State v. Rideout

State v. Rideout (2005-310)

2007 VT 59A

[Filed 20-Jul-2007]

ENTRY ORDER

SUPREME COURT DOCKET NO. 2005-310

JULY TERM, 2007

State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 2, Chittenden Circuit
Robert J. Rideout }
} DOCKET NO. 1833-4-04 CnCr

In the above-entitled cause, the Clerk will enter:

The opinion in State v. Rideout, 2007 VT 59, is retracted and replaced
with the opinion issued today, State v. Rideout, 2007 VT 59A. Paragraph 32
is amended in the following two respects. The third sentence now reads, "A
felony is any crime punishable by a maximum term of more than two years."
The fourth sentence now reads, "Therefore, under the habitual-criminal
statute, defendant might have been sentenced to any term up to and
including life for offenses such as intentionally damaging property valued
at more than $1,000, id. § 3701(a), or breaking or removing a flag holder
on a grave stone, id. § 3766(a) (cum. supp. 2006)."

Affirmed.

FOR THE COURT:

_______________________________________
Paul L. Reiber, Chief Justice

Concurring:

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

_______________________________________
Brian L. Burgess, Associate Justice

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State v. Rideout (2005-310)

2007 VT 59A

[Filed 20-Jul-2007]

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,
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.

2007 VT 59A

No. 2005-310

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

Robert J. Rideout December Term, 2006

Michael S. Kupersmith, J.

Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Thomas D. Anderson, United States Attorney, Carol L. Shea, Chief, Civil
Division, and Heather E. Ross, Assistant U.S. Attorney, Burlington, for
Amicus Curiae United States of America.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. REIBER, C.J. Defendant Robert Rideout appeals from his
convictions for lewd and lascivious conduct with a child and furnishing
drugs to a child, and from the sentences imposed thereon. Defendant argues
that: (1) the trial court erred in failing to enforce a subpoena against a
federal officer, (2) a supplemental jury instruction confused the jury and
shifted the burden of proof, and (3) the trial court improperly relied on
adult convictions obtained when defendant was a minor in finding that he
was a habitual criminal. We affirm.

¶ 2. The record reveals the following facts. Defendant was born
on May 5, 1963. In 1979, when he was sixteen, defendant was convicted of
four felonies: two counts of breaking and entering, 13 V.S.A. § 1202; one
count of receiving stolen property, 13 V.S.A. § 2561; and one count of
armed robbery, 13 V.S.A. § 608(b). All were adult convictions, although
defendant was a minor at the time. In 1986, when he was twenty-three,
defendant was convicted of the felony of escape, in violation of 13 V.S.A.
§ 1501(a)(1), and in 1992 he was convicted of possession of a firearm by a
felon, 18 U.S.C. §§ 922(g)(1) & 924(e)(1)-(2), also a felony. Defendant
was imprisoned on this last conviction until the fall of 2003, soon after
which the events underlying his current convictions ensued. In the summer
of 2004, defendant was charged with two counts of lewd and lascivious
conduct with a child, 13 V.S.A. § 2602, and one count of dispensing a
regulated drug to a minor, 18 V.S.A. § 4237(a). The three 2004 offenses
were all charged under 13 V.S.A. § 11, Vermont's habitual-criminal statute,
which provides for enhanced sentences - up to life imprisonment - upon
conviction of a fourth or subsequent felony.

¶ 3. The 2004 charges arose from events that occurred when
defendant's daughter, then age fifteen, moved in with him after his release
from prison. The first lewd-and-lascivious-conduct charge stemmed from an
incident, between Thanksgiving and Christmas of 2003, in which daughter
awoke to find defendant lying next to her touching her vagina through her
underwear. The second lewd-and-lascivious-conduct charge arose from an
incident, in April 2004, when daughter awoke to find defendant holding her
hand on his penis. The charge of dispensing a regulated drug to a minor
was based on defendant's repeated provision of marijuana to his daughter
during late 2003 and early 2004. During this period, defendant was on
unsupervised release, with conditions, stemming from his 1992 felony
firearm-possession conviction. His release conditions required that he
submit to regular drug tests, and defendant was never found to be in
violation of those conditions, but the record is silent as to whether he
failed any drug test. (FN1)

¶ 4. On April 25, 2005, the night before trial was to begin,
defendant served his federal probation officer with a subpoena to appear at
trial on April 27. The following day, the United States Attorney's Office
moved to quash the subpoena, on the ground that a federal court rule
required service fifteen days in advance of the requested appearance, a
specific description of the testimony sought, and a recitation of the
reasons the information sought was unavailable from other sources. After
much back-and-forth, the trial court neither granted the motion to quash
nor attempted to enforce the subpoena.

¶ 5. At trial, defendant's daughter testified that she had lived
with her aunt while defendant was serving time on the firearm-possession
conviction. Defendant was released from prison and returned to Vermont in
the fall of 2003, and daughter moved in with defendant in November 2003,
after she had a series of arguments with her aunt. For the first few
weeks, defendant and daughter lived in a house with friends. Defendant
slept on the couch at first, but later began sleeping in the same bed as
daughter. One night, daughter testified, she woke up to find defendant
kneeling next to the bed, massaging her vagina with his hand. On two or
three other nights, daughter testified, she awoke to find defendant pressed
up against her with his hand on his penis.

