NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2020 VT 68
No. 2019-097
State of Vermont Supreme Court
On Appeal from v. Superior Court, Rutland Unit, Criminal Division
Matthew S. Hinton March Term, 2020
Thomas A. Zonay, J.
Rosemary Kennedy, Rutland County State’s Attorney, and L. Raymond Sun, Deputy State’s Attorney, Rutland, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Sarah Star, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. COHEN, J. Defendant Matthew Hinton appeals the superior court’s sentence
following his guilty plea to escaping from furlough. Defendant argues that new legislation
decriminalizing the conduct should be applied retroactively to him. Separately, he maintains that
the court abused its discretion when it ordered the sentence to run consecutively to two other
sentences. We affirm.
¶ 2. In 2015, defendant was under the supervision of the Department of Corrections
(DOC) when he escaped from furlough and burglarized several homes in Addison County. He
was subsequently arrested and found in possession of a firearm. From these acts emerged three
sets of charges: In the superior court, the State charged defendant with one count of escape from furlough under 13 V.S.A. § 1501(b)(2) in the Rutland Criminal Division, and with three counts of
burglary in the Addison Criminal Division. In the U.S. District Court for the District of Vermont,
the United States charged him with being a felon in possession of a firearm.
¶ 3. In 2018, the Addison Criminal Division sentenced defendant to four to ten years’
imprisonment on the burglary charges. The same year, the U.S. District Court sentenced him to
seven years’ imprisonment and three years of supervised release, concurrent to the state sentence.
Defendant then pled guilty to the escape charge and, on March 7, 2019, the Rutland Criminal
Division entered a judgment of guilty and sentenced him to four to five years’ imprisonment,
consecutive to the Addison and federal sentences. Defendant timely appealed the Rutland
sentence.
¶ 4. Effective July 1, 2019, during the pendency of this appeal, the Legislature
decriminalized the conduct giving rise to defendant’s escape conviction. See 2019, No. 77, §§ 10,
26. The law now authorizes the DOC to issue an arrest warrant for a person who absconds from
certain types of furlough and provides that “[a] person for whom an arrest warrant is issued . . .
shall not earn credit toward service of his or her sentence for any days that the warrant is
outstanding.” Id. § 11 (codified as amended at 28 V.S.A. § 808e).
¶ 5. Defendant argues that the escape sentence should be vacated because the new
legislation, enacted while his case was on direct appeal, should be applied retroactively to him.
Alternatively, he contends that the sentence, imposed consecutively to the other two sentences,
must be vacated as an abuse of discretion. We reject both arguments in turn.
I. Retroactivity
¶ 6. We address the retroactivity argument for the first time on appeal because the new
legislation did not go into effect until after the filing of this appeal and accordingly defendant could
not have raised the issue before the trial court. See State v. Aubuchon, 2014 VT 12, ¶ 10, 195 Vt.
571, 90 A.3d 914.
2 ¶ 7. Defendant first relies on a line of cases holding that judicial decisions announcing
new constitutional rules apply retroactively to cases on direct review. See, e.g., State v. White,
2007 VT 113, ¶¶ 8-9, 182 Vt. 510, 944 A.2d 203; State v. Shattuck, 141 Vt. 523, 528-29, 450 A.2d
1122, 1124-25 (1982). Those cases are traceable to the broader common-law rule “that a change
in law will be given effect while a case is on direct review.” Shattuck, 141 Vt. at 529, 450 A.2d
at 1125 (quotation omitted). Defendant’s reliance on those authorities is misplaced.
¶ 8. We have explained that “[at] common law, the repeal of a criminal statute abated
all prosecutions which had not reached final disposition” and that “[t]o avoid such results,
legislatures frequently indicated an intention not to abate pending prosecutions by including in the
repealing statute a specific clause stating that prosecutions of offenses under the repealed statute
were not to be abated.” State v. Matthews, 131 Vt. 521, 523, 310 A.2d 17, 19 (1973). In the
nineteenth century, however, Vermont and other jurisdictions adopted “saving clauses”—statutes
that “save” from amendment or repeal, “all statutory rights and penalties created by a completed
set of factual circumstances.” Id. at 524, 310 A.2d at 20. Thus, it is settled that Vermont’s saving
statute, 1 V.S.A. § 214, was adopted to abandon the common-law rule of retroactivity for new
legislation. See State v. Petrucelli, 156 Vt. 382, 384, 592 A.2d 365, 366 (1991). Consequently,
the saving statute controls this case, not the common law or authorities governing the retroactivity
of judicial decisions.
