State v. Edwin Rodriguez

Court: Supreme Court of Vermont
Date filed: 2023-11-09
Citations: 2023 VT 59
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Combined Opinion
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
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before this opinion goes to press.


                                           2023 VT 59

                                         No. 22-AP-260

State of Vermont                                               Supreme Court

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

Edwin Rodriguez                                                September Term, 2023


David R. Fenster, J.

Ian C. Sullivan, Rutland County State’s Attorney, and Arthur O. Brown, Deputy State’s Attorney,
 Rutland, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and A. Alexander Donn, Appellate Defender, Montpelier,
 for Defendant-Appellant.


PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Dooley, J. (Ret.),
         Specially Assigned


        ¶ 1.   COHEN, J. Defendant appeals from the criminal division’s denial of his motion

for sentence reconsideration. Defendant argues that the trial court failed to adequately consider

mitigating factors and improperly relied on prior uncharged conduct. We affirm.

        ¶ 2.   In December 2018, defendant was charged with aggravated domestic assault under

13 V.S.A. § 1043(a) and related criminal counts for physically assaulting complainant, who was

his then-romantic partner. After defendant pleaded not guilty, the trial court ordered defendant to

be held without bail.
       ¶ 3.    While awaiting trial, defendant remained incarcerated throughout the COVID-19

pandemic and unsuccessfully sought to be released on bail based on health concerns arising from

conditions of his confinement. At a change-of-plea hearing in December 2021, defendant pleaded

guilty to one count of aggravated domestic assault in the first degree pursuant to 13 V.S.A.

§ 1043(a)(1) and one count of domestic assault pursuant to 13 V.S.A. § 1042.1 As part of that plea

agreement, the State agreed to a cap of twelve years of incarceration.

       ¶ 4.    In advance of his sentencing hearing, defendant submitted a sentencing

memorandum in which he sought a sentence of four-to-eight years, all suspended but four years to

serve, with a ten-year term of probation with certain conditions. Defendant referenced several

mitigating factors in support of his proposed sentence. He asserted that his lengthy pretrial

incarceration consisted of punitive conditions such as constant lockdowns, extended periods of

isolation, and deficient medical treatment after contracting COVID-19. Defendant also cited to

his work as a law librarian during his pretrial detention, letters of support from his supervisor and

mother, and a psychological evaluation by a clinical psychologist identifying defendant as an

excellent candidate for behavioral therapy and counseling. Defendant stated his desire to relocate

to Massachusetts where he could rely on familial support from his mother, an educator, and sister,

a nurse. He further sought to have supervision of his post-incarceration sentence transferred to

Massachusetts.

       ¶ 5.    In April 2022, the trial court held a sentencing hearing during which it took

evidence and heard from three witnesses. First among those witnesses was defendant’s expert, a

clinical psychologist, who testified about defendant’s candidacy for cognitive behavioral therapy

and supportive counseling. A Department of Corrections worker testified briefly about treatment



       1
         Defendant was also charged with, and pleaded guilty to, another count of domestic assault
under 13 V.S.A. § 1042 which arose out of a separate incident. That charge is not at issue in this
appeal.
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options in the correctional setting. Finally, complainant testified at length about her history with

defendant, including the toll of his physically and mentally abusive conduct.

       ¶ 6.    In her testimony, complainant detailed three instances of prior violence she suffered

at the hands of defendant. In one instance, defendant threw an object at complainant, forced her

back into the house, and placed her in a bedroom with her dog. He then told complainant that,

during the five minutes it would take for him to retrieve a pipe, she needed to decide whether she

or the dog would die. In another episode, defendant broke into the home of complainant’s mother

where complainant was sleeping, woke complainant up, and proceeded to strangle her.

Complainant testified about a third event where defendant struck complainant with such force that

he broke complainant’s orbital socket. She testified about the resulting trauma from defendant’s

violence and the reasons why she did not report those prior instances to police. Counsel for

defendant cross-examined complainant about her testimony on defendant’s prior unreported and

uncharged violent conduct, as well as other matters.

       ¶ 7.    During a colloquy regarding defendant’s objections to the presentence investigation

report, the trial court acknowledged the State’s request that the court independently evaluate the

evidence presented by complainant regarding prior uncharged conduct for sentencing purposes.

Defense counsel agreed to that procedure. During closing arguments, defense counsel reiterated

the mitigating factors set forth in defendant’s sentencing memorandum. Among those were

defendant’s childhood trauma, his familial support in Massachusetts, his candidacy for behavioral

therapy, and his work during pretrial detention. Defense counsel also asked the court to consider

the circumstances of defendant’s pretrial detention during the COVID-19 pandemic.

