State v. Goewey

Supreme Court of Vermont

December 11, 2015

State of Vermont
Peter A. Goewey

Page 1221

          On Appeal from Superior Court, Bennington Unit, Criminal Division. Nancy Corsones, J.


          William H. Sorrell, Attorney General, and Sarah Katz and John Treadwell, Assistant Attorneys General, Montpelier, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

         Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


Page 1222

          Eaton, J.

          [¶1] On July 15, 2013, defendant Peter Goewey, then age sixty-one, pleaded guilty to one count of aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(9) for repeatedly performing oral sex on a young man. At a contested sentencing hearing in December 2013, defendant was sentenced to twenty years to life. Defendant challenges this sentencing decision, alleging various constitutional and procedural errors. For the reasons stated herein, we affirm.

          [¶2] Defendant and the State entered a plea agreement, in exchange for which the charge was amended and other charges against defendant were dismissed. The plea agreement contemplated a contested sentencing hearing allowing the State to argue for a sentence of up to forty years to life to serve and defendant to argue for a sentence of ten years to life, split to serve five years.

          [¶3] Section 3271(b) of Title 13 requires an indeterminate life sentence following a conviction for aggravated sexual assault, such as was the case here, and thus the maximum sentence was necessarily required to be life. Pursuant to 13 V.S.A. § 3253, the trial court was required to impose an unsuspended term to serve of at least ten years, but could reduce that term to not less than five years if certain findings were made. There was no agreement whether the trial court was bound to impose a sentence to serve with no portion suspended on probation -- that is, a straight sentence -- or whether it could impose a suspended sentence with a specified portion to serve -- that is, a split sentence.

          [¶4] At the sentencing hearing, the State provided testimony from the probation officer who prepared the presentence investigation report (PSI). Based upon an assessment done in the course of preparing the PSI, and due to a prior conviction, the probation officer referred defendant's case to the Department of Corrections (DOC) high-risk sex offender committee. The DOC high-risk committee does not make a determination of risk designation until after the sentence has been imposed. Accordingly, as of the date of sentencing, there was no final determination whether defendant would be designated as high-risk by the DOC, nor any indication by the probation officer whether a high-risk designation was likely or not.

          [¶5] The designation as a high-risk sex offender subjects an offender to 28 V.S.A. § 204b, which provides:

A person who is sentenced to an incarcerative sentence for a violation of any of the offenses listed in subsection 204a(a) of this title and who is designated by the Department of Corrections as high-risk pursuant to 13 V.S.A. § 5411b while serving his or her sentence shall not be eligible for parole, furlough, or any other type of early release until the expiration of 70 percent of his or her maximum sentence.

          [¶6] Defendant's conviction was for a listed offense under § 204a(a): 13 V.S.A. § 3253(a)(9).[1]

          [¶7] Prior to sentencing the trial court was made aware that the " 70% rule" in § 204b would apply if defendant was designated as high-risk after sentencing and if he was given a straight sentence to serve

Page 1223

rather than a split sentence with a fixed period to be served and the balance of the sentence suspended with defendant placed on probation. At the sentencing hearing, the probation officer indicated that he was uncertain how the DOC applied the 70% rule when the maximum sentence is a life term. Despite this uncertainty, the trial court proceeded with sentencing, and regardless of the significant potential difference in the time defendant would likely be required to serve between a straight and a split sentence were he to be designated high-risk, the trial court made no comment about why it had rejected defendant's repeated requests for a split sentence when imposing the straight sentence of twenty years to life.[2]

          [¶8] During the imposition of sentence, the trial court referred to the victim as being " repeatedly sodomized" by defendant. The prosecutor attempted to clarify that the charges against defendant involved oral sex, but the trial court indicated it was relying on the Webster's dictionary definition of sodomy, which included oral sex. In relying on this term, the trial court did not make reference to the nature of the conduct as between members of the same sex. Defendant's attorney made no objection to the trial court's characterization of defendant's assaults upon the victim as constituting sodomy.

          [¶9] Defendant also offered in mitigation of a long jail sentence his physical infirmities, including diabetes, a heart condition, and back and neck problems. In determining that the medical conditions would not be given much weight in mitigation, the judge noted that she had recently considered medical conditions as strong mitigating factors with another defendant, who had already violated her probation.

          [¶10] Defendant raises numerous claims of error concerning the trial court's imposition of the sentence: (1) that the trial court relied on prejudicial information when considering defendant's sexual assaults as sodomy; (2) that the 70% rule is a violation of separation of powers, constitutes cruel and unusual punishment, and allows the DOC to enhance a sentence on facts not found by the jury; (3) that the trial court erred in not considering the impact of the 70% rule in this case; and (4) that the judge's comments constituted improper reliance on the conduct of another person in determining defendant's sentence.

          [¶11] This Court engages in limited review of sentencing matters and will defer to the trial court's judgment absent an abuse of discretion. State v. Daley, 2006 VT 5, ¶ 6, 179 Vt. 589, 892 A.2d 244 (mem.); State v. Bushway, 146 Vt. 405, 408, 505 A.2d 660, 662 (1985). For this reason, the Court will uphold an imposed sentence as long as it is not based on improper or prejudicial information and is within the statutory range, Daley, 179 Vt. 589, 2006 VT 5, ¶ 6, 892 A.2d 244, which requires consideration of statutory factors, including " 'the nature and circumstances of the crime, the history and character of the defendant, the need for treatment, and the risk to self, others, and the community at large presented by the defendant.' " State v. Lumumba, 2014 VT 85, ¶ 23, 197 Vt. 315, 104 A.3d 627 (quoting 13 V.S.A. § 7030(a)).

          [¶12] The parties do not dispute that the imposed sentence is within the statutory penalty provided for the offense.

          [¶13] We turn first to the claim that the sentencing judge relied on prejudicial

Page 1224

information in imposing sentence by referring to the victim as having been " repeatedly sodomized" by the defendant. Although not objected to by defendant and raised for the first time on appeal, defendant argues that the trial court's characterization of his criminal acts of oral sex with a member of the same sex as " sodomy" is an expression of a religious view or moral judgment by the judge ...

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