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= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-386
= &n= bsp; &nbs= p; = &n= bsp; MAY TERM, 2005
State of Vermont  = ; &= nbsp; &nb= sp;  = ; } = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = District Court of Vermont,
Daniel Beaupre &n= bsp; &nbs= p; = &n= bsp; &nbs= p; }
} DOCKET NO= . 112-10-03 GiCr
Trial Judge: Charon = A. True
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Defendant appeals from district court order revoking his probation and imposing the underlying sentence of four to eight years for a sexual assault conviction. Defendant conten= ds the court erred in allowing the prosecutor to question defendant about certain uncharged offenses without offering him immunity, and in relying on inform= ation concerning the offenses in imposing sentence. We agree, and therefore reverse a= nd remand for resentencing.
In April 2004, defendant pled guilty, pursuant to a plea agreement, to a char= ge of sexual assault. He was sente= nced to four to eight years, all suspended, and placed on probation. Several months later, in June 200= 4, defendant was charged with violating several conditions of probation. Following a hearing, the court fo= und that defendant had committed the violations as charged. Specifically, he had missed appoi= ntments with his probation officer, missed sex offender counseling sessions, tested positive for mar= ijuana, and failed to participate in the DAEP (domestic abuse education project) program because of an unwillingness to accept responsibility for the offense. The court then turn= ed to sentencing. Defendant testif= ied in his own behalf, asserting that he had been in denial but was now prepared = to accept responsibility for the assault. He acknowledged the marijuana use, explaining that it had been caused by stress.
On cross-examination, the prosecutor asked defendant whether he was currently charged in Chittenden County with sexual assault on a minor. Defense counsel immediately objec= ted on the basis of lack of notice. The court responded that it did not “want to know any details” of = the alleged charges, but did want to know the date of the alleged offense. Defendant responded that he had n= ot been charged with anything. The prosecutor then asked whether the absence of charges was because defendant was working on a plea agreement. Defendant acknowl= edged that there were four potential counts of furnishing alcohol to a minor, and that he was “working” with the State police. The prosecutor then asked whether= one of the alleged offenses involved “digital penetration . . . while you gave her alcohol?”= ; Defendant responded that he did n= ot “know anything about that right now.” The prosecutor then asked, “= ;Should we bring in the officer,” and the court interrupted, “Could, c= ould I just have the date of the offense, please?” At that point, defense counsel ag= ain objected, asserting that defendant had “a right to the fifth amendme= nt at this point.” A convers= ation among court and counsel followed, in which the prosecutor noted that defen= dant could be compelled to testify, but no further questions were put to defendant.
In imposing sentence, the court noted that defendant had committed several violations while on probation from an earlier conviction of lewd and lasci= vious behavior, and observed that it was “not impressed with his compliance with probation.” The c= ourt also observed that defendant had been previously enrolled in a DAEP progra= m and therefore knew its requirements. = span>Additionally, the court stated that it was “concerned by [defendant’s] admissions” concerning the potential charges of furnishing “[a]lcohol to minors . . . apparentl= y at least one of them was a girl.” The court also recalled defendant’s testimony that he “didn’t inhale” while smoking marijuana, observing that = it was “not impressed with the defendant’s candor.” Finally, the court concluded, = 220;I think he’s dangerous. = And I think he should be sentenced to the underlying.” Accordingly, the court imposed the underlying sentence of four to eight years. A subsequent motion to reconsider sentence was denied. This ap= peal followed.
Defendant contends the court erred in admitting defendant’s testimony concerni= ng the alleged charges in Chittenden County without first offering him use immunity. In State v. Begins, 147 Vt. 295, 299-300 (1986), we held = a probationer who wishes to testify at a revocation hearing must be advised that the testimony and its fruits will not be admissible in a subsequent criminal t= rial on the underlying offense. W= e have also held that in any sentencing proceeding, evidence of other charges of = prior criminal activity, whether pending or dismissed, should not be admitted wi= thout first offering use immunity to the defendant. State v. Drake, 150 V= t. 235, 238 (1988). These decis= ions dictate that defendant should have been offered immunity prior to answerin= g the prosecutor’s questions concerning the alleged Chittenden County offense. As noted, defendant acknowledged the existence and nature of the pending charges, and the court relied on them in imposing sentence. This was erroneous, and we cannot – on this record – confidently conclude that the error was harmless. See State v. Ingerson, 200= 4 VT 36, ¶ 10, 852 A.2d 567 (we will affirm sentence if “it was not derived from the court’s reliance on improper or inaccurate information”); State v. Bacon, 169 Vt. 268, 273 (1999) (harml= ess error doctrine applies to sentencing proceedings). Accordingly, we hold that the sen= tence must be reversed, and the matter remanded for resentencing.
The sentence on the underlying offense is reversed, and the matter is remanded= for resentencing consistent with the views expressed herein.
BY THE COURT:
Paul L. Reiber, Chief Justice
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice