Summary
The Vermont Supreme Court affirmed dismissal of Gregory Sommer’s motion seeking presentence credit against a consecutive sentence. The court held that the motion was premature because the Department of Corrections had not issued its sentencing calculation, and it further held on the merits that awarding the requested credit would impermissibly create double credit. The court discussed available procedures for challenging sentence-credit calculations, including review under Vermont Rule of Civil Procedure 75 and Vermont Rule of Criminal Procedure 35.
Topics
Practice areas
Questions Presented
- Whether the trial court properly dismissed Sommer's request for presentence credit as premature because the Department of Corrections had not yet issued the Commissioner's official sentencing calculation.
- Whether 13 V.S.A. § 7031(b) required the thirteen months of presentence incarceration to be credited against the minimum of Sommer's second, consecutive sentence.
- Whether incarceration after revocation of community status constituted time that could be credited against both the prior sentence and the consecutive new sentence.
Holdings
- The trial court acted within its discretion in dismissing or deferring consideration of Sommer's motion because it was premature before the Commissioner of Corrections issued the calculation required by 13 V.S.A. § 7044(a).
- Sommer was not entitled to credit the thirteen months of incarceration against the minimum of his second, consecutive sentence because doing so would create impermissible double credit by applying the same time to both the prior sentence and the new sentence.
Key quotations
“Sections 7031 and 7044, read together, do not require the trial court to calculate time served, but rather allow the court to order the DOC to do so.” (¶ 7)
“Community status changes only the place of confinement and is not the equivalent of release.” (¶ 13)
Factual background
Sommer was serving a prior sentence after completing its minimum term and being placed in community status when he was arraigned on eleven new burglary, attempted burglary, unlawful mischief, and larceny charges. His community status was revoked, and he was incarcerated for thirteen months from arraignment until sentencing. After pleading guilty to five counts, he received a six-to-twelve-year sentence consecutive to the prior sentence and sought credit for those thirteen months against the minimum of the second sentence.
Procedural history
Sommer was sentenced on five new counts to six to twelve years, concurrent with one another but consecutive to a prior sentence. Before the Department of Corrections issued its official sentencing calculation, he moved in the trial court for an order awarding thirteen months of credit against the minimum of the second sentence or, alternatively, reducing that minimum. The trial court dismissed the motion, and the Vermont Supreme Court affirmed, while also reaching and rejecting the merits of the credit claim.