State v. Gibney

State v. Gibney (2003-445); 177 Vt. 633; 869 A.2d 118

2005 VT 3

[Filed 11-Jan-2005]

                                 ENTRY ORDER

                                  2005 VT 3

                      SUPREME COURT DOCKET NO. 2003-445

                             NOVEMBER TERM, 2004

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont
                                       }	Unit 2, Franklin Circuit
  Shawn Gibney	                       }
                                       }	DOCKET NO. 589-6-97

                                                Trial Judge: Michael S. 
                                                             Kupersmith

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

       ¶  1.  Defendant Shawn Gibney appeals a trial court order ruling
  that he waived his ability to raise arguments under Apprendi v. New Jersey,
  530 U.S. 466 (2000) at his resentencing hearing.  We affirm.

       ¶  2.  Defendant was convicted of first degree murder and sentenced
  to fifty years to life.  He appealed, and we affirmed the conviction, but
  remanded for resentencing, holding that the trial court had incorrectly
  interpreted the meaning of "victims" to include the decedent's family
  members.  State v. Gibney, 2003 VT 26, ¶¶ 50-53, 175 Vt. 180, 825 A.2d 32 (interpreting 13 V.S.A. § 2303(d)(6)).  The remand was necessary because
  the trial court had included six victims, instead of one, as an aggravating
  factor and did not indicate how much weight it accorded this factor.  Id.
  ¶ 53.  On remand defendant argued that the court could not impose a
  sentence higher than the statutory minimum unless a jury determined the
  validity of the aggravating factors beyond a reasonable doubt.  See
  Apprendi, 530 U.S.  at 490 (holding that any fact that increases the penalty
  for a crime above the statutory maximum must be submitted to a jury and
  proved beyond a reasonable doubt).  

       ¶  3.  The court ruled that defendant had waived his right to appeal
  on these grounds because defendant never sought to have sentencing factors
  determined by the jury in the original sentencing proceeding and never
  raised the Apprendi issue in his original appeal to this Court.  In
  addition, the court noted that our remand was narrow, limited only to a
  redetermination of the sentence without consideration of an enhancement
  factor because of multiple victims.  

       ¶  4.  We make no judgment on the applicability of Apprendi to
  statutory minimums and we agree with the trial court that, in any event,
  defendant waived this argument under the Federal and Vermont Constitutions. 
  At his original sentencing, defendant never argued enhancement factors
  could be considered only if their application was determined by a jury. 
  Defendant filed a notice of appeal in the trial court on February 24, 1999. 
  The United States Supreme Court decided Apprendi on June 26, 2000. 
  Defendant submitted his appeal brief to this Court in May 2001 and never
  mentioned the Apprendi issue in it.  We issued a decision on March 28,
  2003. 
   
       ¶  5.  A change in the law applies to a case that is on direct
  appeal, absent extraordinary circumstances.  State v. Styles, 166 Vt. 615,
  616, 693 A.2d 734 , 735 (1997) (mem.).  Thus, although defendant did not
  object in the trial court, he could have raised Apprendi in his original
  appeal for plain error review because the decision issued before he
  submitted his brief.  Defendant presented no Apprendi argument, however,
  and issues that are not raised on appeal are deemed waived.  State v.
  Grega, 170 Vt. 573, 575, 750 A.2d 978, 980-81 (1999) (mem.).  We faced a
  similar situation in State v. Stevens, 2003 VT 15, ¶ 10, 175 Vt. 503, 825 A.2d 8 (mem.), where defendant argued an Apprendi error, after failing to
  raise it in the district court, and failing to claim plain error.  We held
  that defendant had waived the argument, and we follow that same rationale
  here.  See 2003 VT 15, ¶ 10.

       ¶  6.  We also agree with the trial court that our remand was narrow
  and that the resentencing court did not have broad authority to revisit all
  of the issues that could be presented at an original sentencing hearing. 
  We remanded solely for the court to "reconsider the sentence" in light of
  the corrected number of victims.  Gibney, 2003 VT 26, ¶ 53; see State v.
  Higgins, 156 Vt. 192, 193, 588 A.2d 1062, 1062-63 (1991) ("It is axiomatic
  that on remand the trial court is constrained to follow 'our specific
  directions as interpreted in light of the opinion.' " (quoting Coty v.
  Ramsey Assocs., 154 Vt. 168, 171, 573 A.2d 694, 696 (1990))).  Thus, the
  court correctly refused to consider arguments defendant waived in his
  original appeal and that were not specified in the remand.

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned