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Rule 32 – Sentence and Judgment

May 14, 2021 | Criminal Procedure, Vermont

(a)Sentence.

(1)Imposition of Sentence. Sentence shall be imposed or deferred without unreasonable delay. Pending imposition or deferment of sentence the court may commit the defendant or continue or alter the conditions of release. Before imposing sentence the court shall:

(A) determine that the defendant and defense counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3);
(B) afford counsel an opportunity to speak on behalf of the defendant; and
(C) address the defendant personally to determine if the defendant wishes to make a statement in his or her own behalf and to present any information relevant to sentencing.

The attorney for the state shall have an equivalent opportunity to speak to the court and to present any information relevant to sentencing.

(2)Notification of Right To Appeal. After imposing or deferring sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed or deferred following a plea of guilty or nolo contendere. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.
(b)Judgment. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence or conditions of deferment thereof. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge, except that if the judge makes a ruling from the bench on the record, the clerk may sign a judgment that reflects the judge’s ruling. The judgment shall then be entered by the clerk forthwith. Such entry by the clerk shall be the entry of judgment for all purposes under these rules and the Rules of Appellate Procedure.
(c)Sentencing Information.

(1)Presentence Investigation, When Made. A presentence investigation shall not be initiated until there has been an adjudication of guilt, unless the defendant consents to such action. The commissioner of corrections shall make the presentence investigation. The probation officer who interviews a defendant as part of a presentence investigation shall, on request, give the defendant’s attorney notice and a reasonable opportunity to attend the interview. The commissioner of corrections shall report to the court before the imposition or deferment of sentence or the granting of probation, except that the court, in its discretion, may dispense with the report, in the following situations:

(A) if the offense is a misdemeanor;
(B) if the defendant has two or more felony convictions;
(C) if the defendant refuses to be interviewed by a probation officer or requests that disposition be made without a presentence report;
(D) if it is impractical to verify the background of the defendant.

A report made prior to an adjudication of guilt shall not be submitted to the court or its contents disclosed to anyone until after such adjudication, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time and may, if the defendant’s consent expressly so states, permit the defendant’s attorney, or a defendant appearing pro se, and the attorney for the state to inspect the report.

(2)Presentence Investigation Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information on his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.
(3)Disclosure.The sentencing court shall disclose to the defendant, his attorney, and the prosecution, all information submitted to it for consideration at sentencing. The presentence investigation report shall be available for inspection by the defendant, his attorney, and the prosecution at least fourteen (14) days prior to sentencing. The report shall also be sent by the court within the same time limit to the defendant’s attorney and the prosecution. Any other information submitted to the court for consideration at sentencing shall be disclosed sufficiently prior to the imposition of sentence as to afford reasonable opportunity for the parties to decide what information, if any, the parties intend to controvert by the production of evidence.
(4)Right to Comment and Offer Evidence.

