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,
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be made before this opinion goes to press.
2018 VT 74
No. 2017-209
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Criminal Division
Randy Hughs May Term, 2018
William D. Cohen, J.
David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. SKOGLUND, J. Defendant Randy Hughs appeals his sentence to serve two and
one half to five years for his conviction of sexual assault of a minor. He contends that the trial
court erred by: (1) considering his decision to exercise his right to a trial in determining his
sentence; (2) disregarding evidence that treatment in the community would be appropriate; and
(3) failing to consider defendant’s youth as a mitigating factor. We affirm.
¶ 2. On August 25, 2016, eighteen-year-old defendant had sexual intercourse with a
fourteen-year-old minor, C.H., with whom he had been texting for the previous month and a half.
The next day, defendant arranged to have a friend bring a “morning after” pill to C.H. When
C.H.’s mother learned of the incident, she brought C.H. to the police station to file a complaint.
At trial on November 4, 2016, a jury found defendant guilty of sexual assault of a minor under
13 V.S.A. § 3252(c).
¶ 3. At the sentencing hearing, a clinical psychologist testified for defendant. He
noted that defendant scored a moderate-high rating under the actuarial risk-assessment measures
taken by the Department of Corrections. The testifying psychologist observed that these
actuarial tools have an approximately seventy-two to seventy-five percent success rate in
predicting recidivism, which is significantly better than predictions made by clinicians alone. He
further noted, however, that young individuals almost always score at least a moderate-low
rating under this assessment scheme because it measures factors that are unlikely to be present
for younger individuals, such as whether they have lived with a lover for at least two years,
adding to their risk score.
¶ 4. The testifying psychologist discussed the importance of analyzing various
“dynamic changeable factors,” such as “protective factors” and “risk factors,” to improve an
actuarial study’s predictive power for a particular individual. The testifying psychologist noted
that a psycho-sexual evaluation conducted by another psychologist had found four such
“protective factors” that decreased the defendant’s risk level, including appropriate sexual
interests and the absence of physical or mental barriers to treatment. However, the testifying
psychologist could not say that defendant had no barriers to successful community treatment and
noted that the evaluating psychologist had also found some risk factors during the assessment of
defendant. Among these factors was “poor [sexual] risk management,” though the testifying
psychologist observed that the sexual risk management measure is significantly affected simply
because defendant is not yet in treatment. He also acknowledged, as a second risk factor, that
defendant had initially gone “through a period of not doing well under community supervision,”
with the qualification that defendant subsequently had been very cooperative during his time as
an inmate.
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¶ 5. The testifying psychologist also discussed several other considerations, including
defendant’s culpability-minimizing comments made during the prior assessment with the
evaluating psychologist. Though defendant’s mindset was “an issue,” the testifying psychologist
described it as “a pretty easy one in treatment.” He also found defendant’s initial denials to be “a
treatment issue” that was likely resolvable. However, the testifying psychologist stated that he
“wouldn’t minimize” the fact that defendant had gone through four sessions with a professional
to work on impulse-control and boundary issues as a thirteen-year-old only to make a bad
decision five years later.
¶ 6. The testifying psychologist expressed concern that incarcerating a young
defendant with older, more predatory, sex offenders could make defendant worse over the course
of his incarceration. He agreed with the presentence investigation (PSI) that defendant would be
“appropriate for community-based treatment” and “seems to be amenable to treatment.” He
discussed resources and safeguards available for treatment in the community. The testifying
psychologist agreed that defendant would have access to a similar treatment program while
incarcerated.
¶ 7. After the testifying psychologist’s testimony, a victim’s advocate read a statement
prepared by C.H. describing the mental, physical, and emotional effects she had suffered because
of the incident, such as bad grades at school, panic attacks, feeling unsafe at home, alienation
from her parents and peers, and rumors at school.
¶ 8. After the conclusion of the testimony, the trial court sentenced defendant to serve
two and one half to five years and outlined its reasoning from the bench. The court noted that
“punishment is an essential component of this case for the purposes of the effect that it had, that
it was easily avoidable, that it was unnecessary, it was impulsive . . . [defendant] was well aware
of the fact of her age, and he had just previously turned eighteen.”
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¶ 9. The court considered the “need to accommodate the Department [of Corrections]
in risk-reduction programming that’s through the Department’s programming regarding his risk
assessments as outlined by [the testifying psychologist] and included in the reports.” In addition
to providing deterrence to the general public, the court noted that the sentence “gives appropriate
deterrence” to defendant specifically, before observing that “[t]here’s a rehabilitative program”
developed by the Department of Corrections to help defendant “self-manage appropriately to
avoid having to face charges such as this in the future.” The court stated that:
Some cases require more punishment than others, but for the
purposes of this case, you can’t minimize the effect that this case
has had on [C.H.’s] family and going forward with the case,
pursuing it, testifying and—which she did not mention in her
statement, she never mentioned the effects that it had on her
personally.
