Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2010-363
APRIL TERM, 2011
State of Vermont } APPEALED FROM:
}
v. } Superior Court, Chittenden Unit,
} Criminal Division
}
Corey Price } DOCKET NO. 744-2-10 Cncr
Trial Judge: Linda Levitt
In the above-entitled cause, the Clerk will enter:
Defendant appeals pro se from the superior court’s denial of his motion for sentence
reconsideration. We affirm.
In April 2010, defendant pled guilty to two counts of selling cocaine in violation of 18
V.S.A. § 4231(b). Pursuant to a plea agreement, the State dismissed another count of selling
cocaine and a conspiracy charge, and it agreed to recommend an aggregate sentence of two years
and six months to five years, all suspended except two years and six months, and probation. The
trial court accepted defendant’s plea and sentenced him according to the agreement on April 16,
2010. On July 22, 2010, defendant filed a pro se motion for sentence reconsideration in the
Chittenden Civil Division of the Vermont Superior Court; the motion was redirected to the
Criminal Division and docketed there on August 13, 2010. Defendant sought a reduced sentence
due to the harm his family was suffering as a result of his behavior and the fact that he
committed a nonviolent drug offense, among other things. The court denied the motion, finding
that defendant had entered into a plea agreement, the court had accepted that agreement, and the
agreement was fair. Defendant appealed from this decision.
Pursuant to 13 V.S.A. § 7042(a), “[a]ny court imposing a sentence under the authority of
this title, within 90 days of the imposition of that sentence . . . may upon its own initiative or
motion of the defendant, reduce the sentence.” See also V.R.Cr.P. 35(b) (same). We indicated
in State v. Desjardins, that for the court to have jurisdiction over such motions, they must be filed
by the defendant, or initiated by the court on its own motion, “within 90 days after sentence or
affirmation of sentence,” although “the hearing on the motion may occur within a reasonable
period of time following the expiration of the 90 day proscription without the court losing
jurisdiction.” 144 Vt. 473, 476 (1984).
In this case, defendant was sentenced on April 16, 2010, and therefore, his motion needed
to be filed by July 15, 2010. He did not file his motion until July 22, 2010. Even giving the
Appellant the benefit of this filing date with the Civil Division, the motion was untimely and
neither the Civil Division nor the Criminal Division court had jurisdiction over the motion. We
affirm the court’s denial of defendant’s motion on these grounds. Even assuming arguendo that
the Criminal Division court did have jurisdiction, it was well within the court’s discretion to
deny the motion on the merits. See State v. King, 2007 VT 124, ¶ 6, 183 Vt. 539 (mem.)
(explaining that “purpose of sentence reconsideration is to give the district court an opportunity
to consider anew the circumstances and factors present at the time of the original sentencing,”
and noting that “sentence reconsideration is of limited utility when a defendant’s original
sentence was based on a plea” (citation omitted)).
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
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