¶ 6. Defendant and daughter ultimately left the friends' house and
lived for a time in a nearby motel. While there, defendant sometimes slept
in the same bed with daughter, who testified that she woke up more than
once to find defendant "right on the side of [her]" masturbating. When
defendant and daughter moved out of the motel, they lived with another
family friend for about two months before moving into a one-bedroom
apartment of their own in Burlington. Soon after they moved into the
apartment, according to daughter's testimony, she awoke one night to find
defendant sitting next to her in her bed, holding her hand on his penis.
Daughter testified that she moved back in with her aunt the following day,
in April 2004.

¶ 7. Soon after daughter moved back in with her aunt, both provided
sworn statements to a detective at the Chittenden Unit for Special
Investigations (CUSI) who testified at trial. Defendant's mother also
provided a sworn statement to CUSI. The defense and the prosecution were
both properly provided with copies of the sworn statements. Defendant's
mother appeared as a defense witness at trial and testified that she had
observed defendant and daughter to have a "normal" parent-child
relationship, and that she could not recall a conversation with defendant
in which he admitted to furnishing marijuana to daughter and to "treating
[daughter] like a wife." The prosecution used the CUSI statement to
impeach the veracity of this testimony. Daughter testified for the
prosecution at trial. On cross-examination, the defense did not refer to
any inconsistencies between daughter's CUSI statement and her testimony at
trial.

¶ 8. After the close of the evidence, the jury was charged without
objection and retired to deliberate. During the course of its
deliberations, the jury questioned the court regarding the
lewd-and-lascivious conduct charge, requested playback and transcripts of
certain testimony, and finally asked the following questions:

Is there any way we can have information confirming that
[daughter's] Court testimony is consistent with the statement made
to CUSI?

Did the Defense find any inconsistencies between [daughter's]
Court testimony and the statements made to CUSI? If yes, can we
know what?

Following a conference with counsel, detailed more fully below, the court
issued a supplemental instruction responding to the questions. The jury
subsequently returned guilty verdicts on the two
lewd-and-lascivious-conduct charges.

¶ 9. Defendant was ultimately convicted of the two counts of lewd
and lascivious conduct with a child and a single count of dispensing a
regulated drug to a minor, and was sentenced under the habitual-criminal
statute, 13 V.S.A. § 11, to two concurrent sentences of twenty to fifty
years. This appeal followed.

I. The Subpoena

¶ 10. Defendant first asserts that the trial court violated his
right, under the Sixth Amendment to the United States Constitution and
Chapter 1, Article 10 of the Vermont Constitution, to call witnesses on his
own behalf when it refused to enforce his subpoena of the federal probation
officer. Defendant averred that the officer would testify that defendant
had not been found in violation of probation during a period when a
condition of his probation was that he submit to regular drug tests. This
testimony, however, was peripherally relevant at best, particularly in
light of defendant's admission at trial that he had regularly smoked
marijuana during the period in question and had at times provided it to his
daughter, and the testimony of an acquaintance to whom defendant had
bragged that he knew how to beat the drug tests. Further, the State
averred that police officers had found, among defendant's other
possessions, a device designed to dispense "clean" urine through a tube to
beat the tests, which evidence would have been subject to admission if the
officer had testified. In the face of these facts, the officer's testimony
would have served no exculpatory purpose, as defendant's counsel expressly
recognized, even had it been deemed relevant. At best, it might have
supported a conclusion that defendant violated the conditions of his
probation, but was not caught.

¶ 11. Further, whether defendant violated his federal probation is a
matter of public record, and the information sought from the officer was
therefore readily available from other sources. Finally, defendant's
subpoena seeking the probation officer's appearance was not timely filed
under the federal court's rules. See Testimony of Judiciary Personnel and
Production of Judiciary Records in Legal Proceedings, adopted by the
Judicial Conference of the United States in March 2003, available at
http://www.uscourts.gov/courts/regulations.htm.

¶ 12. Compulsory process is mandated, under the Sixth Amendment and
Article 10, only where "the witness[] to be called will offer testimony
which is competent, relevant and material to the defense." State v.
Kennison, 149 Vt. 643, 649, 546 A.2d 190, 194 (1987); State v. Roberts, 154
Vt. 59, 66 n.3, 574 A.2d 1248, 1250 n.3 (1990) ("The protection provided
the accused by the . . . confrontation clause contained in Chapter I,
Article 10 is no greater in scope than that afforded by the Sixth Amendment
to the federal constitution."). The burden is on defendant to show that
the proffered testimony meets these criteria, Kennison, 149 Vt. at 649, 546
A.2d at 194, and defendant did not carry that burden. Accordingly, we find
no error and no violation of either the Sixth Amendment or Article 10. (FN2)

