Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2011-199 

MARCH TERM, 2012 

State of Vermont } APPEALED FROM: 

} 

} Superior Court, Windham Unit, 

 v. } Criminal Division 

} 

} 

Edwin Herbert Martin } DOCKET NO. 1279-10-09 Wmcr 

 

 Trial Judge: David T. Suntag 

In the above-entitled cause, the Clerk will enter: 

Defendant pled guilty to driving under the influence, third or subsequent offense, with a 

habitual offender enhancement. The trial court sentenced him to a minimum sentence of five 

years and a maximum of life. Defendant appeals the sentence, arguing that the court abused its 

discretion because he will be unable to receive substance abuse or other programming during the 

incarcerative portion of his sentence. We affirm. 

Defendant was charged with DUI, third or subsequent offense, in October 2009. 

Defendant had eight prior convictions for DUI, six of which were felony convictions. Defendant 

committed his ninth DUI—the charge giving rise to the sentence defendant now appeals—while 

on furlough for other offenses, including prior DUI convictions. Including his prior DUI 

convictions, defendant had eleven prior felony convictions and twenty-two prior misdemeanor 

convictions. Pursuant to a plea agreement, which the trial court accepted, defendant pled guilty 

to DUI, third offense or subsequent, with a habitual offender sentence. As part of the agreement, 

the State was capped at requesting a sentence of ten years to life. 

At the sentencing hearing, the State asked the court to impose a sentence of ten years to 

life, arguing that such a long minimum term was necessary to protect public safety. Defense 

counsel argued in favor of a sentence of two to fifteen years, and emphasized that defendant was 

suffering from advanced lung cancer. 

The court determined that a sentence of five years to life was appropriate. The court 

observed that it had never seen another defendant who had more DUI convictions than this 

particular defendant. While it recognized that alcoholism was a disease, the court noted that 

defendant repeatedly failed to avoid situations in which his judgment would be compromised and 

he would drive drunk. Over the course of defendant’s thirty year criminal record, the court 

explained, the Department of Corrections had provided defendant with every conceivable 

program available. He had participated in furlough programs, where he was placed in a support 

community or sober home, and at least three intensive substance abuse (ISAP) programs. 

Defendant had also participated in a substance abuse program while incarcerated, and he had 
2 

received community-based treatment as well. In the end, none of these programs stopped 

defendant from repeatedly driving while intoxicated. 

The court indicated that its primary concern was to protect the public and prevent 

defendant from killing someone while driving drunk. Defendant had shown that he was 

incapable of controlling his own behavior, and the court found incarceration necessary. In 

reaching its decision, the court recognized that the Department of Corrections would not likely 

be able to provide defendant substance abuse treatment during his incarceration. Nonetheless, 

the court found that its obligation to protect the public was paramount, and, given defendant’s 

track record, lifetime supervision was warranted. As to the minimum sentence, the court 

reasoned that it did not want the minimum to be too short because it feared that defendant would 

get out, drink and drive again, and hurt somebody. The court ultimately imposed a five year 

minimum sentence in this case, noting that the minimum represented a step up from defendant’s 

prior DUI sentences. Defendant appealed from this decision. 

On appeal, defendant argues that the court abused its discretion by sentencing him to a 

five year minimum. Even with credit for time served and the possibility of furlough, the 

sentence guaranteed some years of incarceration during which time defendant would not be able 

to go through substance abuse counseling. We review a trial court’s sentencing decision with 

considerable deference to the trial court’s substantial discretion in this realm. See e.g., State v. 

Corliss, 168 Vt. 333, 341 (1998) (“Trial courts have wide discretion in imposing penalties, and 

we will not reverse unless the court strays from statutory limits or abuses its discretion.”); see 

also State v. Cyr, 141 Vt. 355, 358 (1982) (“In sentencing we defer to the lower court and will 

not review sentences within the statutory limits absent exceptional circumstances.”). 

As reflected above, the trial court was aware of the fact that defendant would not have 

access to substance abuse treatment while incarcerated; the court determined that the protection 

of the public overrode that concern and that, given defendant’s record, incarceration was 

necessary to protect the public. The trial court carefully considered the evidence before it and 

properly exercised its discretion. We find no abuse of discretion. 

Affirmed. 

 

BY THE COURT: 

_______________________________________ 

Paul L. Reiber, Chief Justice 

_______________________________________ 

John A. Dooley, Associate Justice 

_______________________________________ 

Beth Robinson, Associate Justice