¶ 9. In § 214, the Legislature declared:
The amendment or repeal of an act or statutory provision, except as provided in subsection (c) of this section, shall not . . . affect any violation of the act or provision amended or repealed, or any penalty or forfeiture incurred thereunder, prior to the effective date of the amendment or repeal . . . .
1 V.S.A. § 214(b)(3). Accordingly, the general rule is that statutory amendments or repeals only
apply prospectively. See also Aubuchon, 2014 VT 12, ¶ 16 (“Generally, statutes operate only
prospectively, while judicial decisions operate retrospectively.” (quotation omitted)); Petrucelli,
3 156 Vt. at 385, 592 A.2d at 366 (observing “well-established rule that new criminal legislation has
only prospective application”). As an exception to this general rule, § 214(c) provides that “[i]f
the penalty or punishment for any offense is reduced by the amendment of an act or statutory
provision, the same shall be imposed in accordance with the act or provision as amended unless
imposed prior to the date of the amendment.” 1 V.S.A. § 214(c). We have held that subsection
(c) is a narrow exception that applies only to a statutory amendment that reduces the penalty or
punishment for an offense, see State v. Lapan, 158 Vt. 382, 386, 609 A.2d 970, 972 (1992)
(distinguishing amendment from repeal); State v. Barron, 2011 VT 2, ¶ 38, 189 Vt. 193, 16 A.3d
620 (distinguishing reduction in punishment from redefinition of offense), and we have adopted a
test to determine when those conditions are present, see State v. Flagg, 160 Vt. 141, 144, 624 A.2d
864, 866 (1993).1
¶ 10. An initial reading of § 214(c) suggests that the new legislation does not apply to
defendant because the trial court sentenced him and entered judgment “prior to the date of the
amendment.” 1 V.S.A. § 214(c). But pointing to the common law, defendant argues that under
§ 214(c), a sentence is not “imposed” until resolution of a direct appeal.
¶ 11. Our goal in interpreting a statute is to identify and implement the Legislature’s
intent. State v. Davis, 2020 VT 20, ¶ 47, __ Vt. __, __ A.3d __. “We presume that the plain,
ordinary meaning of statutory language is intended.” State v. Harty, 147 Vt. 400, 402, 518 A.2d
30, 31 (1986). “If the plain language is clear and unambiguous, we enforce the statute according
to its terms.” State v. Blake, 2017 VT 68, ¶ 8, 205 Vt. 265, 174 A.3d 126 (quotation omitted).
Statutes governing the same subject matter are read together, “because a proper interpretation must
1 Given our disposition of defendant’s argument, we assume without deciding that Act 77 effected an amendment reducing the penalty or punishment for escaping from furlough, rather than a repeal or redefinition of the offense. 4 further the entire statutory scheme.” Wool v. Office of Prof’l Regulation, 2020 VT 44, ¶ 22, __
Vt. __, __ A.3d __ (quotation omitted).
¶ 12. Defendant’s reading of § 214(c) is inconsistent with the plain, ordinary meaning of
the word imposed. “Imposing a sentence” naturally connotes a trial court sentencing a defendant
after an adjudication of guilt, not an appellate court disposing of an appeal. This interpretation is
supported by our case law, the law of other jurisdictions, and the Legislature’s use of the word
“impose” in other statutes governing sentencing.
¶ 13. On at least three occasions, this Court has applied the pre-amendment version of a
statute where the trial court pronounced sentence prior to the statutory amendment. See State v.