II. The Supplemental Jury Instruction

¶ 13. Defendant next argues that the trial court erred when it gave
an additional instruction in response to questions from the jury after
deliberations became deadlocked. Defendant asserts that the supplementary
instruction shifted the burden of proof to defendant, thereby depriving him
of his right to a fair trial. The instruction to which defendant objects
came in response to a written question posed by the jury after more than
six hours of deliberations. The jury posed two questions pertinent to this
appeal: (1) "Is there any way we can have information confirming that
[daughter's] Court testimony is consistent with the statement made to
CUSI?" and (2) "Did the Defense find any inconsistencies between
[daughter's] Court testimony and the statements made to CUSI? If yes, can
we know what?" The court proposed to respond to the jury as follows:

(1) all prior statements of . . . all witnesses are given to the .
. . Defense by the State. And No. 2 . . . it is permissible for
the [Defense] to impeach[,] that is to call into question[,] . . .
the courtroom testimony of witnesses if the witness made any prior
inconsistent statements on other occasions.

During the ensuing colloquy, at which counsel for the State and for
defendant were present, the defense objected, arguing that the court's
proposed instruction might give rise to an inappropriate inference by the
jury: namely, that the defense's decision not to confront daughter with
prior inconsistent statements represented a concession by the defense that
there either were no such inconsistencies or that they were unimportant.
The defense contended that the instruction should reflect the defense's
tactical decision not to confront daughter - whose testimony was already
fraught with emotion - with inconsistencies because doing so might have
caused the jury to view the defense as overly confrontational.

¶ 14. The court then proposed the following amended instruction:

(1) All prior statements of witnesses known to the State . . . are
disclosed to the Defense prior to trial. (2) If there are any
inconsistencies between the Court testimony of a witness and any
prior statement, the Defense may question or cross examine the
witness about these but need not do so.

(Emphasis added.) The defense again objected, noting that the defense was
concerned that because it tactically chose not to impeach daughter with the
prior statements in order not to upset her, the jury "may draw the
erroneous conclusion that there were [no] contradictions." The jury was
ultimately instructed as follows:

First of all, . . . the evidence is closed and we can't add
anything at this point but there are some principles . . . that
you should be aware of and they are these. . . . [A]ll prior
statements of witnesses whether written or verbal that are known
to the State . . . must be disclosed to the Defense . . . . The
second principle is . . . this. If there are any inconsistencies
between the Court testimony of a witness and what the witness has
said or written on any prior occasion . . . the Defense may
question or cross examine the witness about it while he or she is
on the witness stand but is not required to do so. And might not
for practical reasons but those are the two principles that you
should be aware of.

(Emphasis added.) Defendant did not renew his objection to this
instruction after it was given.

¶ 15. Although defendant appears to concede that he did not
preserve this objection for appeal and that our review should therefore be
limited to plain error, we disagree. We do not require that objections
made before the supplemental instruction is given be renewed thereafter in
order to preserve those objections for appellate review. State v. Keiser,
174 Vt. 87, 91-92, 807 A.2d 378, 383 (2002) ("To require counsel to again
object after a single supplemental instruction in order to preserve the
issue is ordinarily unnecessary given the narrow scope of the
instructions."); Reporter's Notes, V.R.Cr.P. 30 ("The rule does not apply
to comment upon the evidence or to such further instructions as the jury
may require after it has retired, whether on the merits or because of
deadlock."). See also State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972,
975 (1992) (noting that the purpose of requiring renewed objections after
the jury is charged is, in part, to enable this Court to better determine
precisely which of the objections raised at the pre-charge conference
counsel intends to preserve for appeal). Here, the supplemental
instruction was slightly more complex than the instruction in Keiser, but
was not so extensive as to require a renewed objection to clearly preserve
discrete issues for appeal.

¶ 16. We further require that the pre-instruction objection be
"stated with specificity" in order that the trial court will have an
adequate opportunity to respond to the alleged error. Keiser, 174 Vt. at
91, 807 A.2d at 382. Defendant's counsel did so here, and the trial court
amended the instruction twice in response. The objection is adequately
preserved for this appeal. We conclude, however, that the claim of error
fails.

¶ 17. We review jury instructions as a whole to ensure that they
"accurately state the law." State v. Baird, 2006 VT 86, ¶ 30, ___ Vt. ___,
908 A.2d 475 (internal quotations omitted). Within the parameters of the
law, the trial court "may exercise its discretion in the wording of the
jury charge; a defendant is not entitled to have specific language
included." Id. (internal quotations omitted). At trial, defendant
expressed a concern, in light of the first proposed supplemental
instruction, that the jury might not be made aware that the defense might
have chosen, for strategic reasons, not to cross-examine or impeach
defendant's daughter with prior inconsistent statements. The court
modified the instruction to address that concern, and ultimately instructed
the jury that, while the defense was permitted to impeach witnesses with
prior inconsistent statements, it was "not required to do so" and "might
not for practical reasons." (FN3) This wording breathes the correct spirit
of the law, particularly in light of the court's earlier instructions.
Those instructions explicitly stated that the "burden is always upon the
State to prove the accused is guilty by proving beyond a reasonable doubt
every essential element of the crime charged." The jury was also
instructed that defendant was to be presumed innocent until proven guilty,
and was not required to call any witness at all, but could instead "rely
entirely on the presumption that he is innocent until proven guilty."
Because we presume that the jury will follow all of the instructions given
by the court, State v. Green, 2006 VT 64, ¶ 10, ___ Vt. ___, 904 A.2d 87
(mem.), the supplemental instruction did not deprive defendant of his right
to a fair trial and was not error.

