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State v. Sullivan

Supreme Court of Vermont

October 19, 2018

State of Vermont
Christopher P. Sullivan

          On Appeal from Superior Court, Rutland Unit, Criminal Division Theresa S. DiMauro, J.

          David Tartter, Special Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.) and Morris, Supr. J. (Ret.), Specially Assigned

          REIBER, C.J.

         ¶ 1. Defendant requests that the Court vacate his sentence and remand for resentencing with a different judge. This is defendant's second appeal following his convictions for operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting and for leaving the scene of a fatal accident. We affirm.

         ¶ 2. In the first appeal, State v. Sullivan, 2017 VT 24, ¶¶ 2-4, 204 Vt. 328, 167 A.3d 876, we summarized the following facts:

On April 10, 2013, defendant consumed six or seven alcoholic beverages between the hours of five and seven forty-five in the evening. At seven forty-five, defendant drove south on Strongs Avenue in Rutland at a speed of between twenty-two and thirty miles per hour. It was dusk, and a light rain was falling. Also at this time, the victim, a seventy-one-year-old woman wearing a cream-colored coat and walking with the assistance of two canes, began crossing Strongs Avenue with a friend from east to west in front of the Palms Restaurant, having looked in both directions before starting across the street. The victim walked at an estimated pace of between one-and-one-half-to-three feet per second. She was not in a crosswalk and defendant's car came upon her before she was able to cross the road. Just before the car struck her, the victim's friend called out in warning and the victim turned and raised both of her canes. Without braking or swerving, defendant's car struck the victim in the travelled portion of Strongs Avenue. The victim was thrown onto the hood of defendant's vehicle and into the windshield before landing in the street. Defendant continued driving without slowing down. He later told police that he had no idea who or what he hit, that he panicked and was unsure what to do, and that he continued driving to the Hannaford's parking lot. When defendant got out of his vehicle he saw damage to the hood and a shattered windshield. His rear-view mirror was detached, and there were shards of glass on the passenger seat.
From the parking lot, defendant called his law partner, who informed him that an ambulance had arrived at the scene in front of the Palms Restaurant. In a subsequent phone call, defendant's partner informed him that the victim had been pronounced dead at the hospital as a result of blunt-force trauma to her torso. Defendant spoke to his law partner again later that night, as well as to defense counsel. He made no effort to contact the police that night. Defendant had planned to pick up his son, but instead called his son from the Hannaford's parking lot and told him, untruthfully, that he had been delayed by a work obligation.
The next day defendant went to the police station with his attorney to give a statement. He told police of his activities the preceding night, including the amount and time of his alcohol consumption. He also told police that he had been driving thirty miles per hour and did not see the victim in the street before the accident.

         ¶ 3. The State charged defendant with DUI with death resulting, in violation of 23 V.S.A. § 1201(a)(2) and § 1210(f)(1), which prescribes a maximum $10, 000 fine and/or imprisonment for a minimum term of one year and a maximum of fifteen years. Id. § 1210(f)(1). The State also charged defendant with leaving the scene of a fatal accident, in violation of 23 V.S.A. § 1128(a) and (c). This crime carries a mandatory minimum term of imprisonment of one year and a maximum of fifteen years and/or a $3, 000 fine. Id. § 1128(c).

         ¶ 4. A jury found defendant guilty of both charges. The trial judge sentenced defendant to two concurrent four- to ten-year terms. Defendant appealed. Sullivan, 2017 VT 24, ¶ 1. We affirmed defendant's convictions but remanded for resentencing. Id. We held the trial court had "abused its discretion by not continuing the sentencing hearing to allow defendant to present the testimony of his expert witness." Id. On remand, the same trial judge held a resentencing hearing in August 2017. After considering evidence from the first sentencing hearing and additional evidence, the trial judge reimposed two concurrent sentences of four to ten years, with credit for time served.

         ¶ 5. Defendant's core challenge on appeal is that the trial court did not have discretion to impose that sentence. He bases his challenge on two general arguments. First, defendant argues that the record does not support the sentence. More specifically, defendant contends (a) that the court did not have discretion to impose a minimum sentence above the statutory mandatory minimum absent a showing of aggravating factors; (b) to the extent the court's findings support aggravating factors, those findings are incorrect and insufficient to support the sentence; and (c) the court abused its discretion in dismissing ...

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