Background
In February 2023, Travis Smith was tried and convicted of felony lewd and lascivious conduct under 13 V.S.A. § 2601. The evidence showed that Smith, then forty-nine years old, sexually touched an eighteen-year-old woman who was sleeping at the home he shared with her friend, and was later found standing over her masturbating while digitally penetrating her. The jury was instructed that any one of three acts — touching the victim’s breasts, putting his hand down her pants, or masturbating over her — could support either the felony charge or the lesser-included misdemeanor of lewdness. The jury convicted on the felony count. In October 2023, the court sentenced Smith to two-to-four years, all suspended except ninety days to serve, plus five years of probation.
Smith appealed his conviction, arguing among other things that 13 V.S.A. § 2601 was unconstitutionally disproportionate because it proscribed the same conduct as the misdemeanor lewdness statute, § 2601a. The Vermont Supreme Court reviewed only for plain error — because the argument was not raised at trial — and found none, concluding the constitutional challenge was novel. After that direct appeal, Smith filed a Rule 35 motion in the trial court seeking to vacate or reduce his sentence, arguing his felony conviction rested on “misdemeanor-level conduct” and that his sentence violated the proportionality requirement of Chapter II, § 39 of the Vermont Constitution. The trial court denied the motion, and Smith appealed.
The Court’s Holding
The Supreme Court of Vermont affirmed the denial of Smith’s Rule 35 motion on both grounds. As to Rule 35(a) — which permits correction of an illegal sentence at any time — the court held that Smith’s claim was not truly a sentencing challenge but a collateral attack on his underlying conviction. Because Rule 35(a)’s narrow function is to correct sentences that are not authorized by law, and Smith’s two-to-four year sentence fell squarely within the statutory maximum of five years under § 2601, the sentence was not illegal within the rule’s meaning. A claim that the underlying statute is unconstitutional or that the trial evidence supported only a misdemeanor conviction goes to the validity of the conviction, not the sentence, and is therefore outside the scope of Rule 35(a).
As to Rule 35(b) — which allows a court to reconsider and reduce a sentence in its discretion — the court held that the trial court acted well within its discretion in denying relief. The sentencing hearing had already occurred months after trial, removing any concern about “heat of trial” pressure. The court had considered Smith’s lack of criminal history and stable circumstances in fashioning a less severe sentence than it might otherwise have imposed, while also weighing the egregious and predatory nature of the offense and the significant trauma suffered by the victim. The court was not required to credit Smith’s “misdemeanor-level conduct” argument in its Rule 35(b) analysis because Rule 35 is not the proper vehicle for challenging the underlying conviction.
Key Takeaways
- Vermont Rule of Criminal Procedure 35(a) authorizes correction of a sentence that is not authorized by statute, but it does not provide a pathway to collaterally attack an underlying conviction — even when the challenge is framed as a proportionality or constitutional argument.
- A defendant who believes the statute of conviction is unconstitutional, or that the evidence supported only a lesser offense, must pursue that claim through post-conviction relief, not a Rule 35 motion.
- A sentence is not “illegal” under Rule 35(a) merely because the defendant contends the underlying conduct was misdemeanor-level, so long as the sentence falls within the range authorized by the statute of conviction.
- On a Rule 35(b) motion for sentence reduction, the trial court has broad discretion and is not required to address every mitigating factor; it may weigh the seriousness and predatory nature of the offense against factors such as lack of criminal history.
Why It Matters
This decision reinforces the limited scope of Rule 35(a) sentence-correction motions in Vermont, making clear that defendants cannot use the rule as a back-door route to relitigate whether their conduct warranted felony rather than misdemeanor treatment. Defense counsel seeking to challenge an unconstitutional statute or contest the sufficiency of evidence supporting a felony conviction must pursue post-conviction relief rather than sentence reconsideration.
The case also illustrates the deference Vermont courts extend to sentencing judges on Rule 35(b) motions. Where the original sentence was imposed months after trial — free from the pressures of the courtroom — and the court weighed both aggravating and mitigating factors, an appellate court will not second-guess the result absent a clear abuse of discretion.