III. The Sentence

¶ 18. Finally, defendant argues that the trial court erred in
sentencing him as a habitual criminal under 13 V.S.A. § 11, because he was
sixteen years old when four of his six predicate felonies occurred and the
resultant sentences therefore assertedly offend the Eighth Amendment
prohibition against cruel and unusual punishment. If defendant's four
felony convictions from 1979 had not been counted, he would have had only
two prior felonies, and could not have been sentenced as a habitual
criminal. The State contends, first, that defendant failed to raise the
issue below, thereby waiving appellate review. Alternatively, the State
argues that defendant's claim of error, even if preserved for our review,
must fail because defendant was tried and convicted as an adult in criminal
court for the 1979 felonies, despite his minority. Although we disagree
with the State as to the preservation issue, we agree that the trial court
did not err in counting the defendant's convictions in adult court toward
habitual-criminal status.

¶ 19. As a general rule, we will not consider issues that were not
raised with specificity and clarity at trial. State v. Ovitt, 2005 VT 74,
¶ 13, 178 Vt. 605, 878 A.2d 314 (mem.). An issue is not preserved for
appeal unless it has been raised at trial with sufficient specificity to
afford the trial court "an opportunity to fully develop the relevant facts
and to reach considered legal conclusions." Id. Issues not preserved are
reviewed for plain error. State v. Percy, 158 Vt. 410, 418, 612 A.2d 1119,
1125 (1992).

¶ 20. Defendant did not brief the claim below, but did twice orally
advise the trial court that using the 1979 convictions as predicates for
habitual-criminal sentence enhancement was problematic. Both objections
were brief and cited no legal authority for defendant's argument, which he
stated was one "of first impression." While we take seriously the concerns
underlying our rule against considering issues not raised with specificity
and clarity at trial, defendant's oral objections here were sufficient to
allow the trial court to consider and rule on this purely legal issue. Our
review is not compromised by any claimed infirmity in the trial court's
development of the relevant facts, which are undisputed. Accordingly, we
will consider the claimed error. For the reasons articulated below,
however, we conclude that the trial court committed no error in counting,
for purposes of 13 V.S.A. § 11, the felonies of which defendant was
convicted in adult court when he was a minor.

¶ 21. A brief review of Vermont's juvenile justice system is a
useful preface to our analysis. The Legislature established juvenile
courts, and limited their jurisdiction, by statute. 1967, No. 304 (Adj.
Sess.); 33 V.S.A. §§ 5501-61. Juvenile defendants may be tried either in
adult criminal court or in juvenile court, depending on their age, the
character of the crime, and the discretion of the prosecutor or the courts.
In particular, criminal proceedings against defendants between the ages of
sixteen and eighteen may be transferred to juvenile court from the criminal
courts at the discretion of the criminal courts, and such defendants have
no absolute right to have their cases transferred to juvenile court. Id. §
5505(b); State v. Smail, 151 Vt. 340, 341, 560 A.2d 955, 955 (1989); cf.
State v. Buelow, 155 Vt. 537, 544-45, 587 A.2d 948, 953 (1990) (transfer of
fourteen-year old's murder trial is committed to the discretion of the
trial court).

¶ 22. Defendant does not claim that he was not properly before the
adult criminal court in 1979, however. He argues only that, simply because
he was a minor at the time of his four 1979 convictions, they cannot be
counted as prior felonies under 13 V.S.A. § 11, because doing so resulted
in a sentence so severe as to be cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments to the United States Constitution.
(FN4) We disagree.

¶ 23. Our analysis begins with the plain language of the statutes.
The habitual-criminal statute, 13 V.S.A. § 11, provides as follows:

A person who, after having been three times convicted within this
state of felonies or attempts to commit felonies, or under the law
of any other state, government or country, of crimes which, if
committed within this state, would be felonious, commits a felony
other than murder within this state, may be sentenced upon
conviction of such fourth or subsequent offense to imprisonment up
to and including life.

In Vermont, a felony is "any offense whose maximum term of imprisonment is
more than two years, for life or which may be punished by death." 13
V.S.A. § 1 (emphasis added). As noted above, in Vermont sixteen-year-old
defendants may be convicted of felonies in adult court, as defendant was in
1979. Neither 13 V.S.A. § 1 nor § 11 distinguishes between convictions of
minors and convictions of adults, although the analogous habitual-offender
statutes in some other states do make such distinctions. See, e.g., Cal.
Penal Code § 667(d)(3) (defining the conditions under which even a juvenile
adjudication may be later considered a predicate offense for
habitual-criminal sentence enhancement); Fla. Stat. § 775.084(1)(a)-(d)
(allowing use of any felony for a finding that a defendant is a "habitual
felony offender" or "habitual violent felony offender," but requiring that
the predicate felonies for a finding of "three-time violent felony
offender" and "violent career criminal" status have been committed as an
adult); Tex. Fam. Code Ann. § 51.13(d) (juvenile adjudication for behavior
that would be a felony if committed by an adult is counted towards
habitual-offender status). The language of our statutes makes plain that
the Legislature intended that felony convictions of minor defendants could,
in the trial court's discretion, be counted towards habitual-criminal
status under 13 V.S.A. § 11. The question remains whether § 11 is
constitutional as applied to defendant here. (FN5)

