State v. Jason M. Bockus

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2024 VT 4

No. 22-AP-275

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Franklin Unit,
Criminal Division

Jason M. Bockus October Term, 2023

Martin A. Maley, J.

Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Seibert and Dawn Matthews, Appellate
Defenders, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. CARROLL, J. Defendant Jason Bockus appeals a judgment of conviction for

assault and robbery following a jury trial. He contends that the trial court erred in not suppressing

out-of-court noneyewitness identifications and denying his motion for judgment of acquittal.

Defendant also argues that the court impermissibly punished him with a harsher sentence for

exercising his right to go to trial. We affirm.

I. Background

¶ 2. The following is adduced from testimony and exhibits admitted at trial, and from

facts found by the trial court in its order denying defendant’s motion to suppress out-of-court

identifications. In early December 2020, a man entered an Irving service station in Highgate,
Vermont just before 11 p.m. Multiple surveillance cameras showed the man wearing a hoodie,

beanie, and mask that obscured most, but not all of, his face. The man told the two service-station

employees on duty that he had a gun and ordered them to open the cash drawer. One of the

attendants opened the drawer. The man took $190 and left. Neither attendant could identify the

man.

¶ 3. Vermont State Police Detective Sergeant Baker led the investigation into the

robbery. She posted stills of the suspect taken from the surveillance footage to the Vermont State

Police Facebook page. A local resident, Christopher Uzell, responded to the posting and told

Detective Baker that defendant resembled the suspect. He informed Detective Baker that he had

known defendant for about twenty years and recognized defendant’s distinctive eyes. In addition

to using the surveillance footage to obtain further positive identifications from defendant’s

probation officer, Greg Machia, and the manager of a sober house where defendant had once lived,

Harley LaRocque, Detective Baker questioned several members of defendant’s family to confirm

the identity of the perpetrator.

¶ 4. Detective Baker interviewed each family member individually and used the same

procedure with each person. She told them that she was investigating the robbery at the Irving

station in Highgate and asked to show them surveillance footage and stills of the footage to see if

they recognized the perpetrator. Detective Baker first played surveillance footage, then showed

stills from the footage, and then, following the person’s identification of defendant, showed a

mugshot and a Facebook photograph from defendant’s personal account to confirm that they were

talking about the same person. She did not tell them that she suspected defendant of committing

the crime depicted in the presentation materials, and she provided no commentary while they

watched the footage.1 Ultimately, defendant’s brother and sister-in-law, TJ and Chantell Bockus,

1
There was no audio recording of the incident.
2
defendant’s ex-girlfriend and mother of his child, Brittany Blaisdell, and Blaisdell’s mother, Deena

Raymond, all identified defendant as the suspect. Each person expressed their belief that defendant

was the perpetrator because the person in the video had defendant’s same distinctive body

movements and unique eyes, among other characteristics. Some family members informed one

another that they believed defendant “might” be the person depicted in the footage prior to

Detective Baker’s questioning. For various reasons, each family member expressed fear that

defendant could retaliate if he learned that they had identified him, and frustration with “the

system” in which defendant had been involved for years.

¶ 5. Based on the above, the State charged defendant with one count of assault and

robbery with a deadly weapon, 13 V.S.A. § 608(b), and with being a habitual offender with three

prior felony convictions, 13 V.S.A. § 11, which carried the possibility of life imprisonment.

¶ 6. Defendant moved to suppress the out-of-court identifications made by Chantell and

TJ Bockus, Brittany Blaisdell, and Deena Raymond under Article 10 of the Vermont Constitution.

He contended that Detective Baker had used an unduly suggestive comparison lineup to obtain the

identifications, and because the noneyewitnesses knew others had already identified defendant

before viewing the presentation themselves, their own identifications were tainted by confirmation

bias. Following an evidentiary hearing, the trial court denied the motion, finding that Detective

Baker had not used unnecessarily suggestive investigation techniques, that suggestive

circumstances not created by law enforcement are “irrelevant” under State v. Porter, 2014 VT 89,

197 Vt. 330, 103 A.3d 916, and that even if the circumstances were suggestive, the identifications

were reliable.

¶ 7. At trial, Uzell, Machia, LaRocque, the Bockuses, and Blaisdell testified for the

State. Uzell testified that he was eighty-percent sure of his identification, Machia said that he was

more than “ninety-nine-point nine percent sure,” and LaRocque averred that he was a “seven or

eight” on a scale of one to ten about his identification. Chantell and TJ Bockus, and Brittany

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Blaisdell each testified that they were convinced that defendant was the perpetrator. The State

also called Lynn Knight, with whom defendant had been living at the time of the robbery. Knight

testified that she was initially seventy-five percent sure that defendant was the perpetrator, but later

disclaimed her identification.

