Appeal from Superior Court, Orleans Unit, Criminal Division
Robert R. Bent, J.
Tartter, Deputy State's Attorney, Montpelier, for
Matthew Valerio, Defender General, and Dawn Seibert,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Defendant Jeffrey Ray appeals his sentence of twenty years
to life for second-degree murder, which was imposed after a
contested sentencing hearing following a plea agreement
reducing the charge from first-degree murder. On appeal, he
argues that the sentencing court erred in finding the victim,
Richard Vreeland, to be "particularly vulnerable"
based solely on his being unarmed and within shooting range
of defendant. The State contends that any error in sentencing
did not rise to the level of plain error. We affirm.
2. Evidence presented to the court at the three-day
sentencing hearing established the following. Defendant was
previously married for eighteen years to the victim's
widow, Brenda Vreeland. She filed for divorce from defendant,
and shortly thereafter, met the victim. The two began a
relationship and were married. They spent part of their
marriage in defendant's former marital home, and the
victim became stepfather to defendant's and the
victim's wife's children. Defendant often claimed
that the victim had taken his family and his land from him,
and he held a grudge against the victim for many years.
3. On May 25, 2015, defendant was living in a camper on his
daughter's property in Brownington, a short distance from
his former home where the victim and the victim's wife
were then residing. Defendant had been drinking heavily the
day before and continued to do so upon waking up that
morning. He wrote a letter threatening to press charges
against the victim over a dispute involving a quitclaim deed,
and he drove to the victim's property to deliver it. Upon
arriving, he put the letter in the victim's mailbox and,
instead of backing out of the driveway, drove his truck in a
loop around the victim's lawn before leaving to return to
his daughter's house. The victim had been watching from
inside the house and immediately got into his own truck to
follow defendant, bringing with him a baseball bat. At the
victim's wife's urging, defendant's son
accompanied the victim.
4. Defendant was still sitting in his truck in his
daughter's driveway when the victim pulled up behind him.
The victim immediately exited his vehicle and began walking
toward defendant, holding only a lit cigarette in his
hand-the baseball bat remained in his vehicle. At that point,
defendant grabbed a handgun that was sitting in the
passenger's seat of his truck and fired a single shot at
the victim, hitting him from a distance of about twenty feet.
The victim fell to the ground and died within minutes. At the
time of the shooting, defendant was heavily intoxicated.
5. Defendant pleaded guilty to second-degree murder. Under
the terms of his plea agreement, the State was capped at
arguing for a sentence of twenty-five years to life, with the
defense free to argue for twenty years to life, all suspended
except for ten years, with lifetime probation supervision. At
the conclusion of the sentencing hearing, the court sentenced
defendant to twenty years to life. In its explanation, the
court cited 13 V.S.A. § 2303(c), which states that the
presumptive punishment for second-degree murder is twenty
years to life, but that a court may impose a sentence above
or below that length of time based on the jury's weighing
of aggravating and mitigating factors. The court
specifically mentioned four aggravating factors that it
considered in arriving at defendant's sentence: his use
of a firearm when it was prohibited by virtue of a
relief-from-abuse (RFA) order; his contact and abuse of the
victim and his family, also in violation of the RFA; the high
degree of hatred and premeditation associated with the crime;
and the victim's "particular vulnerability." It
also cited one mitigating factor, which it deemed
"substantial": defendant's alcohol abuse. In
addition, the court referenced the various common-law
purposes of sentencing-punishment, rehabilitation, general
and specific deterrence, and incapacitation-to justify its
6. Defendant contends that the trial court erred in holding
that the victim was "particularly vulnerable," that
this error prejudiced his sentence, and that the sentence
must be vacated and the case remanded for a new sentencing.
We generally review sentencing decisions for an abuse of
discretion. State v. Lumumba, 2014 VT 85, ¶ 22,
197 Vt. 315, 104 A.3d 627. However, if the appellant fails to
object to his or her sentence at the time of sentencing, as
in this case, the Court will vacate that sentence only upon a
finding of plain error. State v. Koons, 2011 VT 22,
¶ 11, 189 Vt. 285, 20 A.3d 662.  Plain error requires a
showing that (1) there was error, (2) the error is obvious,
(3) the error affects the substantial rights of and results
in prejudice to the defendant, and (4) the error
"seriously affects the fairness, integrity or public
reputation of judicial proceedings." Id.
(quotation omitted). "This is a very high bar-we find
plain error only in rare and extraordinary
circumstances." State v. Herrick, 2011 VT 94,
¶ 18, 190 Vt. 292, 30 A.3d 1285. Here, even assuming
there was error, that error did not result in prejudice to
the defendant. Thus, there was no plain error.
7. Vermont courts have broad discretion in sentencing.
State v. Ingerson, 2004 VT 36, ¶ 10, 176 Vt.
428, 852 A.2d 567. Nonetheless, under this State's
statutes and common law, there are factors sentencing courts
must consider in determining a sentence. For instance, under
13 V.S.A. § 7030(a), the sentencing court must take into
account "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" in determining the
sentence to impose. Courts may also consider factors in
addition to those explicitly listed in § 7030(a),
including but not limited to "[t]he defendant's
background, . . . family, past conduct and . . .
propensities." Sullivan, 2018 VT 112, ¶ 7;
see also State v. Harrington, No. 2017-116, 2018 WL
374641, at *2 (Vt. Jan. 8, 2018) (unpub. mem.),
[https://perma.cc/ 3F53-5YCS] (noting trial court's
balancing of aggravating and mitigating factors, including
victim's vulnerability, during sentencing). Finally, in
crafting a sentence, courts should consider common-law
factors such as the need for punishment, prevention,
rehabilitation, incapacitation, and general and specific
deterrence, although they are not required to address each
factor explicitly. See Sullivan, 2018 VT 112, ¶
8 ("The court must ground its [sentencing] decision on
legitimate goals of criminal justice, including 
punishment, prevention, rehabilitation, and deterrence."
(quotation omitted)); State v. Webster, 2017 VT 98,
¶ 46, 206 Vt. 178, 179 A.3d 149 (noting trial
court's focus on common-law sentencing factors such as
"general deterrence, retribution, incapacitation, and
punishment"); State v. Allen, 2010 VT 47,
¶ 14, 188 Vt. 559, 1 A.3d 1003 (mem.) ("While the
court should ground its decision on legitimate goals of
criminal justice, including such purposes as punishment,
prevention, rehabilitation, and deterrence, the court is not
obligated to explicitly address each factor." (citation
8. Defendant does not claim on appeal that the sentencing
court failed to consider any of the required statutory or
common-law factors, and the record does not support such a
claim. His only contention is that the court's
consideration of particular vulnerability was plain error.
This Court has never defined "particular vulnerability,
" and we decline to do so here. Rather, we
assume without deciding that the victim was not particularly
vulnerable and that the sentencing court therefore erred in
labeling him as such. Applying the plain-error standard of
review, we then conclude that, even had such an error
occurred, as required under the first prong of that test, and
even had it been obvious, as required under the second prong,
any error did not affect defendant's substantial rights
or result in prejudice to him, and thus he cannot satisfy the
third prong of the test. See Koons, 2011 VT 22,
¶ 11 (listing four prongs of plain-error test).
9. As we have noted, where the issue was not objected to
below, this Court reviews a trial court's improper
consideration of an aggravating factor in sentencing under
the plain-error standard. However, our consideration of
whether such an error substantially affected defendant's
rights in cases where we have applied the abuse-of-discretion
standard and harmless-error doctrine aids our analysis here.
This Court's discussions of error in State v.