¶ 24. The federal courts that have considered the analogous question
under the federal sentencing guidelines (FN6) have uniformly held that
convictions of minors in adult court may be used for sentence enhancement
up to and including life imprisonment. See, e.g., United States v. Moorer,
383 F.3d 164, 167 (3d Cir. 2004); United States v. McNeil, 90 F.3d 298,
299-300 (8th Cir. 1996); United States v. Bacon, 94 F.3d 158, 161 n.2 (4th
Cir. 1996); United States v. Muhammad, 948 F.2d 1449, 1459 (6th Cir. 1991)
("[Defendant] merely claims that the fact that he was seventeen at the time
of his [prior adult] conviction should bar its use in calculating his
career offender status. This novel argument is without precedent.");
United States v. Unger, 915 F.2d 759, 764 (1st Cir. 1990), cert. denied,
498 U.S. 1104 (1991). The federal guidelines, unlike the Vermont statutes
in question here, explicitly include adult convictions of juveniles as
predicate offenses for enhanced sentencing, however. U.S. Sentencing
Guideline § 4A1.2(d)(1). The federal cases therefore do not end our
inquiry.

¶ 25. State courts that have considered the question, under a
variety of statutory schemes, have also consistently held that felony
convictions of minors obtained in criminal court may be later used for
sentence enhancement. See, e.g., Sandoval v. People, 426 P.2d 968, 969-70
(Colo. 1967) (prior burglary conviction, as minor, resulting in sentence
served in state reformatory, was felony for purposes of sentencing as a
habitual criminal); Whitfield v. Singletary, 730 So. 2d 314, 315 (Fla.
Dist. Ct. App. 1999) (per curiam) ("It is true that the defendant was
sentenced as a youthful offender for [his prior felony robbery conviction
in criminal court], but that does not preclude its consideration as a
predicate offense."); Lazenby v. State, 470 S.E.2d 526, 528-29 (Ga. Ct.
App. 1996) (prior conviction, as a minor, of felony robbery, was properly
considered as supporting recidivist sentencing upon subsequent adult
conviction); State v. Moore, 596 S.W.2d 841, 845 (Tenn. Crim. App. 1980)
(prior conviction, as a minor, was properly considered for sentencing as a
habitual criminal).

¶ 26. Many courts have held that juvenile adjudications against
minors may not be counted towards habitual-offender status upon a
subsequent felony conviction as an adult. See, e.g., Ex Parte Thomas, 435
So. 2d 1324, 1325 (Ala. 1982) (holding that a "youthful offender
determination. . . may not be considered a prior felony conviction, as
contemplated by the Habitual Offender Act, so as to bring the defendant
within the purview of the higher sentence categories of that Act"); Rogers
v. State, 538 S.W.2d 300, 302-03 (Ark. 1976) (holding that a prior
adjudication of delinquency under the Federal Juvenile Delinquency Act is
not a felony conviction and cannot be counted towards habitual-offender
sentencing); People v. West, 201 Cal. Rptr. 63, 68 (Ct. App. 1984) (same;
noting the "numerous procedural differences between a juvenile proceeding
and a criminal proceeding, most notably in the area of due process (e.g.,
right to a jury trial)"); People v. Figueroa, 404 N.Y.S.2d 348, 349 (App.
Div. 1978) (mem.) (noting, in dicta, that the defendant's prior
youthful-offender adjudication was not a "judgment of conviction" for
purposes of sentence enhancement; reversing on other grounds). These
courts and others have premised their holdings on the procedural
protections absent from juvenile proceedings. (FN7)

¶ 27. We need not venture into the thicket of constitutional issues
(FN8) raised by sentence enhancement based on juvenile adjudications
obtained without a jury, however. Defendant pleaded guilty in adult court
to his 1979 offenses. Defendant did not, so far as the record reflects,
either move for transfer to juvenile court or appeal from the venue of his
1979 convictions, which he could have done. 1967, No. 304 (Adj. Sess.), §
5(b) (criminal court "may" transfer proceeding against sixteen- to
eighteen-year-old defendant to juvenile court); State v. Powers, 136 Vt.
167, 169-70, 385 A.2d 1067, 1068 (1978) (minor defendant, tried in adult
criminal court, moved to transfer case to juvenile court and then appealed
denial of motion under former 33 V.S.A. § 635, predecessor to 33 V.S.A. §
5505). Although the statute does not mandate enhanced penalties for fourth
and subsequent offenses, it does vest the district court with discretion to
impose up to life imprisonment in such cases. State v. Angelucci, 137 Vt.
272, 289, 405 A.2d 33, 42 (1979); 13 V.S.A. § 11 (habitual offender "may be
sentenced upon conviction of such fourth or subsequent offense to
imprisonment up to and including life"). In light of the foregoing
authorities, we cannot say that the district court abused its discretion in
imposing an enhanced sentence on defendant based on his 1979 convictions.