¶ 8. At the close of the State’s case-in-chief, defendant moved for judgment of acquittal.

Defendant argued that the State had failed to proffer sufficient evidence proving beyond a

reasonable doubt that he was the robber because it relied exclusively on out-of-court identifications

by noneyewitnesses, many of whom harbored biases and “agendas” against defendant. He also

contended that the State failed to prove that the perpetrator had been carrying a deadly weapon

during the robbery. Taking all evidence in the light most favorable to the State, and excluding

modifying evidence, the court found that the State’s witnesses had credibly testified that defendant

was the suspect in the surveillance footage, and the service-station employees had credibly testified

that it appeared to them that the man had been carrying a handgun.

¶ 9. At the close of evidence, the court instructed the jury on the elements of assault and

robbery with a deadly weapon as follows:

(1) [defendant]; (2) [a]ttempted to put . . . gas station store
clerks . . . in fear of imminent serious bodily injury; (3) [h]e did so
by using physical menace; (4) [h]e also took money or other
property . . . (5) [h]e took the money or other property with the
intent to deprive [the gas station] of it permanently; and (6) [a]t the
time, he was armed with a dangerous weapon.

The court clarified that: “physical menace means a threat by word or act to inflict physical injury

upon another person” and that “the State alleges that Mr. Bockus attempted by physical menace to

place [the service-station employees] in fear of imminent serious bodily injury, by showing them

the weapon concealed in his waistband.” The State requested an instruction on the lesser-included

charge of assault and robbery. Without objection, the court instructed the jury that the first five

elements of assault and robbery were “defined in the same way as they are defined for assault and

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robbery with a deadly weapon,” except that “[t]he State need not have proven that Mr. Bockus[]

was armed with a dangerous weapon at the time.”

¶ 10. The jury found defendant not guilty of assault and robbery with a deadly weapon.

It found him guilty of the lesser-included charge of assault and robbery, and of being a habitual

offender. At sentencing, the State recommended ten-to-twenty-five-years to serve. Defendant

requested a sentence of two-and-a-half-to-five-years to serve. The court ultimately sentenced

defendant ten-to-fifteen-years to serve, opining:

So even though the weight of the evidence was perhaps not
overwhelming, it was compelling, and the jurors certainly found that
it was. And while the Court can’t comment on someone’s
willingness and ability and right to go to trial, the fact is that folks
who enter pleas prior to trial tend to get a better result because
they’ve accepted responsibility. And Mr. Bockus certainly has not
accepted responsibility, which leads the Court to believe that the
programming part of this, to the extent that it exists, is probably not
going to be helpful for him because he’s not at that point. I don’t
even think he’s, what they call, pre-contemplative at this point in
regards to his willingness to make changes in his life.

This appeal followed.

¶ 11. Defendant advances several arguments on appeal. He argues that the court erred in

not suppressing the identifications made by Chantell and TJ Bockus, Brittany Blaisdell, and Deena

Raymond because Detective Baker used unnecessarily suggestive means to obtain the

identifications. Specifically, he contends that Detective Baker’s decision to interview “estranged

family members” was unnecessarily suggestive, as was her failure to ask the witnesses not to

discuss their own identifications with each other. He argues that the identifications are also

unreliable and should have been suppressed. Defendant asserts that the court improperly relied on

State v. Porter for the proposition that suggestibility is irrelevant where the challenged

circumstances are not arranged by law enforcement. Defendant further contends that the court

erred by denying his motion for judgment of acquittal and deprived him of due process by imposing

an impermissibly harsh sentence because he exercised his right to trial.

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¶ 12. We hold that the court did not err in denying defendant’s motion to suppress. We

agree with the trial court that the identifications of defendant were not made under unduly

suggestive circumstances. Accordingly, we do not reach the question of whether the

identifications were reliable for purposes of defendant’s due process rights, nor do we decide

whether we review purportedly suggestive out-of-court identifications not arranged by police

under Article 10. We affirm the trial court’s ruling on defendant’s motion for judgment of acquittal

and detect no vindictiveness toward defendant from the trial court that would justify disturbing the

sentence it imposed.

II. Out-of-Court Noneyewitness Identifications

¶ 13. We turn first to the question of whether the trial court should have suppressed the

identifications of defendant made by Chantell and TJ Bockus, Brittany Blaisdell, and Deena

Raymond. We review a trial court’s legal conclusions in an order denying a motion to suppress

without deference and defer to its factual findings absent clear error. State v. Discola, 2018 VT 7,

¶ 26, 207 Vt. 216, 184 A.3d 1177.

¶ 14. The Vermont Constitution provides that criminal defendants shall have the right “to

be confronted with the witnesses” against them. Vt. Const. ch. I, art. 10. The Court applies the

two-part test first set forth in Manson v. Brathwaite, 432 U.S. 98 (1977), to determine whether an

out-of-court identification procedure violates that right. Porter, 2014 VT 89, ¶ 20, overruled on

other grounds by Discola, 2018 VT 7, ¶ 30. We first consider the circumstances surrounding the

identification to determine whether they were unnecessarily suggestive. State v. Kasper, 137 Vt.

184, 192, 404 A.2d 85, 90 (1979), overruled on other grounds by Discola, 2018 VT 7, ¶ 30. The

touchstone of this inquiry is whether the method was “so impermissibly suggestive as to give rise

to a very substantial likelihood of irreparable misidentification.” State v. Mayo, 2008 VT 2, ¶ 18,

183 Vt. 113, 945 A.2d 846 (quotation omitted). Second, even “[i]f suggestive, the identification

is still admissible if certain indicia of reliability outweigh the corrupting effect of the suggestive

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identification.” Discola, 2018 VT 7, ¶ 27 (quotation omitted) (describing factors used to evaluate

reliability).

¶ 15. In determining whether an out-of-court identification was obtained under

unnecessarily suggestive circumstances, in addition to considering the totality of the

circumstances, we concentrate on the form of the presentation used by police. Mayo, 2008 VT 2,

¶ 17. Factors we have considered include “how the lineup was set up, how many photos were

arrayed, whether the photos were similar in size, color, or description, and the officer’s

administration of the lineup.” Id. This case presents the first time we have considered whether

police identification practices involving noneyewitnesses to a crime are unduly suggestive.

¶ 16. The trial court found that each person spontaneously identified defendant only after

watching the surveillance footage without commentary from Detective Baker. Detective Baker

did not disclose defendant’s name until after each person made a positive identification, at which

point she produced a photo of defendant to ensure that they were speaking about the same person.

We conclude that this procedure was not unduly suggestive. The form of Detective Baker’s

presentation is not like our prior cases involving suggestive methods where an eyewitness was

shown a display of multiple photos of the defendant in a single array, Kasper, 137 Vt. at 192, 404

A.2d at 90, a presentation consisting solely of one photo of the defendant was shown to an

eyewitness, State v. Findlay, 171 Vt. 594, 597, 765 A.2d 483, 487 (2000) (mem.), or an in-court

identification of a defendant was made by two eyewitnesses who had seen a photograph of the

defendant shortly before the hearing and who was dressed in a prisoner’s uniform and bound in

shackles. Discola, 2018 VT 7, ¶ 28. In contrast to the identification procedures used in those

cases, Detective Baker did not show unmasked depictions of defendant until after each

noneyewitness viewed the surveillance footage and identified defendant of their own accord. See

State v. Bissonette, 145 Vt. 381, 386-87, 488 A.2d 1231, 1234 (1985) (holding procedure not

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suggestive where police showed eyewitness twenty-seven photographs one-by-one and made no

suggestions “emphasizing one photograph over another”).

¶ 17. Moreover, because neither of the store employees could identify the perpetrator, it

was reasonable for Detective Baker to seek out family members who might be in a position to

identify him. See Commonwealth v. Vasquez, 130 N.E.3d 174, 186 (Mass. 2019) (holding that

police had “good reason” to have victim’s family members attempt to identify person in

surveillance footage where no eyewitnesses could do so). The totality of the circumstances in this

case—including the nature of the surveillance footage, the tip Detective Baker received about the

possible identity of the perpetrator, her choice to ask family members of defendant to identify the

perpetrator via surveillance footage to confirm the tip, and the method she used to obtain the

identifications—does not give rise to the danger of “irreparable mistaken identification.”

Bissonette, 145 Vt. at 385, 488 A.2d at 1233.