Aubuchon, 2014 VT 12, ¶ 12 (applying pre-amendment version of statute among other reasons
because defendant was sentenced prior to amendment); State v. LeClair, 2013 VT 114, ¶ 6 n.*,
195 Vt. 295, 88 A.3d 1186 (same), superseded on other grounds by statute, 2013, No. 4, § 1, as
recognized in Aubuchon, 2014 VT 12, ¶ 12; State v. Barron, 2011 VT 2, ¶ 38, 189 Vt. 193, 16
A.3d 620 (same).2 In Barron, we specifically used the plain meaning of the word “imposed.”
There, the trial court sentenced the defendant before the statute was amended and we rejected
defendant’s argument that the new version of the statute controlled. 2011 VT 2, ¶¶ 36, 38. We
held that “§ 214(c) operates as defendant suggests only if the sentence is not imposed ‘prior to the
date of the amendment,’ ” and that “[t]he sentence at issue . . . was imposed prior to the date of the
amendment.” Id. ¶ 38.
¶ 14. Our reading of § 214(c) is consistent with the Legislature’s use of the word impose
in two subsections of 13 V.S.A. § 7042, which also relate to sentencing. Subsection (a) provides
that a court “imposing a sentence . . ., within 90 days of the imposition of that sentence, or within
90 days after entry of any order or judgment of the Supreme Court upholding a judgment of
2 Although these authorities are persuasive in resolving the issue before us, they are not dispositive because they did not consider the argument defendant raises here. 5 conviction, may upon its own initiative or motion of the defendant, reduce the sentence.” Id.
§ 7042(a). This provision would make no sense if we read “imposing a sentence” as the point
when this Court disposes of a direct appeal. The Legislature clearly drew a distinction between a
“court imposing a sentence” and the Supreme Court upholding a judgment on appeal. Indeed, in
State v. Therrien, we held that under § 7042(a), “the sentence is considered to be imposed at the
time of the original sentencing.” 140 Vt. 625, 626-27, 442 A.2d 1299, 1300-01 (1982) (per
curiam). In addition, subsection (b) declares that prosecutors, “within seven business days of the
imposition of a sentence, may file with the sentencing judge a motion to increase, reduce, or
otherwise modify the sentence.” 13 V.S.A. § 7042(b). Although the meaning of “impose” is less
clear in this subsection than in subsection (a), it would be anomalous to find that the Legislature
used the same word with different meanings in two subsections of the same statute. See Envtl.
Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (discussing rebuttable presumption “that the
same term has the same meaning when it occurs here and there in a single statute”). The
Legislature’s use of the word impose in § 7042 is evidence that it intended the same meaning in
§ 214(c). See In re Judy Ann’s Inc., 143 Vt. 228, 231, 464 A.2d 752, 754 (1983) (noting that in
determining legislative intent, it is helpful to review “totality of legislative action on a subject”).
¶ 15. Our plain-language reading of § 214(c) is also consonant with case law from other
jurisdictions. See, e.g., United States v. Cruz-Rivera, 954 F.3d 410, 413 (1st Cir. 2020) (observing
that “[a] sentence is customarily understood to be imposed either when it is pronounced or entered
in the trial court, regardless of subsequent appeals” (quotation omitted)); United States v.
Richardson, 948 F.3d 733, 748 (6th Cir. 2020) (“In the general context of criminal sentencing, a
sentence is ‘imposed’ when the trial court announces it, not when the defendant has exhausted his
appeals from the trial court’s judgment.”); United States v. Pierson, 925 F.3d 913, 928 (7th Cir.
2019) (holding that “[s]entence was ‘imposed’ . . . when the district court sentenced the defendant,
regardless of whether he appealed a sentence that was consistent with applicable law at [the] time
6 it was imposed”), judgment vacated on other grounds by 140 S. Ct. 1291, __ U.S. __ (2020)
(mem.); United States v. Aviles, 938 F.3d 503, 510 (3d Cir. 2019) (“ ‘Imposing’ sentences is the
business of district courts, while courts of appeals are tasked with reviewing them by either
affirming or vacating them.”); State v. Ditmars, 567 P.2d 17, 19 (Idaho 1977) (agreeing that “[t]he
imposition of a sentence means laying the sentence upon the defendant, that is, the act of
sentencing him” (quotation omitted)); State v. Heide, 822 P.2d 59, 64 (Kan. 1991) (“Sentence is
imposed . . . when pronounced by the trial judge.”). These cases support our view that the plain
meaning of imposing a sentence is an action by the trial court, irrespective of appeal.