¶ 28. We turn now to consider whether defendant's sentence, as a
habitual criminal, amounts to cruel and unusual punishment proscribed by
the Eighth Amendment despite being permissible under 13 V.S.A. § 11. The
Eighth Amendment embodies only a "narrow proportionality principle" in
noncapital cases. Ewing v. California, 538 U.S. 11, 20 (2003) (quoting
Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring
in part and concurring in the judgment)). As the United States Supreme
Court has acknowledged, its "precedents in this area have not been a model
of clarity," Lockyer v. Andrade, 538 U.S. 63, 72 (2003), but "one
governing legal principle emerges as 'clearly established' . . . : A gross
disproportionality principle is applicable to sentences for terms of
years." Id.; see also State v. Alexander, 2005 VT 25, ¶ 9, 178 Vt. 482,
871 A.2d 972 (noting that sentences to terms of years are constitutional
unless "clearly out of all just proportion to the offense") (internal
quotations omitted). The Lockyer Court noted that the Eighth Amendment
requires striking down sentences to terms of years only in "exceedingly
rare" and "extreme" cases. Id. at 73 (quoting Harmelin, 501 U.S. at 1001
(Kennedy, J., concurring in part and concurring in the judgment)).
Although the "precise contours of [the proportionality principle] are
unclear," the sentence in the instant case does not approach them.

¶ 29. The Eighth Amendment does not prohibit a life sentence with
the possibility of parole after twelve years for a third-time offender
whose offenses were all minor, non-violent property crimes. Rummel v.
Estelle, 445 U.S. 263, 284-85 (1980). The triggering offense in Rummel was
a conviction for felony theft: "obtaining $120.75 by false pretenses." Id.
at 266. The Rummel defendant's two prior convictions were for "fraudulent
use of a credit card to obtain $80 worth of goods or services" and for
"passing a forged check in the amount of $28.36." Id. at 265. Nor does
the Eighth Amendment bar a sentence of twenty-five years to life for a
recidivist whose triggering conviction was a "wobbler" that could have been
sentenced as either a misdemeanor or a felony under California law. Ewing,
538 U.S. at 30 (noting that the sentence, though a "long one," nonetheless
"reflects a rational legislative judgment, entitled to deference, that
offenders who have committed serious or violent felonies and who continue
to commit felonies must be incapacitated").

¶ 30. In only one case has the United State Supreme Court struck
down a recidivist's sentence of imprisonment on
cruel-and-unusual-punishment grounds. Solem v. Helm, 463 U.S. 277, 303
(1983). But the defendant in Solem, unlike defendant in the instant case,
was a nonviolent offender and was sentenced to life without parole, the
most severe sentence available in South Dakota at the time. Helm's
sentence was based on a final offense of uttering a bad check for $100, and
was enhanced on the basis of six prior convictions: three convictions for
third-degree burglary, one for obtaining money under false pretenses, one
for grand larceny, and one for third-offense driving while intoxicated.
The Court's holding in Solem was explicitly premised on the nonviolent,
"minor" character of the defendant's felonies. Id. at 296-97. Further,
the Court relied on the fact that Helm could only have received the
sentence that he did in one other state, id. at 299-300, and on the
unavailability of parole, id. at 297, 300. In evaluating Helm's sentence,
the Solem Court considered three factors: (1) the gravity of the offense
and the harshness of the penalty; (2) sentences imposed for other offenses
in the same jurisdiction; and (3) sentences imposed for the same offense in
other jurisdictions. Id. at 290-92. Applying these factors to the instant
case reveals no constitutional infirmity in defendant's sentence.

¶ 31. First, the harshness of defendant's penalty was not out of
all proportion with the gravity of his offense. Defendant's triggering
convictions were for lewd and lascivious conduct with a child age fifteen
which, though not defined by statute as "felony crime[s] of violence," are
crimes against the person and so are certainly distinct from the mere
property offenses in Solem. Cf. 13 V.S.A. § 11a(d)(13) (defining, as a
felony crime of violence, lewd and lascivious conduct with a child under
thirteen by an actor over eighteen). We recognize, of course, that any
assessment of the relative seriousness of criminal offenses is
fundamentally speculative. See Rummel, 445 U.S. at 282 n.27 ("[T]he
'seriousness' of an offense or pattern of offenses in modern society is not
a line, but a plane. Once the death penalty and other punishments
different in kind from fine or imprisonment have been put to one side,
there remains little in the way of objective standards . . . .").
Nonetheless, it is safe to say that defendant's conduct is more serious
than that of the defendant in Rummel, whose life sentence with possibility
of parole was upheld. As defendant's penalty here is also less harsh than
the Rummel defendant's, this first Solem factor lends little support to his
claim of error.