¶ 18. The Massachusetts Supreme Judicial Court reached the same conclusion on similar

facts in Commonwealth v. Vasquez. There, surveillance cameras recorded audio and visual

depictions of a man shooting and killing a woman in a parked car. There were no “percipient”

eyewitnesses to the shooting. 130 N.E.3d at 186. Police questioned members of the victim’s

family who, before arriving at the police station, had spoken to one another and surmised that the

victim had been involved in a shooting and that the defendant was the likely perpetrator.

Interviewing the witnesses separately, police presented each witness, in order, a photograph of the

defendant, an audio recording of the incident, and surveillance footage. Police did not suggest the

defendant’s involvement and provided no “confirmatory feedback” to the witnesses. Id. at 185

n.16. The Massachusetts high court reasoned that the form of the presentation was not

unnecessarily suggestive because, without eyewitnesses who could identify the perpetrator, police

had good reason to believe that the victim’s family members were in a position to identify the

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shooter from the surveillance footage, police presented the identification materials separately, and

they did not include the audio or visual depiction of the gunshot.2 Id. at 186.

¶ 19. We are also unpersuaded by defendant’s argument that Detective Baker’s failure to

ask the witnesses to not speak with one another amounted to undue suggestiveness. The court

found Detective Baker’s testimony credible regarding the identification procedure she used and

found the witnesses’ testimony credible regarding their own identifications. The court found that

each credibly “testified that they independently identified [defendant] based off the video

surveillance footage,” and that any biases and knowledge that others had already identified

defendant “had minimal influence” on their own identifications.3 Based on the court’s findings,

we conclude that the challenged identifications were not tainted by confirmation bias or animosity

toward defendant, and therefore were not spoiled by undue suggestiveness. Mayo, 2008 VT 2,

¶ 14 (deferring to trial court to determine weight of evidence and its persuasive effect, witness

credibility, and noting that trial court’s rulings will be affirmed if supported by law).

¶ 20. We concur, however, with the Massachusetts high court that “it was not ideal that,

prior to making an identification, each witness was apparently aware that the victim had been killed

and suspected the defendant’s involvement.” Vasquez, 130 N.E.3d at 185 n.16. And we agree

that, where feasible to do so, police should direct witnesses not to speak about their perceptions

with other witnesses prior to the identification proceedings. See id. Law enforcement “cannot be

expected to prevent every conceivable exposure to external information,” but should “guard

against the risk that a witness may be influenced by his or her conversations with . . . family

members . . . before making an identification.” Id.

2
We note that police in Vazquez showed each witness a photograph of the defendant
before playing the audio and visual recordings, which was not done here.
3
While these findings appear in the court’s reliability analysis, they clearly apply to
Detective Baker’s methodology, which the court itself noted.
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¶ 21. While not ideal, the mere fact that the witnesses, prior to their own identifications,

were aware that others had potentially identified defendant in the surveillance footage does not

alone render the identifications suggestive. We emphasize that each case involving out-of-court

identifications is dependent on its own unique circumstances, and our holding is accordingly

narrow. Discola, 2018 VT 7, ¶ 27 (explaining that courts must examine circumstances surrounding

identification procedure). Because the circumstances surrounding the identifications in this case

were not unduly suggestive, we need not reach the question of reliability. See Mayo, ¶¶ 16-19

(explaining that where challenged procedure was not suggestive, Court need not proceed to step

two of Brathwaite test to screen for reliability because procedure does not “give rise to a very

substantial likelihood of irreparable misidentification” (quotation omitted)).

¶ 22. Defendant next takes issue with the trial court’s conclusion that where police do

not arrange the suggestive circumstances, under State v. Porter, 2014 VT 89, Article 10 does not

apply to out-of-court identifications. Defendant spends considerable time in his briefing asking

the Court not to extend the U.S. Supreme Court case cited in Porter, Perry v. New Hampshire, 565

U.S. 228 (2012), to the Vermont Constitution.4 He argues that we should instead hold that due

process protections attach to all suggestive identifications, involving police or not, and that the

Supreme Judicial Court of Massachusetts follows this approach. We do not decide defendant’s

constitutional claim because, as discussed above, we affirm the trial court’s denial of the

suppression motion on an alternative basis, namely, that there were no suggestive identifications

to begin with.5 See State v. Bauder, 2007 VT 16, ¶ 27, 181 Vt. 392, 924 A.2d 38 (“It is . . .a

4
In Perry, the U.S. Supreme Court held that, because the reliability screening function in
Brathwaite test is designed to deter police misconduct, where suggestive identifications are not
arranged by police, courts do not need to screen for reliability. 565 U.S. at 241-42.
5
Defendant’s citations to State v. Porter for the proposition that courts will limit or
suppress suggestive identification testimony is to the portion of the opinion reviewing the
defendant’s preserved Vermont Rule of Evidence 403 claim, not his due process claim. See, e.g.,
2014 VT 89, ¶¶ 24-26; cf. Commonwealth v. Johnson, 45 N.E.3d 83, 88-90 (Mass. 2016)
10
fundamental tenet of judicial restraint that courts will not address constitutional claims . . . when

adequate lesser grounds are available.”).

