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State v. Dean Jeffrey Stearns

Court: Supreme Court of Vermont
Date filed: 2021-06-18
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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.


                                          2021 VT 48

                                         No. 2021-014

State of Vermont                                              Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Windsor Unit,
                                                              Criminal Division

Dean Jeffrey Stearns                                          February Term, 2021


Elizabeth D. Mann, J.

David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for
 Defendant-Appellant.


PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.


        ¶ 1.   COHEN, J. Defendant Dean Jeffrey Stearns appeals the superior court’s dismissal

of his motion for sentence reconsideration as untimely. Concluding that the motion is timely, we

reverse and remand for review on the merits.

        ¶ 2.   In December 2018, defendant pleaded guilty to five counts of voyeurism and two

counts of promoting a recording of sexual conduct. See 13 V.S.A. §§ 2605, 2824. On January 23,

2020, he was sentenced to an aggregate term of ten to fifteen years’ imprisonment, suspended

except five years to serve. Defendant filed a notice of appeal on February 20, 2020, but later

moved to dismiss the appeal. This Court granted the motion to dismiss the appeal by entry order

dated August 28, 2020. Pursuant to 13 V.S.A. § 7042(a) and Vermont Rule of Criminal Procedure
35(b), defendant moved for sentence reconsideration in the superior court ninety days later, on

November 26, 2020. See V.R.Cr.P. 45(a)(1) (outlining method of calculating time).

       ¶ 3.    Section 7042(a) provides:

                Any court imposing a sentence under the authority of this title,
               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 conviction, may upon its own initiative or motion of
               the defendant, reduce the sentence.

13 V.S.A. § 7042(a); see also V.R.Cr.P. 35(b) (containing same substantive language).

       ¶ 4.    The superior court dismissed defendant’s motion for sentence reconsideration

because the motion was filed more than ninety days after the sentence was imposed and, in its

view, this Court’s order dismissing the appeal without affirming on the merits was not an “order

or judgment of the Supreme Court upholding a judgment of conviction.” 13 V.S.A. § 7042(a).

       ¶ 5.    Defendant appeals, arguing that because this Court’s order dismissing the first

appeal left untouched his conviction, the order is an “order or judgment of the Supreme Court

upholding a judgment of conviction.” Id. Defendant thus maintains that he had ninety days

thereafter to move for sentence reconsideration.* The State counters that the plain language of the

statute and rule refers to an order or judgment that affirms the conviction on the merits, not an

order dismissing the appeal.




       *
           Defendant also argues that the ninety-day period started when the mandate of the entry
order issued, rather than when the order itself issued. Although it is undisputed that defendant
filed the motion for reconsideration within ninety days of the issuance of the order itself, he urges
us to consider his mandate argument for the sake of clarity. Because we do not have a concrete
set of facts upon which to analyze the mandate question, or a litigant with an actual stake in the
answer, we do not consider it. See Wood v. Wood, 135 Vt. 119, 121, 370 A.2d 191, 192 (1977)
(observing that prohibition on advisory opinions requires that appellate question “must be a
necessary part of the final disposition of the case to which it pertains” and that “the establishment
of legal doctrine derives from the decision of actual disputes, not from the giving of solicited legal
advice in anticipation of issues”). Mindful of the need for clarity, however, we refer the question
to the Criminal Rules Advisory Committee.
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       ¶ 6.    This Court reviews the superior court’s interpretation of statutes without deference.

State v. Charette, 2018 VT 48, ¶ 6, 207 Vt. 372, 189 A.3d 67. When interpreting a statute, we seek

to carry out the intent of the Legislature. State v. Richland, 2015 VT 126, ¶ 6, 200 Vt. 401, 132

A.3d 702. “[W]e begin with the plain meaning of the statutory language,” and if the Legislature’s

intent is clear from this language, “we enforce the statute according to its terms.” State v. LeBlanc,

171 Vt. 88, 91, 759 A.2d 991, 993 (2000) (quotation omitted). “[I]f the statute is ambiguous, we

ascertain legislative intent through consideration of the entire statute, including its subject matter,

effects and consequences, as well as the reason and spirit of the law.” Harris v. Sherman, 167 Vt.