¶ 32. The second Solem factor - the sentences imposed for other
crimes in the same jurisdiction - also undercuts defendant's position.
Under the habitual-criminal statute, any fourth or subsequent felony is
punishable by up to life imprisonment. A felony is any crime punishable by
a maximum term of more than two years. 13 V.S.A. § 1. Therefore, under
the habitual-criminal statute, defendant might have been sentenced to any
term up to and including life for offenses such as intentionally damaging
property valued at more than $1,000, id. § 3701(a), or breaking or removing
a flag holder on a grave stone, id. § 3766(a) (cum. supp. 2006). The
Legislature, by operation of 13 V.S.A. § 11, has authorized long prison
terms for recidivist felons of all stripes, and defendant's triggering
felonies are no less serious - and definitely not egregiously so - than
many of the other felonies for which the same penalty might have been
imposed.

¶ 33. As to the third Solem factor, no argument has been advanced
that Vermont stands alone among the states in authorizing a
twenty-to-fifty-year sentence for an offender with defendant's record, and
a review of other states' practices reveals that such an argument would, in
any event, be unfounded. See, e.g., Fla. Stat. Ann. § 775.084,
800.04(5)(c)(2) (defining "lewd and lascivious molestation of a child" as a
second-degree felony and providing for a sentence of not more than thirty
years per offense, with no possibility of release for ten years, where the
offender is a "habitual violent felony offender," which defendant would be
under Fla. Stat. Ann. § 775.084(1)(b)); State v. Gain, 90 P.3d 920 (Idaho
2004) (sentence of twenty-five years - with no opportunity for parole
until twelve served - for first-offense lewd and lascivious conduct with
child, does not offend Eighth Amendment). Indeed, in at least one state,
defendant's lewd-and-lascivious-conduct offenses, standing alone, would
expose him to a life sentence. Idaho Code Ann. § 18-1508 (allowing life
sentence for first-offense lewd and lascivious conduct). The third Solem
factor, accordingly, does not buttress defendant's argument.

¶ 34. Defendant also cites Roper v. Simmons, 543 U.S. 551 (2005) -
in which the Supreme Court of the United States held unconstitutional a
Missouri statute authorizing the death penalty for persons under eighteen
years of age - for the proposition that his sentence in this case violates
the Eighth and Fourteenth Amendments. But Roper cannot bear the weight
defendant would place on it; the instant case involves imprisonment, not
death, a distinction critical to Roper's reasoning. See 543 U.S. at
568-75; cf. Rummel, 445 U.S. at 272 ("Outside the context of capital
punishment, successful challenges to the proportionality of particular
sentences have been exceedingly rare."). The Roper Court also took pains
to review changing capital-punishment practices nationwide before
concluding that "evolving standards of decency" compelled the conclusion
that minor defendants could no longer constitutionally be sentenced to
death. 543 U.S. at 564-68. There is no indication that defendant's
sentence enhancement runs afoul of any such consensus.

¶ 35. Further, the defendant in Roper was sentenced to death
solely for an offense committed while he was a minor. Id. at 556.
Defendant here is an adult now and was an adult when he committed both his
most recent offenses and two of the other predicate felonies relied on by
the trial court. The mere fact that his sentence for crimes committed as
an adult has been affected by adult convictions obtained while he was a
minor does not by itself bring his sentence within Roper's narrow
protective ambit. A defendant sentenced as a recidivist or habitual
criminal is not punished again for his prior crimes, but rather receives an
enhanced sentence for the present offense. See, e.g., Witte v. United
States, 515 U.S. 389, 400 (1995) ("In repeatedly upholding . . . recidivism
statutes, we have rejected double jeopardy challenges because the enhanced
punishment . . . [is] a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because a repetitive one.")
(internal quotation marks omitted, emphasis added); People v. Walker, 623
N.E.2d 1, 5 (N.Y. 1993) ("When a defendant is sentenced as a [repeat]
offender, the initial felony case is not reopened, nor is defendant
punished again for his initial crime.").

¶ 36. Roper was also premised on the importance of giving minor
offenders an opportunity to mend their ways. 543 U.S. at 570 ("From a
moral standpoint it would be misguided to equate the failings of a minor
with those of an adult, for a greater possibility exists that a minor's
character deficiencies will be reformed."). In the instant case, that
possibility has largely gone by the board and is not, in any event,
entirely foreclosed by defendant's sentence to a term of years, as it would
be by a death sentence. Defendant's transgressions have continued
throughout his adult life, and the Legislature is within constitutional
limits in allowing him to be punished more severely for his recent crimes
in light of that record. This is in sharp contrast to the minor offender
in Roper, who had no prior convictions and was sentenced to death for a
single act, heinous though that act was. Id. at 558. For these reasons -
and others we need not belabor here - Roper is inapposite.

¶ 37. Defendant also cites the former 33 V.S.A. § 5538(e) (recently
amended, see 2005, No. 198 (Adj. Sess.), § 2, and now 33 V.S.A. § 5538(g)
(cum. supp. 2006)), which governs the sealing of records of court
proceedings in which a minor is tried and convicted as an adult. Defendant
argues that "convictions that can be expunged, upon application, from a
defendant's record because they were obtained when he was a juvenile,
should not be the basis for enhancing his exposure, now as an adult, to a
potential life sentence." This argument, too, is unavailing.