III. Judgment of Acquittal

¶ 23. Defendant argues that the court erred when it denied his motion for judgment of

acquittal. In effect, defendant contends that noneyewitnesses are insufficient to prove the identity

element where there is no physical evidence linking a defendant to a crime. He also argues that,

as instructed, the jury could not have found defendant guilty of the lesser-included charge because

the State did not put on sufficient evidence to prove that defendant used physical menace to commit

the crime.

¶ 24. We review a denial of a motion for judgment of acquittal without deference to the

trial court. State v. Durenleau, 163 Vt. 8, 10, 652 A.2d 981, 982 (1994). We must “determine

whether the evidence presented by the State, taken in the light most favorable to the prosecution

and excluding any modifying evidence, sufficiently and fairly supports a finding of guilt beyond a

reasonable doubt.” Id.

¶ 25. At trial, the State put on three nonfamily members—Uzell, Machia, and

LaRocque—who testified that they were somewhere between seventy-percent sure and ninety-

nine percent sure of defendant’s identity based on the surveillance footage. Uzell and Machia

testified that they had known defendant for decades, and LaRocque had managed the group home

where defendant lived in the months before the robbery. Chantell Bockus, TJ Bockus, and Brittany

Blaisdell each testified that they were convinced defendant was the perpetrator and identified him

in court. Though the Bockuses had not seen defendant in person since 2012, each testified that the

(explaining that Massachusetts reviews suggestive out-of-court noneyewitness identifications not
arranged by law enforcement under its “common law principles of fairness,” including evidentiary
rule 403) Defendant has not preserved a Rule 403 claim here, nor does he explain on appeal how
it would have led to a different result than the reliability analysis in the Brathwaite test if he had
raised it below. State v. Stanislaw, 153 Vt. 517, 528, 573 A.2d 286, 293 (1990) (explaining that
arguments not presented in proceedings below with sufficient particularity are waived).
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perpetrator’s distinctive body movements and unique eyes were immediately recognizable.

Brittany Blaisdell testified that she had been in a three-and-a-half-year relationship with defendant

eight years prior, that she could identify defendant because of the distinctive way he carried

himself, and that she recognized his eyes because they were “very distinctive. Our daughter has

his eyes, so I see them all the time.” This testimony, along with the surveillance videos admitted

into evidence, fairly and sufficiently supports a finding of guilt beyond a reasonable doubt on the

identity element.

¶ 26. Defendant next contends that the State proffered insufficient evidence to convict

him of the physical-menace element on the lesser-included charge. He asserts that the court’s

instruction on the physical-menace element—that defendant “attempted by physical menace to

place [the service-station employees] in fear of imminent serious bodily injury, by showing them

the weapon concealed in his waistband”—is insufficient without further clarity to sustain a guilty

verdict without a finding that defendant was armed with a deadly weapon at the time of the robbery.

¶ 27. We conclude that the instruction was accurate and consistent such that the jury

could acquit on assault and robbery with a deadly weapon, 13 V.S.A. § 608(b), but nonetheless

find defendant guilty on the lesser-included charge of assault and robbery. The employees testified

that defendant lifted up his shirt and/or “moved his jacket” to show what they took to be “the butt

of a gun” or the handle of a gun, and that they were afraid. Based on this testimony, the State

proffered sufficient evidence to prove that defendant “attempted by physical menace to place [the

service-station employees] in fear of imminent serious bodily injury, by showing them the weapon

concealed in his waistband.” While possessing a dangerous weapon is an essential element to

convict under § 608(b), the jury could find that defendant did not possess a “real gun capable of

bodily injury,” but “that defendant displayed what appeared to be a real gun which placed the

complainant in fear of serious bodily injury.” State v. Stone, No. 2010-346, 2011 WL 4984009,

at *1 (Vt. June 1, 2011) (unpub. mem.) [https://perma.cc/PC3D-4ERG]. The employees testified

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that defendant “showed” them what they understood to be a gun, that it appeared to be partially

concealed in his waistband, and that they were afraid he would “pull it on” them. The State, as

defense counsel agreed, did not need to prove that defendant was actually armed with a dangerous

weapon at the time he robbed the service station to prevail on the lesser-included charge.