613, 614, 708 A.2d 1348, 1349 (1998) (mem.). Our review of the court’s interpretation of

procedural rules is similarly nondeferential and proceeds along the same lines as statutory

interpretation to determine the drafters’ intent. State v. Villar, 2017 VT 109, ¶¶ 6-7, 206 Vt. 236,

180 A.3d 588. We are especially conscious that Rule 35 contains the same substantive language

as § 7042 and is based on the statute. Reporter’s Notes, V.R.Cr.P. 35.

       ¶ 7.    We hold, based on the plain language of the statute and rule, as reinforced by their

purpose and effects, that this Court’s entry order dismissing the first appeal and leaving in place

the conviction was an “order . . . of the Supreme Court upholding a judgment of conviction.” 13

V.S.A. § 7042(a); V.R.Cr.P. 35(b). Defendant accordingly had ninety days after the order was

entered to move for sentence reconsideration. See State v. Desjardins, 144 Vt. 473, 476, 479 A.2d

160, 162 (1984) (holding that “90 day time period applies to the initiation or filing of a motion,”

not to trial court’s disposition of motion).

       ¶ 8.    The key language we seek to interpret is “within 90 days after entry of any order or

judgment of the Supreme Court upholding a judgment of conviction.” 13 V.S.A. § 7042(a). The

plain meaning of this language encompasses an order dismissing an appeal that maintains a

conviction in place. The Legislature used capacious language: “any order or judgment.” Id.

(emphasis added). If the Legislature had intended only affirmances on the merits to qualify, there

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would have been no need to include “any order” as an alternative to a judgment. The State’s

interpretation would render “any order” superfluous, contrary to our longstanding presumption

that “all language in a statute . . . is inserted for a purpose.” In re Miller, 2009 VT 36, ¶ 14, 185

Vt. 550, 975 A.2d 1226 (quotation omitted). The Legislature also used the word “upholding,” a

more general word than the legal term of art “affirming.” For example, one dictionary defines

“uphold” as “to give support to; to support against an opponent;” and offers “maintain” as one of

several synonyms.        Uphold, Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/uphold [https://perma.cc/N3GX-D43B]. Another defines the term as to

“confirm or support,” but also as to “maintain,” such as “a custom or practice.” Uphold, Oxford

Lexico Online Dictionary, https://www.lexico.com/en/definition/uphold [https://perma.cc/4VAA-

UPBF]. The meaning of the word “upholding” includes maintaining something in place, such as

a conviction; it is not limited to affirming. See Affirm, Black’s Law Dictionary (11th ed. 2019)

(defining “affirm” as “[t]o confirm, ratify, or approve (a lower court’s judgment) on appeal”). The

combination of “any order” and “upholding” convinces us that the Legislature sought to capture

more than just affirmances on the merits.

        ¶ 9.    The purpose of the sentence reconsideration statute and rule, and the anomalous

consequences of the State’s interpretation, further impel us to this conclusion. Section 7042 and

Rule 35 serve an equitable purpose—“to permit the trial judge to reconsider the sentencing

decision absent the heat of trial pressures and in calm reflection to determine that it is correct, fair,

and serves the ends of justice.” State v. Therrien, 140 Vt. 625, 627, 442 A.2d 1299, 1301 (1982);

see also Desjardins, 144 Vt. at 476, 479 A.2d at 162 (referencing equitable purpose of Rule 35).

The Rules of Criminal Procedure, moreover, “are intended to provide for the just determination of

every criminal proceeding” and “shall be construed to secure . . . fairness in administration.”

V.R.Cr.P. 2. We can scarcely think of a more important goal in the law than ensuring that a person

convicted of a crime receives the appropriate sentence under our multiple-factor sentencing

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process. See State v. Lumumba, 2014 VT 85, ¶ 23, 197 Vt. 315, 104 A.3d 627 (describing

Vermont’s “situational sentencing scheme whereby the court tailors the punishment within the

statutory range to fit the defendant in question,” considering wide range of factors).

       ¶ 10.   The State’s interpretation would frustrate procedural fairness and the just

determination of criminal controversies. In the State’s procedural scheme, a defendant who

declines to appeal a criminal conviction would have ninety days from the imposition of the

sentence to move for sentence reconsideration. One who chooses to appeal and is unsuccessful on

the merits could move for sentence reconsideration within ninety days of this Court’s order of

affirmance. But a defendant who appeals, and after ninety days from the imposition of the sentence

moves in good faith to dismiss the appeal, would be left without recourse to sentence

reconsideration. It is unlikely that the Legislature left the important task of ensuring a proper

criminal sentence turn on such a flimsy distinction.