(A) Prior to imposing sentence, the court shall afford the state, the defendant and his or her attorney an opportunity to comment upon any and all information submitted to the court for sentencing. Any objection to facts contained in the presentence investigation report or to any recommended probation conditions contained therein, shall be submitted, in writing, to the court at least 7 days prior to the sentencing hearing, unless good cause is shown for later objection. A copy of any objections must be provided to the opposing party.
(B) Either party may offer evidence, including hearsay, specifically on any disputed factual issues in open court with full rights of cross-examination, confrontation, and representation. When a defendant objects to factual information submitted to the court or otherwise taken into account by the court in connection with sentencing, the court shall not consider such information unless, after hearing, the court makes a specific finding as to each fact objected to that the fact has been shown to be reliable by a preponderance of the evidence, including reliable hearsay. If the court does not find the alleged fact to be reliable, the court shall either make a finding that the allegation is unreliable or make a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report or other controverted document thereafter made available by the court to the Department of Corrections.
(C) Prior to concluding the hearing and before imposing a sentence, the court must provide opportunity for comment and objection to any probation conditions that it intends to impose that have not been previously noticed in the presentence investigation report or in the written or oral record requests of the parties, or the court’s own statements in the course of the sentencing hearing.
(D) Prior to the sentencing proceeding, the prosecutor shall give notice to the victim by the method provided in Rule 49(a)(2). At sentencing, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding sentencing. In imposing sentence, the court shall consider any views offered at the hearing by the victim. If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding sentencing. If so, the state may present such views through oral or written statements attributed to the victim, and the court shall take those views into consideration in imposing sentence. Upon request of the prosecutor or defendant, for good cause shown, the court may permit the victim to appear by telephone with safeguards appropriate to preserve the record and assure full participation by interested parties. The defendant, the defendant’s attorney and the state may comment on the information provided by or on behalf of the victim. In this subparagraph, if the victim is a minor, incapacitated, incompetent, or deceased, “victim” means family members of the victim as defined in 13 V.S.A. § 5301(2) and, if necessary, designated by the court as provided in 13 V.S.A. § 5318.
(5)Return of Reports. Any copies of the presentence investigation report made available to the defendant or his attorney and the attorney for the state shall be returned to the probation officer immediately following the imposition or deferment of sentence or the granting of probation. Copies of the presentence investigation report shall not be made by the defendant, his counsel, or the attorney for the state.
(d)Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only by a defendant who is not in custody under sentence. The motion must be made prior to or within 30 days after the date of entry of judgment, except that a defendant whose sentence does not include a term of imprisonment may make the motion at any time. If the motion is made before sentence is imposed or deferred, the court may permit withdrawal of the plea if the defendant shows any fair and just reason and that reason substantially outweighs any prejudice which would result to the state from the withdrawal of the plea. If the motion is made after sentence, the court may set aside the judgment of conviction and permit withdrawal of the plea only to correct manifest injustice.
(e)Probation. After conviction of any offense, the defendant may be placed on probation as provided by law.
(f)Revocation of Probation. The court shall not revoke probation except after hearing as provided in Rule 32.1
(g)Restitution. In every case in which a victim has suffered a material loss, the COUlt must determine the amount of restitution, if any, which the defendant must pay.

(1)Hearing; General Procedures. Unless the amount of restitution is agreed to by the parties, a restitution hearing must be held. The court must issue findings either on the record or in writing as to any matters of factual dispute in the determination of the amount of restitution or the defendant’s current ability to pay restitution. The state has the burden of establishing the amount of restitution and a defendant’s ability to pay by a preponderance of the evidence. The court must enter a restitution judgment order establishing the defendant’s restitution obligation. The provisions of subparagraph (c)(4)(A) apply in the conduct of restitution hearings.
(2)Prehearing Disclosures. At least 14 days prior to the restitution hearing, the prosecuting attorney must provide to the defendant a written statement of the amount of restitution claimed and copies of any documents that the state intends to offer in evidence to establish a victim’s material loss and support the claim for restitution. The prosecuting attorney must disclose in writing to the defendant the existence and terms, if known after reasonable inquiry, of any policy of insurance for the losses in issue that would serve to compensate the victim for all or any portion of material loss held by the victim or a patty other than the defendant. The disclosure must include uninsured motorist coverage, if applicable, and it must be made to the defendant at least 14 days prior to the restitution hearing. If the defendant claims that a victim’s losses are not uninsured by reason of the existence of defendant’s own or a third patty’s insurance coverage for the losses in issue, he or she must disclose to the prosecuting attorney in writing the existence and terms of this liability insurance coverage, if known after reasonable inquiry, at least 14 days prior to the restitution hearing.
(3)Ability to Pay. If the defendant intends to raise the issue of inability to pay the amount claimed, either at the time of the restitution hearing or in a restitution payment schedule or both, he or she must disclose such intent in writing to the court and prosecuting attorney at least 14 days prior to the restitution hearing.