¶ 10. On appeal, defendant argues that the sentencing court punished defendant for
exercising his right to trial, ignored the recommendation of the testifying psychologist, and failed
to consider important mitigating factors when fashioning a sentence.
¶ 11. Our review of sentencing matters is limited, and “[a]bsent exceptional
circumstances, we will defer to the court’s judgment so long as the sentence is within the
statutory limits and was not based on improper or inaccurate information.” State v. Lumumba,
2014 VT 85, ¶ 22, 197 Vt. 315, 104 A.3d 627 (quotation omitted).
¶ 12. Defendant first argues that the sentencing judge’s remarks demonstrate that the
court impermissibly punished defendant for exercising his right to take his case to trial.
Defendant is guaranteed the constitutional right to a trial, and “to punish a person because he has
done what the law plainly allows him to do is a due process violation of the most basic sort.”
United States v. Goodwin, 457 U.S. 368, 372 (1982) (quotation omitted); see also United States
v. Hutchings, 757 F.2d 11, 14 (2d Cir. 1985) (“The augmentation of sentence based on a
defendant’s decision to stand on his right to put the Government to its proof rather than plead
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guilty is clearly improper.” (quotations omitted)). This principle is so fundamental to our legal
system, that even the “perception—if not the actuality” of its abrogation should be avoided to
prevent lasting damage to “the public’s perception of the inherent fairness of the criminal justice
system.” State v. Elson, 91 A.3d 862, 898 (Conn. 2014).
¶ 13. Despite the well-established nature of this principle, this Court has not yet
expressly adopted an analysis for determining when a court’s sentencing remarks indicate an
unconstitutional infringement upon a criminal defendant’s right to a trial. This Court has,
however, previously upheld a sentence by looking to the remarks surrounding the contested
language, thereby rejecting a rule that would per se invalidate a sentence based on comments
containing any words implicating the right to a trial. State v. Percy, 158 Vt. 410, 421, 612 A.2d
1119, 1126-1127 (1992). In Percy, the sentencing court had stated that:
[The victim] and her family have experienced trauma, and that
trauma . . . continues to this date. It’s been a full decade, during
which [they] have had to live day-to-day with this situation. The
delay, of course, is not your fault. You exercised the rights which
are available to you, no one in any way wishes to deny you those.
Id. at 421, 612 A.2d at 1126. The sentencing court later noted that “the victim does continue to
suffer the effects of the defendant’s crimes to this day. . . . This ongoing anguish is separate from
any distress resulting from the defendant’s exercise of his appellate rights.” Id. Relying on a
holistic reading of the record, this Court held that the sentencing “court’s remarks dispel any hint
of [vindictive sentencing]” that might have otherwise rendered the sentence invalid under a more
inflexible per se approach. Id.
¶ 14. We now make explicit what was implicitly held in Percy and review the totality of
the record when searching for the presence of vindictive sentencing. This approach mirrors that
taken by a majority of federal and state jurisdictions that have examined the issue. See United
States v. Tracy, 12 F.3d 1186, 1202 (2d Cir. 1993); Frank v. Blackburn, 646 F.2d 873, 884-85
(5th Cir. 1980); United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir. 1973); United States
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v. Medina-Cervantes, 690 F.2d 715, 716-17 (9th Cir. 1982); State v. Kelly, 770 A.2d 908, 947
(Conn. 2001); Santana v. State, 677 So. 2d 1339, 1340 (Fla. Dist. Ct. App. 1996); State v.
Brown, 951 P.2d 1288, 1299 (Idaho Ct. App. 1998); State v. Eastman, 1997 ME 39, ¶ 15, 691
A.2d 179, 184; Mitchell v. State, 971 P.2d 813, 820-21 (Nev. 1998) (overruled on other grounds
by Sharma v. State, 56 P.3d 868, 872 (2002)); State v. Bonilla, 985 P.2d 168, 172 (N.M. Ct. App.
1999); State v. Fitzgibbon, 836 P.2d 154, 157 (Or. Ct. App. 1992); State v. Tiernan, 645 A.2d
482, 487-88 (R.I. 1994). We do not join the minority of jurisdictions in using a per se approach
to invalidate sentences associated with remarks implicating the right to trial. See Hess v. United
States, 496 F.2d 936, 938 (8th Cir. 1974); Johnson v. State, 336 A.2d 113, 117-18 (Md. 1975).