       ¶ 11.   Additionally, it is conceivable that an appeal may be dismissed for reasons beyond

the defendant’s control. A defendant who suffers involuntary dismissal of the appeal after ninety

days from the imposition of the sentence could lose the opportunity for sentence reconsideration

without fault or remedy. The State’s interpretation would force defendants to see every appeal to

the end, no matter how futile or inadvisable it may become, only to preserve the opportunity for

sentence reconsideration. Or it would force defendants to move for reconsideration in the trial

court first, then appeal in hopes of preserving the motion for review after the case is remanded to

the trial court if the appeal is dismissed. We fail to see what logical purpose such a procedural

scheme would advance. See Rhodes v. Town of Georgia, 166 Vt. 153, 157, 688 A.2d 1309, 1311

(1997) (“We have long held that statutes should not be construed to produce absurd or illogical

consequences.”).




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       ¶ 12.   The State observes that Rule 35 is based on § 7042 and a previous version of

Federal Rule of Criminal Procedure 35. Reporter’s Notes, V.R.Cr.P. 35. When § 7042 was

adopted, Federal Rule 35 provided, in relevant part:

               The court may reduce a sentence within 120 days after the sentence
               is imposed, or within 120 days after receipt by the court of a mandate
               issued upon affirmance of the judgment or dismissal of the appeal,
               or within 120 days after entry of any order or judgment of the
               Supreme Court denying review of, or having the effect of upholding,
               a judgment of conviction.

Menichino v. United States, 542 F.2d 235, 235 n.1 (5th Cir. 1976) (quoting F.R.Cr.P. 35 as in

effect in 1976); see also 1977, No. 251 (Adj. Sess.), § 1 (adding 13 V.S.A. § 7042). The State

points out that the Vermont rule omits “dismissal of the appeal” and “having the effect of

upholding” a conviction. It argues that the Vermont Legislature intentionally omitted these

phrases to exclude the dismissal of an appeal. We disagree.

       ¶ 13.   What we glean from the differences between the Vermont provisions and former

Federal Rule 35 is that the Vermont Legislature sought to achieve the same result as the federal

rule, while rephrasing the language to account for distinctions between the state and federal court

structure. Unlike the state provisions, the federal rule had to account for appellate review by an

intermediate court of appeals and denials of petitions for certiorari by the U.S. Supreme Court.

See Federal Rules of Criminal Procedure, Title 18 Appendix, Rule 35, Notes of Advisory

Committee on Rules—1966 Amendment, https://uscode.house.gov/view.xhtml?path=/prelim@

title18/title18a/node35&edition=prelim [https://perma.cc/QM5G-ZHBZ] (describing need to

amend rule to address interplay between action of courts of appeals and U.S. Supreme Court on

petition for certiorari). Vermont needed a simpler rule. The Vermont Legislature’s choice of

language, “any order or judgment . . . upholding a judgment of conviction,” captures all four

options in the federal rule: “affirmance of the judgment,” “dismissal of the appeal,” “denying

review of” a conviction, and “having the effect of upholding” a conviction. Menichino, 542 F.2d


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at 235 n.1. Had the Legislature intended only affirmances to qualify, it would likely have retained

the federal rule’s language of “affirmance of the judgment.” Id. The Legislature chose broader

language but tailored to Vermont’s court structure. The fact that the state provisions derive from

a rule that clearly allows sentence reconsideration upon affirmance and other procedures that leave

in place a conviction only reinforces our conclusion.

       ¶ 14.   In sum, this Court’s order dismissing defendant’s first appeal, which left in place

the underlying conviction, is an order upholding the conviction as provided in 13 V.S.A. § 7042(a)

and V.R.Cr.P. 35(b). Because defendant moved for reconsideration within ninety days of that

order, the superior court’s dismissal of his motion for sentence reconsideration must be reversed

and the matter must be remanded for review on the merits.

       Reversed and remanded.


                                               FOR THE COURT:



                                               Associate Justice




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