¶ 16. Against the weight of these authorities, defendant offers United States v. Clark, 110
F.3d 15 (6th Cir. 1997) superseded on other grounds as provided in United States v. Coats, 530 F.
App’x 553, 556 (6th Cir. 2013). In Clark, after the defendant was sentenced, but before disposition
of her appeal, Congress enacted a safety-valve statute relieving certain drug offenders from
mandatory minimum sentences. The statute applied “to all sentences imposed on or after the date
of enactment.” Id. at 17 (quotation omitted). Clark argued that she had to be resentenced under
the new law because her case was pending on appeal when the law was enacted. The Sixth Circuit
agreed, relying on the remedial intent of the statute and the law’s purpose statement, which
suggested that it should receive “broad application.” Id. The Court also reasoned that “[a] case is
not yet final when it is pending on appeal” and that Clark’s initial sentence had not been “finally
‘imposed’ within the meaning of the safety valve statute because it is the function of the appellate
court to make it final after review.” Id.
¶ 17. We respectfully find Clark unpersuasive for the same reasons it was jettisoned by
the Sixth Circuit and rejected by other federal courts of appeals. In Richardson, the Sixth Circuit
rejected the same argument made in Clark and held that “an appeal follows the imposition of a
sentence; it is not part of it.” Richardson, 948 F.3d at 748-49. The Court observed that Clark was
“concerned with the concept of finality and when a sentence was ‘finally’ imposed rather than
7 simply imposed.” Id. at 751. Section 214(c) is silent on finality. See 1 V.S.A. § 214(c). Had the
Legislature intended § 214(c) to apply when a sentence is “finally imposed,” it would have been
easy to so state. See Wool, 2020 VT 44, ¶ 23 (finding some evidence of Legislature’s intent in
legislative silence). More importantly, Richardson questioned Clark’s holding that “[a] case is not
yet final when it is pending on appeal,” and cited U.S. Supreme Court and circuit precedent holding
that a district court’s sentence is a final judgment. See Richardson, 948 F.3d at 752-53. Our state
law is to similar effect. See State v. Merchant, 173 Vt. 249, 253, 790 A.2d 386, 390 (2001)
(holding that “entry of judgment after sentencing constitutes final judgment”). In fact, except for
interlocutory appeals, a final judgment is generally necessary for appellate review. See State v.
Haynes, 2019 VT 44, ¶ 12, __ Vt. __, 215 A.3d 1094 (per curiam). It would be incongruous to
hold that a sentence is not final until an appeal is resolved, when finality is a prerequisite to
appellate review. Other courts of appeals have similarly rejected Clark’s reasoning. See, e.g.,
Pierson, 925 F.3d at 928 (declining to adopt Clark and observing that “no other circuits have
applied Clark’s definition of ‘imposed’ ”); Cruz-Rivera, 954 F.3d at 412 (rejecting Clark
reasoning); Aviles, 938 F.3d at 510 (same).
¶ 18. Additionally, Richardson observed that given Clark’s focus on the amendment’s
purpose suggesting congressional intent for broad application, rather than the statutory text,
“Clark carries less force as applied to other statutes.” Richardson, 948 F.3d at 752. We agree and
find no similar evidence of legislative intent to give the furlough amendment broad application in
the Clark sense. Had the Legislature intended to apply the furlough amendment as broadly as
possible, it could have made the amendment retroactive, instead of relying on the limited
retroactivity of § 214(c). Its choice not to do so further undercuts the persuasiveness of Clark to
the issue before us.
8 ¶ 19. In sum, we hold that under 1 V.S.A. § 214(c), a sentence is imposed by the superior
court upon sentencing or entry of judgment.3 Finding the statute’s language clear and
unambiguous, we enforce it according to its terms. Because the superior court sentenced defendant
and entered judgment prior to the amendment in the law, he was properly sentenced under the
previous version of the statute. We thus turn to defendant’s argument that imposing the sentence
consecutively to the Addison County and federal sentences was an abuse of discretion.
