Appeal from Superior Court, Bennington Unit, Criminal
Division William D. Cohen, J.
Tartter, Deputy State's Attorney, Montpelier, for
Matthew Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Defendant Randy Hughs appeals his sentence to serve two
and one half to five years for his conviction of sexual
assault of a minor. He contends that the trial court erred
by: (1) considering his decision to exercise his right to a
trial in determining his sentence; (2) disregarding evidence
that treatment in the community would be appropriate; and (3)
failing to consider defendant's youth as a mitigating
factor. We affirm.
2. On August 25, 2016, eighteen-year-old defendant had sexual
intercourse with a fourteen-year-old minor, C.H., with whom
he had been texting for the previous month and a half. The
next day, defendant arranged to have a friend bring a
"morning after" pill to C.H. When C.H.'s mother
learned of the incident, she brought C.H. to the police
station to file a complaint. At trial on November 4, 2016, a
jury found defendant guilty of sexual assault of a minor
under 13 V.S.A. § 3252(c).
3. At the sentencing hearing, a clinical psychologist
testified for defendant. He noted that defendant scored a
moderate-high rating under the actuarial risk-assessment
measures taken by the Department of Corrections. The
testifying psychologist observed that these actuarial tools
have an approximately seventy-two to seventy-five percent
success rate in predicting recidivism, which is significantly
better than predictions made by clinicians alone. He further
noted, however, that young individuals almost always score at
least a moderate-low rating under this assessment scheme
because it measures factors that are unlikely to be present
for younger individuals, such as whether they have lived with
a lover for at least two years, adding to their risk score.
4. The testifying psychologist discussed the importance of
analyzing various "dynamic changeable factors,"
such as "protective factors" and "risk
factors," to improve an actuarial study's predictive
power for a particular individual. The testifying
psychologist noted that a psycho-sexual evaluation conducted
by another psychologist had found four such "protective
factors" that decreased the defendant's risk level,
including appropriate sexual interests and the absence of
physical or mental barriers to treatment. However, the
testifying psychologist could not say that defendant had no
barriers to successful community treatment and noted that the
evaluating psychologist had also found some risk factors
during the assessment of defendant. Among these factors was
"poor [sexual] risk management," though the
testifying psychologist observed that the sexual risk
management measure is significantly affected simply because
defendant is not yet in treatment. He also acknowledged, as a
second risk factor, that defendant had initially gone
"through a period of not doing well under community
supervision," with the qualification that defendant
subsequently had been very cooperative during his time as an
5. The testifying psychologist also discussed several other
considerations, including defendant's
culpability-minimizing comments made during the prior
assessment with the evaluating psychologist. Though
defendant's mindset was "an issue," the
testifying psychologist described it as "a pretty easy
one in treatment." He also found defendant's initial
denials to be "a treatment issue" that was likely
resolvable. However, the testifying psychologist stated that
he "wouldn't minimize" the fact that defendant
had gone through four sessions with a professional to work on
impulse-control and boundary issues as a thirteen-year-old
only to make a bad decision five years later.
6. The testifying psychologist expressed concern that
incarcerating a young defendant with older, more predatory,
sex offenders could make defendant worse over the course of
his incarceration. He agreed with the presentence
investigation (PSI) that defendant would be "appropriate
for community-based treatment" and "seems to be
amenable to treatment." He discussed resources and
safeguards available for treatment in the community. The
testifying psychologist agreed that defendant would have
access to a similar treatment program while incarcerated.
7. After the testifying psychologist's testimony, a
victim's advocate read a statement prepared by C.H.
describing the mental, physical, and emotional effects she
had suffered because of the incident, such as bad grades at
school, panic attacks, feeling unsafe at home, alienation
from her parents and peers, and rumors at school.
8. After the conclusion of the testimony, the trial court
sentenced defendant to serve two and one half to five years
and outlined its reasoning from the bench. The court noted
that "punishment is an essential component of this case
for the purposes of the effect that it had, that it was
easily avoidable, that it was unnecessary, it was impulsive .
. . [defendant] was well aware of the fact of her age, and he
had just previously turned eighteen."
9. The court considered the "need to accommodate the
Department [of Corrections] in risk-reduction programming
that's through the Department's programming regarding
his risk assessments as outlined by [the testifying
psychologist] and included in the reports." In addition
to providing deterrence to the general public, the court
noted that the sentence "gives appropriate
deterrence" to defendant specifically, before observing
that "[t]here's a rehabilitative program"
developed by the Department of Corrections to help defendant