Appeal from Superior Court, Rutland Unit, Criminal Division
Theresa S. DiMauro, J.
Tartter, Special Assistant Attorney General, Montpelier, for
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
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 ...