II. Review of Sentence for Abuse of Discretion
¶ 20. Defendant argues that the consecutive sentence only delayed rehabilitation, and that
it was wholly punitive because it will not deter defendant or other members of the public given
that the conduct has been decriminalized. The State counters that the sentence was within statutory
parameters and proportionate to the seriousness of defendant’s behavior. It also observes that the
sentence deters defendant and other members of the public from engaging in new criminal behavior
generally, not just the specific conduct of escaping from furlough.
¶ 21. Vermont follows a situational sentencing scheme requiring the trial court to tailor
the punishment within the statutory range to fit the defendant. State v. Lumumba, 2014 VT 85,
¶ 23, 197 Vt. 315, 104 A.3d 627. In doing so, the court must consider several 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.” 13
V.S.A. § 7030(a). The court has wide discretion in sentencing, and our review is accordingly
limited to whether it abused its discretion. Lumumba, 2014 VT 85, ¶¶ 22-23. “Absent exceptional
circumstances, we will defer to the court’s judgment so long as the sentence is within the statutory
3 Because here the court sentenced defendant and entered judgment on the same day, we reserve for another day the question of whether, for purposes of § 214(c), a sentence is imposed when the trial court sentences the defendant or when it enters judgment when a remedial statute is enacted after sentencing but before the entry of judgment. 9 limits and was not based on improper or inaccurate information.” State v. Daley, 2006 VT 5, ¶ 6,
179 Vt. 589, 892 A.2d 244.
¶ 22. Defendant was charged with escape from furlough under 13 V.S.A. § 1501(b)(2),
which carried a maximum penalty of five years’ imprisonment. Id.; 2019, No. 77, § 10. Because
defendant had prior convictions, he was charged as a habitual offender under 13 V.S.A. § 11,
which exposed him to life imprisonment. As noted, the court sentenced him to four to five years’
imprisonment consecutive to the Addison and federal sentences, which ran concurrent to each
other, and the longest of which was seven years’ imprisonment and three years of supervised
release.
¶ 23. Consecutive sentences are authorized under 13 V.S.A. § 7032 and the sentence fell
well within the statutory limits. At the sentencing hearing, the court considered multiple factors,
including the nature and circumstances of the crime; defendant’s criminal history, which included
thirteen prior convictions, two of them prior escapes; defendant’s mental-health and substance-
abuse issues; defendant’s acceptance of responsibility; and defendant’s positive character traits as
detailed by members of his family. On the record, the court weighed the goals of ensuring public
safety, specific and general deterrence, rehabilitation, and punishment. The court considered the
Addison and federal sentences, and defendant’s request for a concurrent sentence, but ultimately
rejected the request, observing that a concurrent sentence would not satisfy the need for
punishment. The court engaged in a thorough analysis, considered defendant’s specific situation,
and acted within its discretion.
¶ 24. Defendant argues that he could have received programming on federal supervised
release after he served the seven-year portion of the federal sentence, but by adding an additional
four to five years of incarceration, the court delayed rehabilitation. The court was aware that its
sentence would delay the federal rehabilitation programs but noted that some rehabilitative
10 programs are available while incarcerated and that in any event public safety warranted the delay.
This does not constitute an abuse of discretion.
¶ 25. Finally, defendant argues that the sentence serves no deterrent purpose because the
conduct has been decriminalized. As noted, the decriminalization occurred months after the court
sentenced defendant. Given the chronology of events and our limited standard of review, the court
did not abuse its discretion in not considering a fact that did not exist at the time of sentencing.
Defendant can raise this argument with the trial court by filing a motion to review the sentence
under 13 V.S.A. § 7042(a) within ninety days of this opinion. In considering such a motion, the
trial court should assess the effect of decriminalization on the deterrent purpose of defendant’s
sentence, and, if appropriate, resentence accordingly.
Affirmed.
FOR THE COURT:
Associate Justice