Opinion
No. 92-558
January 12, 1994.
Appeal from District Court of Vermont, Unit No. 2, Chittenden Circuit.
Defendant asks this Court to overrule State v. LaPine, 148 Vt. 14, 527 A.2d 1150 (1987), in which we held that only circumstances and factors present at the time the sentence was originally imposed, not a defendant's conduct and behavior after sentencing, are relevant in a sentence reconsideration proceeding pursuant to 13 V.S.A. § 7042. We again decline to overrule LaPine. See State v. Platt, 158 Vt. 423, 426, 610 A.2d 139, 142 (1992); State v. Roy, 154 Vt. 645, 645, 573 A.2d 698, 698 (1990) (mem.).
Defendant argues that State v. Derouchie, 157 Vt. 573, 600 A.2d 1323 (1991), undermines LaPine. In Derouchie, the trial court took into account the defendant's conduct after imposition of the original sentence in considering the motion for reconsideration. At the sentencing hearing, the judge expressed willingness to re-examine the original sentence after the disposition of the appeal, contingent on the defendant sincerely acknowledging his guilt. We held that LaPine did not apply in that situation because the trial judge at sentencing had invited the defendant to move for reconsideration and had informed the defendant that his situation between sentencing and reconsideration would be relevant. Id. at 577, 600 A.2d at 1325. Defendant argues that the result should be the same whether the judge invites or accepts defendant's offer of post-sentencing information at the reconsideration stage. We disagree.
In Derouchie the sentencing judge expressly recognized that the defendant's acknowledgement of guilt could affect the reconsideration result. Here, there was no invitation by the sentencing judge for evidence of post-sentencing conduct at the reconsideration hearing, or suggestion that such conduct could affect the sentence. LaPine is controlling, and the court did not err in declining to consider the post-sentencing conduct.
Defendant further argues that LaPine does not apply to murder cases because of 13 V.S.A. § 2303(c), which requires the sentencing court to consider certain enumerated aggravating and mitigating factors prior to sentencing. See id. § 2303(c)-(e). Specifically, defendant points to § 2303(e)(7), which includes as a mitigating factor "[a]ny other factor that the defendant offers in support of a lesser minimum sentence." However, the fourteen other aggravating and mitigating factors all speak to matters existent and known at the time of sentencing. See id. § 2303(d)-(e). We see no reason to construe the § 2303(e)(7) factor differently.
Defendant also contends that the original sentence was imposed illegally because the court failed to make written findings as required by 13 V.S.A. § 2303(c). We do not reach this issue, however, because it was not raised in defendant's appeal of his conviction, see State v. Richardson, 158 Vt. 635, 603 A.2d 378 (1992), or in the sentencing reconsideration hearing. See State v. Prue, 138 Vt. 331, 331-32, 415 A.2d 234, 234 (1980) (per curiam) (no consideration of matters first raised on appeal).
Affirmed.