Defendant has failed to demonstrate error here.

IV. Vindictive Sentencing

¶ 28. Defendant’s final contention is that the court improperly punished him with a

harsher sentence because he maintained his innocence and exercised his right to trial rather than

plead prior to trial. This argument is without merit.

¶ 29. Punishing a defendant for exercising their right to trial “is a due process violation

of the most basic sort.” State v. Hughs, 2018 VT 74, ¶ 12, 208 Vt. 44, 194 A.3d 1181 (quotation

omitted). “This principle is so fundamental to our legal system that even the perception—if not

the actuality of its abrogation should be avoided to prevent lasting damage to the public’s

perception of the inherent fairness of the criminal justice system.” Id. (quotation omitted).

¶ 30. When faced with an allegation of a vindictive sentence, we review the totality of

the record to determine whether to disturb the trial court’s ruling. Id. ¶ 14. In doing so, we

compare the imposed sentence with both the statutory maximum and the sentence recommended

by the State, determine whether the “vast majority of the trial court’s sentencing remarks focused

on legitimate sentencing considerations,” and consider the context of the challenged comments.

Id. ¶¶ 16-17 (quotation omitted). Ultimately, we will affirm a sentence “[a]bsent exceptional

circumstances, [and] defer to the court’s judgment so long as the sentence is within the statutory

limits and was not based on improper or inaccurate information.” State v. Lumumba, 2014 VT

85, ¶ 22, 197 Vt. 315, 104 A.3d 627 (quotation omitted).

¶ 31. Under the first factor, the court imposed a sentence of ten-to-fifteen years to serve,

which was less than the maximum—life imprisonment under the habitual-offender enhancement—

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and less than the ten-to-twenty-five years the State recommended. Defendant contends that the

court gave the State “the benefit” of a twenty-five-year sentence when it imposed the sentence

consecutive to defendant’s currently imposed sentence for an unrelated conviction, which has a

maximum release date in 2032. However, the State was clear that its request was for ten-to-twenty-

five years to serve imposed consecutively to defendant’s current sentence. Accordingly, we see

no indication that the trial court intended to penalize defendant for exercising his right to trial by

imposing a sentence out of proportion to the maximum penalty or to the State’s recommendation.

See Hughs, 2018 VT 74, ¶ 17.

¶ 32. As to the second factor, the vast majority of the court’s sentencing statements were

focused on legitimate sentencing matters. The court noted the factors it was required to consider,

expressly declined to comment on defendant’s refusal to accept a plea offer, and observed that the

presentencing investigation demonstrated that defendant was not taking responsibility for the

convictions. The court did opine that “folks who enter pleas prior to trial tend to get a better result

because they’ve accepted responsibility.” However, “[a] defendant’s acceptance of responsibility

for the offense, and a sincere demonstration of remorse, are proper considerations in sentencing.”

State v. Sims, 158 Vt. 173, 188-89, 608 A.2d 1149, 1158 (1991) (explaining that such actions are

important steps toward rehabilitation). The court’s pretrial statements concerning the status of the

plea negotiations, and characterizations of the plea offer itself, while not best practice, similarly

related to whether defendant was willing to accept responsibility in light of the possibility of life

imprisonment.6

¶ 33. Under the third factor, the court’s challenged comments occurred in the context of

defendant’s refusal to accept responsibility. Defendant maintained his innocence and exercised

6
While defendant recounts the court’s pretrial statements in his statement of facts, he does
not expressly argue that those statements contributed to the court’s sentencing decision. However,
we discuss them in the interest of canvassing the entire record.
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his right to trial, called the convictions “bullshit” in the presentencing investigation, and did not

apologize, express remorse, or make any other statement indicating acceptance of responsibility at

sentencing. Defendant was well within his rights to conduct himself in this way, and the court

could accordingly take that conduct into account as representative of his failure to take

responsibility for the convictions, and to fashion an appropriate sentence. The court did not abuse

its discretion.

¶ 34. Therefore, we affirm the order denying defendant’s motion to suppress, his

judgment of conviction, and the sentence imposed.

Affirmed.

FOR THE COURT:

Associate Justice

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