       ¶ 8.    After hearing defendant’s statement, the trial court evaluated the pertinent factors

to determine an appropriate sentence. In doing so, it considered not only defendant’s “loving and

supportive family,” but also his “significant prior history of criminal convictions” including

kidnapping, aggravated assault, and other offenses. While the court noted the supportive letter

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from defendant’s work supervisor, it also considered disciplinary reports filed against defendant

during previous instances of incarceration. The court also recognized defendant’s acceptance of

responsibility and remorse for his conduct. And it acknowledged the need to consider defendant’s

lengthy period of pretrial incarceration during the pandemic, which “was unlike anything that we

have ever seen.” The court also recounted complainant’s testimony of defendant’s “lengthy

history of violence against her” and the three prior uncharged incidents that complainant described

in detail. It found, by a preponderance of the evidence, that those three incidents occurred.

       ¶ 9.    After weighing these factors, the trial court concluded that a split sentence as sought

by defendant was “simply not appropriate under the circumstances.” The court thus imposed an

effective sentence of nine to twelve years of imprisonment.

       ¶ 10.   Defendant timely filed a motion for sentence reconsideration under 13 V.S.A.

§ 7042. Defendant asked the court to reconsider its reliance on the prior uncharged violent

conduct, arguing that those instances were not proven by a preponderance of the evidence and

were afforded too much weight. He further argued that the court should have placed more weight

on the mitigating factors including the difficult circumstances of his pretrial detention during the

pandemic.

       ¶ 11.   The trial court denied defendant’s motion.         It explained that complainant’s

testimony about defendant’s long history of violence against her was credible and that the three

specific instances detailed by complainant had been proven by a preponderance of the evidence.

According to the court, the State was not required to provide corroborating evidence to satisfy that

evidential burden, and the court reiterated its findings to that end. As for the mitigating factors,

the court considered the testimony by the clinical psychologist, the letters in support of defendant,

defendant’s remorse and acceptance of responsibility, and defendant’s incarceration during the

pandemic. But the court stressed that these factors were outweighed by other sentencing factors



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such as defendant’s prior convictions and his lengthy history of violence against complainant. This

appeal followed.

       ¶ 12.   We review a denial of a motion for sentence reconsideration for abuse of discretion.

State v. Stearns, 2022 VT 54, ¶ 6, __ Vt. __, 288 A.3d 173. Under 13 V.S.A. § 7042, a trial court

has “broad discretion to determine which factors to consider during sentence reconsideration.” Id.

The purpose of sentence reconsideration is to “allow the trial court to reflect on whether the initial

sentence is ‘unwise or unjust’ while considering ‘such factors as it believes are relevant.’ ” Id.

¶ 12 (quoting State v. Dean, 148 Vt. 510, 513, 536 A.2d 909, 912 (1987)).

       ¶ 13.   Defendant first argues that the trial court effectively ignored the circumstances of

his pretrial detention during the height of the COVID-19 pandemic. He additionally contends that

the court failed to adequately consider other mitigating factors in his favor while placing undue

weight on his prior uncharged violent conduct. We are unpersuaded.

       ¶ 14.   When sentencing a defendant, a trial court is obligated to consider relevant factors

including the nature and circumstances of the crime, the history and character of the defendant, the

need for treatment, and the risk they pose to themselves, others, and the community at large. 13

V.S.A. § 7030(a) (providing that sentencing court must consider these factors). In imposing a

sentence that is tailored to a particular defendant, a court may also consider other relevant factors

as offered by the State and the defendant. See State v. Sullivan, 2018 VT 112, ¶ 7, 208 Vt. 540,

200 A.3d 670. The nature of defendant’s pretrial incarceration during the COVID-19 pandemic is

one such individual factor that may warrant careful consideration in fashioning an appropriate

sentence. Cf. United States v. Brown, 78 F.4th 122, 132 (4th Cir. 2023) (reversing sentence, in

part, based on length of sentence in conjunction with punitive prison conditions imposed during

COVID-19 pandemic). A trial court appropriately considers these “unique” circumstances in

weighing relevant factors when crafting a sentence. See Sullivan, 2018 VT 112, ¶ 6.



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       ¶ 15.   Contrary to defendant’s position, the trial court did not fail to consider the

circumstances of his pretrial detention during the pandemic. It accounted for the fact that

defendant “has been incarcerated for a lengthy period of time during the pandemic” which, as the

court acknowledged, “was unlike anything that we have ever seen.”             And in its denial of

defendant’s motion for sentence reconsideration, the court explained that it considered defendant’s

incarceration during the pandemic.

       ¶ 16.   Thus, the underlying record establishes that the trial court did consider the nature

of defendant’s pretrial detention during the pandemic.2 It was not required to engage this factor at

an unspecified level of detail. Cf. State v. Hughs, 2018 VT 74, ¶ 27, 208 Vt. 44, 194 A.3d 1181

(noting that “the simple failure to address a particular mitigating factor” does not “doom a

sentence”). Nor was the court obligated to address this factor for a second time when it ruled on

defendant’s motion for sentence reconsideration. State v. King, 2007 VT 124, ¶ 6, 183 Vt. 539,

944 A.2d 224 (mem.) (“The trial court has wide discretion in determining what factors to consider

during sentence reconsideration.”); see also Stearns, 2022 VT 54, ¶ 12 (explaining that court is not

required to engage in “wholesale review” of factors in determining motion for sentence

reconsideration).