Vt. R. Crim. P. 32

Amended Dec. 19, 1973, eff. Jan. 1, 1974; May 1, 1980, eff. July 1, 1980; Dec. 8, 1981, eff. March 1, 1982; June 30, 1982, eff. July 1, 1982; Nov. 30, 1982, eff. Feb. 1, 1983; Jan. 14, 1985, eff. March 15, 1985; July 30, 1985, eff. Sept. 1, 1985; Dec. 8, 1988, eff. March 1, 1989; Feb. 24, 2010, eff. April 26, 2010; Sept. 22, 2010, eff. Nov. 22, 2010; July 14, 2017, eff. Sept. 18, 2017; amended May 04, 2020, eff. July 6, 2020.

Reporter’s Notes-2020 Amendment

Rule 32(c)(4) is amended consistent with the decisions in State v. Lumumba, 2018 VT 40, 207 Vt. 254, 187 A.3d 353, State v. Bostwick, 2014 VT 97, 197 Vt. 345, 103 A.3d 476, and State v. Cornell, 2014 VT 82, 197 Vt. 294, 103 A.3d 469. These decisions address the necessity for procedures requiring parties to object to recommended probation conditions in presentence investigation reports, in addition to factual assertions pertinent to sentence, on grounds that the conditions are not reasonably related to the offense of conviction and thus overly harsh or excessive. The amendment is consistent with, yet not as expansive as, the provisions of Federal Rule of Criminal Procedure 32(f)(1), which requires specific written objection not only to factual assertions pertinent to sentence, but to all material information, sentencing guideline ranges, and policy statements in presentence investigation reports.

In Lumumba, 2018 VT 40, ¶ 28, the Court requested the Criminal Rules Committee to

probation conditions at sentencing. Proposed rules should set forth how the State and defendants must raise and preserve issues. Our recent decisions have required evidence to support specific conditions to show the condition is related to the crime for which a defendant is convicted and necessary for rehabilitation. If a defendant objects to a condition because it does not meet that standard or for another reason that will require evidentiary support for the condition, then the defendant should have to state this position prior to sentencing to enable the State to obtain the necessary evidence.

Subparagraph (c)(4)(A) is amended, consistent with the Court’s direction in Lumumba, to require advance written objection to any recommendations for probation conditions set forth in the presentence investigation report. As reflected in the existing rule, the amendment is intended to provide advance notice of any such objections to enable the parties to secure and present any evidence that would serve to provide record basis either for inclusion of the recommended conditions in the sentence given, or rejection of them by the court.

Subparagraph (c)(4)(A) is also amended to require that written objections to PSI content be submitted to the court at least 7 days prior to sentencing (unless good cause is shown for later objection), rather than the 5 days prescribed by the existing rule. This amendment is intended to render the rule consistent with the “day is a day” method of calculation of time periods of V.R.Cr.P. 45.

Finally, the subparagraph is amended to include an express requirement that copies of any written objections be provided to the opposing party. Timely notice of any objections enables the party opponent to secure and present any evidence necessary to support inclusion or rejection of any factual assertion or recommended probation condition set forth in the PSI.

Part of former (c)(4)(A) has been made into new subparagraph (B).

New subparagraph (c)(4)(C) requires that before pronouncing sentence and concluding the sentencing hearing, the sentencing court must provide opportunity for comment and objection to what are in effect any “unnoticed” conditions of probation. This includes conditions not included in a signed plea agreement acknowledged by the defendant or the subject of request or argument by the parties, that the court, in its discretion, nonetheless determines to be warranted on the sentencing record. This amendment is intended to expressly provide a defendant with an opportunity to articulate objection to conditions of probation that may not have reasonably featured at all in the course of the sentencing record, and thus to preserve claims of error as to purportedly unnoticed or “surprise” conditions, without the necessity of filing a motion for correction of sentence under V.R.Cr.P. 35.