¶ 15. Here, the sentencing court considered “the effect that this case has had on [C.H.’s]
family and going forward with the case, pursuing it, testifying” and went on to say that
“punishment is an essential component of this case for the purposes of the effect that it had, that
it was easily avoidable, that it was unnecessary, it was impulsive and . . . he was well aware of
the fact of her age . . . .” These comments are ambiguous at best, raising the question of whether
the sentencing court’s reference to the effects of “going forward with the case” was describing
defendant’s choice to go to trial or C.H.’s family’s decision to report the incident, contributing to
the overall effect the actual crime had on C.H. and her family throughout the non-trial-related
legal proceedings. Because the sentencing court’s comments specifically referred to “testifying,”
we find it unlikely that the sentencing court was discussing actions of defendant, who did not
testify at trial. The court’s statement that “it was easily avoidable” could be read as referencing
defendant’s exercise of his trial rights or his decision to commit the crime. However, comments
made about an “impulsive” decision made while “well aware of the fact of her age” more likely
imply defendant’s commitment of the crime than subsequent legal decisions. In context of the
totality of the sentencing remarks, these comments can be more fairly read to reflect the
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consequences of legal decisions made on behalf of C.H. and defendant’s acts at the time of the
incident than an exercise of his constitutional rights.
¶ 16. While conducting a similar inquiry, the Connecticut Supreme Court recently
refined its review of the totality of the sentencing record using a three-part test. This test
operates by: (1) comparing the length of the sentence given with the statutory maximum and that
which was recommended by the prosecution; (2) asking whether the “vast majority” of the trial
court’s sentencing remarks focused on legitimate sentencing considerations; and (3) considering
the context of the challenged comment. Elson, 91 A.3d at 883-84.
¶ 17. Applying that analysis here, the sentence to serve two and one half to five years
imposed on defendant was significantly less than the statutory maximum of twenty years, or the
four to sixteen years recommended by the State. “The trial court’s decision to sentence the
defendant to a term of imprisonment shorter than both the maximum sentence and what the state
had recommended indicates that the trial court did not intend to penalize the defendant for
exercising his right to a trial.” Id. at 884.
¶ 18. Additionally, the vast majority of the sentencing remarks concerned legitimate
considerations, such as risk-reduction, deterrence, and the effect of the crime on C.H. during her
high school years. Only the word “testifying” unambiguously implicates a trial; while the
legitimacy of the remaining comments reassures us that the offending word resulted from a
merely rhetorical, rather than substantive, oversight.
¶ 19. Finally, the context of the aberrant comment further assuages any lingering doubts
as to the sentencing court’s intentions. The sentencing court was describing the effect that the
offense had on C.H. and her family, including “the circumstances of living in a small town where
the—this event was, I suspect, well known.” The sentencing court responded to the argument
that defendant had already spent his eighteenth year incarcerated by noting “the effect that this
has had on [C.H.] over her fourteenth, fifteenth, and sixteenth year . . . the high school years.” In
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context, the court’s comments indicate only a larger consideration of the effect of the crime in
general on C.H., rather than that of defendant’s choice to go to trial in particular.
¶ 20. Just as the U.S. Supreme Court admonishes that “there are no perfect trials,”
neither may we expect that all sentencing hearings be completely free from rhetorical blemishes.
Brown v. United States, 411 U.S. 223, 232 (1973). Here, because the imposed sentence was
significantly less than the maximum allowed by statute or recommended by the state—and
because only a single word, in the context of describing the effect of the crime on the victim
generally, of the three-page transcript of remarks implicated a trial—we hold that the sentencing
court did not impermissibly punish defendant for exercising his right to take his case to trial.
¶ 21. Next, defendant argues that the sentencing court impermissibly disregarded the
opinion of the testifying psychologist and findings of the PSI, both of which stated that defendant
would be “appropriate for community-based treatment.” There is no evidence, however, that the
court relied on improper or incorrect information in fashioning its sentence.
¶ 22. The testifying psychologist discussed rehabilitation only and was equivocal when
outlining defendant’s prospects for success in either a prison or a community setting. While
describing defendant as “appropriate” for treatment in the community, he noted the existence of
similar treatment programs in the prison setting. He discussed potential hurdles to success for
defendant in both settings, such as defendant’s previous “period of not doing well under
community supervision” and the potential for regression while incarcerated with older, more
predatory, sex offenders. The testifying psychologist did not make an explicit recommendation
between the two options.