¶ 38. The version of the expunction statute operative at the time of
defendant's sentencing provided as follows:

On application of a person who has pleaded guilty to or has been
convicted of the commission of a crime committed under the laws of
this state prior to attaining the age of majority, or on the
motion of the court having jurisdiction over such a person, the
files and records may be sealed after proceedings in conformity
with and subject to the limitations of subsections (a), (b), (c)
and (d) of this section.

33 V.S.A. § 5538(e) (2001). First, defendant does not claim to have
applied to seal the records of the convictions whose use he now challenges.
Second, the limitations in the other listed subsections include the
requirement, in subsection (a), that the applicant for sealing not have
since been convicted of "a felony or misdemeanor involving moral
turpitude." Id. § 5538(a). Defendant's convictions for lewd and
lascivious conduct with a child fit squarely under the "turpitude"
umbrella, and the records from his 1979 convictions would therefore not
have been sealed, even had he applied. Defendant's assertion that the
record of his 1979 convictions "could be expunged" is inaccurate and does
not support his position. (FN9)

¶ 39. For the foregoing reasons, we find no error in the trial
court's conclusion that defendant's felony convictions, as a minor, in
adult criminal court, may be counted towards habitual-criminal status under
13 V.S.A. § 11. As we also find defendant's other claims of error
unavailing, the judgment below must stand.

Affirmed.

FOR THE COURT:

_______________________________________
Chief Justice

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Foonotes

FN1. A person released on conditions may fail a mandatory drug test and yet
not be found in violation.

FN2. Because we conclude that defendant failed to show that the federal
officer's testimony would be competent, relevant, and material to his
defense, we need not consider the question of whether or how the trial
court could have enforced the subpoena had such a showing been made.

FN3. Because the court expressly instructed the jury that defendant was not
required to impeach daughter, and might not do so "for practical reasons,"
we disagree with defendant's assertion that 13 V.S.A. § 6601 (or the
constitutional mandate it implements) applies here. Section 6601 provides
only that "the failure of [a defendant] to testify shall not be a matter of
comment to the jury by either the court or the prosecutor and shall not be
considered by the jury as evidence against him." Here, defendant did
testify, and the court's instruction was merely a neutral statement of the
law in response to a jury question about the defense's decision not to
cross-examine daughter. We do not now foreclose the possibility, of
course, that § 6601 might bar a supplemental instruction that did not
contain the curative language present in the instruction in this case.

FN4. The Eighth Amendment declares: "Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted."
U.S. Const. amend. VIII. The Amendment is applicable to the states by
operation of the Fourteenth Amendment. Robinson v. California, 370 U.S.
660, 667 (1962).

FN5. Defendant does not contend that recidivist sentencing is
constitutionally infirm in all cases, and does not contest the use of his
felony convictions as an adult for this purpose. Cf. Spencer v. Texas, 385
U.S. 554, 560 (1967) (upholding, against several constitutional attacks,
Texas' recidivist sentencing statute).

FN6. We note that the mandatory application of the United States Sentencing
Guidelines was held unconstitutional in United States v. Booker, 543 U.S.
220 (2005). Booker, however, held only that sentence-enhancing facts other
than prior convictions must be found by a jury. Id. at 244. Booker does
not undercut the logic of the quoted language from Moorer, McNeil, Bacon,
and Muhammad, although it may, as noted infra, ¶ 26, impact the ability
of states to use juvenile adjudications obtained without particular
procedural protections for sentence enhancement. That question, of course,
is not before us today. Defendant's prior convictions were all obtained in
adult proceedings and Vermont's habitual-criminal statute does not allow
sentence enhancement for prior juvenile adjudications obtained without a
jury.

FN7. Juvenile proceedings, though they are subject to certain due-process
requirements, may dispense with others, particularly the right to a jury.
Kent v. United States, 383 U.S. 541, 545 n.3 (1966); McKeiver v.
Pennsylvania, 403 U.S. 528, 545-50 (1971) (identifying thirteen reasons why
the jury-trial requirement should not be imposed on the juvenile process).

FN8. See generally B. Thill, Prior "Convictions" Under Apprendi: Why
Juvenile Adjudications May Not be Used to Increase an Offender's Sentence
Exposure if They Have Not First Been Proven to a Jury Beyond a Reasonable
Doubt, 87 Marq. L. Rev. 573 (2004).

FN9. The recent amendments to § 5538 also do not advance defendant's cause.
The revised statutory scheme generally "favors the sealing of juvenile
records if, after a period of time, the juvenile does not commit a serious
crime or offense, while allowing a judge the discretion to deny the sealing
if he or she believes the juvenile has not been rehabilitated." 2005, No.
198 (Adj. Sess) § 1(3). More specifically, the former subsection (e), now
subsection (g), mandates sealing of records of adult convictions on
application of the convict, but only if several findings are made. Id. §
2. First, the convict must apply to have the records sealed, which
defendant does not claim to have done. Even if he had so applied, his
application would have failed due to the further requirement that the
applicant not have since been convicted of any "listed crime" as defined in
13 V.S.A. § 5301. Lewd and lascivious conduct with a minor is a listed
crime. 13 V.S.A. § 5301(7)(I).