       2
          In support of his argument, defendant offers a rule where a court should provide two days
credit towards a sentence for each day that a defendant spent in pretrial detention during the
COVID-19 pandemic. We decline to adopt such a broad mandate. It is well-settled that a trial
court’s primary goal in sentencing is to “fashion an individualized sentence that is fair and just
according to all the facts and circumstances of that unique case.” Sullivan, 2018 VT 112, ¶ 6
(emphasis added). Adopting defendant’s proposed rule would undermine the trial court’s role in
assessing the circumstances unique to defendant’s pretrial incarceration and, in turn, interfere with
that court’s obligation to impose an individualized sentence. But even if we were so inclined, the
laws and rules governing credit towards sentencing are controlled by the Legislature and the
Department of Corrections, not this Court. See 13 V.S.A. §§ 7031, 7044; see also State v.
Kimmick, 2007 VT 45, ¶ 15, 181 Vt. 635, 928 A.2d 489 (refusing to require application of “good-
time credit” towards sentencing “in the absence of any clear legislative intent to impose such a
requirement”).
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       ¶ 17.   In addition to the unique circumstances of defendant’s pretrial detention, the trial

court explicitly considered the other mitigating factors offered by defendant. Those factors

included defendant’s familial support in Massachusetts, the testimony and letter from the clinical

psychologist, a letter of support from his work supervisor, his sincere remorse and acceptance of

responsibility for his actions, his lack of disciplinary records during his pretrial detention, and his

need for treatment and rehabilitation. But the court found that the mitigating factors were

outweighed by the nature of the offense at issue, defendant’s numerous prior convictions for

violent conduct, and his history of violence against complainant. As already noted, the court found

by a preponderance of the evidence that defendant had on three previous occasions committed acts

of violence against complainant, resulting in complainant being terrified by his potential release

from prison.    Balancing these factors, the court concluded that a significant sentence was

warranted.

       ¶ 18.   As the court explained in denying defendant’s motion for sentence reconsideration,

it found that the aggravating factors outweighed those presented by defendant. Although it was

not required to, the court detailed in that decision the precise factors that it weighed in sentencing

defendant. While defendant challenges the particular weight that the court afforded each factor,

that function is within the exclusive province of a trial court for sentencing purposes. See State v.

Webster, 2017 VT 98, ¶ 48, 206 Vt. 178, 179 A.3d 149 (noting that whether different judge may

have “weighed the sentencing factors differently” does not constitute abuse of discretion); State v.

Hinton, 2020 VT 68, ¶ 23, 213 Vt. 1, 239 A.3d 246 (holding that court did not abuse discretion

where it weighed sentencing factors and engaged in thorough analysis of those factors). The record

reveals that the court did not abuse its discretion in doing so.

       ¶ 19.   Defendant also asserts that the trial court improperly relied on prior uncharged

conduct in sentencing defendant. Specifically, he contends that the court’s reliance on the three

violent episodes of prior uncharged conduct described by complainant at the sentencing hearing,

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see supra, ¶ 6, violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution. Defendant did not raise these constitutional claims below, and he does not

now argue on appeal that they should be reviewed for plain error. Accordingly, we decline to

address these claims, which defendant raises for the first time on appeal.3 See, e.g., State v.

Hinchliffe, 2009 VT 111, ¶ 34, 186 Vt. 487, 987 A.2d 988 (declining to address purported

constitutional vagueness and overbreadth argument first raised on appeal absent plain-error

argument).

       Affirmed.

                                               FOR THE COURT:



                                               Associate Justice




       3
           Although we do not reach the merits of defendant’s constitutional claims, we note that
the trial court found complainant’s testimony to be credible and highly probative. It further found
her testimony proved the three instances of prior uncharged conduct by a preponderance of the
evidence, and it made that finding after defense counsel cross-examined complainant. Those
determinations are reserved solely for the trial court. State v. Hagen, 151 Vt. 64, 65, 557 A.2d
493, 494 (1989). Accordingly, the court could properly rely on those three instances of prior
uncharged conduct for purposes of sentencing. See State v. Grega, 168 Vt. 363, 386, 721 A.2d
445, 461 (1998) (“Criminal conduct can be used to enhance a sentence at a sentencing hearing
regardless of whether the defendant has been charged with[] . . . [that] conduct, as long as it has
been proven at the hearing by a preponderance of the evidence.”); State v. Drake, 150 Vt. 235,
236, 552 A.2d 780, 781 (1988) (reaffirming that uncharged conduct properly considered where
victim testifies under oath and is subject to cross-examination).
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