¶ 23. The sentencing court could have reached its decision by a myriad of acceptable
means. The trial court might have agreed with the testifying psychologist that defendant was
“appropriate” for treatment in the community, but found defendant to be even more appropriate
for treatment while incarcerated. The court might also have simply disagreed with the testifying
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psychologist’s analysis. Finally, the court might have found that, though a viable community-
based option existed for rehabilitative purposes, punitive and deterrent considerations mandated
incarceration. All are permissible uses of the sentencing court’s discretion.
¶ 24. The mere fact that a viable community-based treatment option exists does not
render an alternative sentence, based on legitimate sentencing goals, invalid. Here, the
sentencing court, in addition to weighing rehabilitative options discussed by the testifying
psychologist, expressly considered the need to punish defendant for the suffering caused to C.H.,
as well as to deter defendant and others from similar violations in the future. The sentencing
court considered a variety of legitimate goals, of which the rehabilitative objectives discussed by
the testifying psychologist was only one. The sentencing court did not abuse its discretion in
opting for a sentence to serve.
¶ 25. Finally, defendant argues that the sentencing court failed to consider mitigating
factors while fashioning his sentence. The court is required to “consider 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). “[T]he court [has] an obligation under Vermont’s individualized sentencing process
to examine defendant’s case and to consider the consequences of his particular situation in
fashioning a sentence.” Lumumba, 2014 VT 85, ¶ 27. However, “a trial court’s failure to
discuss each mitigating factor in its sentencing opinion does not give rise to an automatic
inference that the factors absent from the opinion were not considered.” State v. Obermiller,
2016-Ohio-1594, ¶ 125, 63 N.E.3d 93; see also United States v. Amedeo, 487 F.3d 823, 833
(11th Cir. 2007) (“[W]e cannot say that the court’s failure to discuss this ‘mitigating’ evidence
means that the court erroneously ‘ignored’ or failed to consider this evidence in determining [the
defendant’s] sentence.”); People v. Oberreuter, 251 Cal. Rptr. 522, 524 (Ct. App. 1988)
(presuming, “[a]bsent an explicit statement by the trial court to the contrary,” “the court properly
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exercised its legal duty to consider all possible mitigating and aggravating factors”). But see
State v. Roberts, 2013-Ohio-4580, ¶ 56, 998 N.E.2d 1100 (inferring complete failure to consider
mitigating factors from trial judge’s failure to mention defendant’s allocution when it was “only
relevant matter that was specifically placed before the trial court as mitigation”).
¶ 26. We have remanded sentences for failing to consider individual factors in
exceptional circumstances. Lumumba, 2014 VT 85, ¶ 25 (reversing for resentencing where
sentencing court explicitly refused to consider, or even attempt to understand, interaction
between internal Department of Corrections operating procedures and defendant’s immigration
status, resulting in what would effectively be determinate life sentence). Here, the sentencing
court made no explicit refusal to consider any relevant mitigating factors. In fact, the court did
mention that defendant “had just previously turned eighteen” after describing his “impulsiv[ity]”
and the age of C.H. Neither are there exceptional circumstances inflating this sentence far
beyond its expected reach. Thus, the trial court’s failure to comment on mitigating factors such
as the defendant’s youth or past history as a victim of abuse does not a imply a failure to
consider them or an abuse of discretion.
¶ 27. Just as we have said that “the court is not obligated to explicitly address each
factor” regarding the “legitimate goals of criminal justice,” neither does the simple failure to
address a particular mitigating factor doom a sentence. State v. Allen, 2010 VT 47, ¶ 14, 188 Vt.
559, 1 A.3d 1003 (mem.) (quoting State v. Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428, 852 A.2d
567). While “public confidence in the integrity and fairness of our judiciary” urges “trial courts
to place on the record, either orally or in writing, what enhancement or mitigating factors were
considered,” State v. King, 432 S.W.3d 316, 322 (Tenn. 2014) (quotation omitted), we cannot
reduce the sentencing process to a purely formulaic exercise. Sentencing remarks, however
insightful, can never provide a complete accounting of each factor, weight, and calculation
reflected upon by a judge. Neither could a mechanical recitation of an ever-expanding checklist
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of factors provide us with the desired degree of surety. Within limits, we must rely upon the
discretion and judgment of the sentencing judge, as we do here.
¶ 28. Viewing the totality of the sentencing remarks, we are not convinced that the
sentencing court improperly punished defendant for exercising his right to go to trial. Neither do
we conclude that the sentencing court ignored evidence before it regarding the efficacy of
community-based treatment, or failed to consider mitigating factors when fashioning a sentence.
Affirmed.
FOR THE COURT:
Associate Justice
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