Existing subparagraph (B) is relettered as subparagraph (D).

Reporter’s Notes-2018

Amendment Rule 32(c)(4)(A) is amended to conform its 3-day time period to the contemporaneously amendment of V.R.Cr.P. 45, which adopts the “day is a day” standard for the computation of the running of time periods in criminal cases.

Reporter’s Notes-2017 Amendment

Subdivision 32(g) is added in response to the Comi’s decision in State v. Morse, 2014 VT 84, 197 Vt. 495,106 A.3d 902, to provide specific procedures for conduct of restitution hearings convened pursuant to 13 V.S.A. § 7043. Paragraph 32(g)(1) prescribes the procedure in restitution hearings generally, including allocation of the burden of proof in establishing restitution claims payable to a victim of crime. The paragraph also adopts by reference the provisions of subparagraph 32(c)(4)(A), specifying procedural due process in restitution hearings, and evidentiary standards therein, including admission of hearsay evidence determined by the comi to be reliable. As in sentencing proceedings, the Rules of Evidence do not apply. V.R.E. ll01(b)(3); Morse, 2014 VT 84, ¶¶ 13-19.

Paragraph 32(g)(2) specifies written prehearing disclosures that are required to be made to the defendant by the prosecuting attorney, and by the defendant to the prosecuting attorney. The disclosures to. be made by the prosecuting attorney include a written statement of the amount of restitution claimed, copies of documents intended to be introduced in evidence to support claims of a victim’s material loss and restitution to be ordered, as well as the existence and terms, if known after reasonable inquiry, of any policy of liability insurance of the victim or a third party which would serve to independently compensate the victim apart from an order of restitution. In cases in which a defendant claims that a victim’s material losses are not “uninsured,” 13 V.S.A. § 7043(a)(2), and thus not compensable in restitution by reason of the defendant’s own, or a third pariY’s liability insurance that would serve to cover the loss, he or she must make such written prehearing disclosure to the prosecuting attorney as well. The existence of liability insurance coverage held personally by the victim or the defendant is uniquely and reasonably within their direct knowledge, and the rule contemplates that this infOlmation would be routinely subject to disclosure. Information about other insurance coverage for the losses in issue held by third parties such as family members, friends, or other property owners involved in the losses may not be so readily available. The rule imposes an obligation of reasonable inquiry as to the existence and terms of such other insurance, anticipating disclosure of such information as is reasonably known, to enable the court to render a fully informed decision on the issue of material loss as the term is defined by 13 V.S.A. § 7043(a)(2).

In restitution proceedings, the Court must make findings and orders as to two distinct issues: (1) the amount of the restitution for the victim’s uninsured material losses sustained in consequence of the defendant’s offense; and (2) whether the defendant has the present financial ability to pay the established restitution obligation, either in full, or on a schedule of prospective payments until the obligation is paid in full. 13 V.S.A. § 7043(d). These are two separate issues. A defendant’s financial inability to make restitution payment goes to the second, and has no bearing upon the cOUl1’s determination of the amount of uninsured loss that is subject to a restitution obligation. Paragraph 32(g)(3) requires that if a defendant intends to raise the issue of inability to pay restitution, he or she must provide written notice to this effect to the court and prosecuting attorney at least 14 days prior to the restitution hearing. This disclosure requirement is intended to enable the prosecuting attorney and the cOUl1 to know that evidence may be required on the issue of ability to pay from the defendant or other sources. See 13 V.S.A. § 7043(d)(2); State v. Vezina, 2015 VT 56, 199 Vt. 175,121 A.3d 1195. The amended rule contemplates that a defendant’s failure to provide timely notice may not be construed as a waiver of the right to be heard or to present evidence as to alleged inability to pay restitution. However, an untimely interposed assertion of inability to pay may provide grounds for continuance or such other orders as the cOUl1 deems just under the circumstances.