Note: Decisions of a three-justice panel are not t o 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 influenc e, third or subsequent offense, with a

habitual offender enhancement. The trial court sen tenced 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 sub stance 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 t he sentence defendant now appeals—while on furlough for other offenses, including prior DUI convictions. Including his prior DUI convictions, defendant had eleven prior felony conv ictions and twenty-two prior misdemeanor convictions. Pursuant to a plea agreement, which t he trial court accepted, defendant pled guilty to DUI, third offense or subsequent, with a habitua l offender sentence. As part of the agreement, the State was capped at requesting a sentence of te n years to life.

At the sentencing hearing, the State asked the cour t to impose a sentence of ten years to life, arguing that such a long minimum term was nec essary to protect public safety. Defense counsel argued in favor of a sentence of two to fif teen 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 w ho had more DUI convictions than this particular defendant. While it recognized that alc oholism 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 provid ed 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 intensi ve substance abuse (ISAP) programs. Defendant had also participated in a substance abus e program while incarcerated, and he had2

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 th e Department of Corrections would not likely be able to provide defendant substance abuse treatm ent 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 mini mum represented a step up from defendant’s prior DUI sentences. Defendant appealed from this decision.

On appeal, defendant argues that the court abused i ts discretion by sentencing him to a five year minimum. Even with credit for time serve d and the possibility of furlough, the sentence guaranteed some years of incarceration dur ing which time defendant would not be able to go through substance abuse counseling. We revie w a trial court’s sentencing decision with

considerable deference to the trial court’s substan tial discretion in this realm. See e.g., State v. Corliss, 168 Vt. 333, 341 (1998) (“Trial courts hav e wide discretion in imposing penalties, and we will not reverse unless the court strays from st atutory limits or abuses its discretion.”); see also State v. Cyr, 141 Vt. 355, 358 (1982) (“In sen tencing we defer to the lower court and will not review sentences within the statutory limits ab sent exceptional circumstances.”).

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

access to substance abuse treatment while incarcera ted; 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 c arefully considered the evidence before it and properly exercised its discretion. We find no abus e of discretion.

Affirmed.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Beth Robinson, Associate Justice