State v. Sanborn

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-468


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Franklin Circuit

David Sanborn                                October Term, 1990


Edward J. Cashman, J.

Howard E. VanBenthuysen, Franklin County State's Attorney, James A. Hughes,
  Diane C. Wheeler and Jo-Ann L. Gross, Deputy State's Attorneys, and
  Timothy J. Ryan, Law Clerk (On the Brief), St. Albans, for plaintiff-
  appellee

Walter M. Morris, Jr., Defender General, Montpelier, and Carol Marks,
  Public Defender, Newport, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
          Specially Assigned


     DOOLEY, J.   Defendant appeals the revocation of his probation and the
imposition of his underlying sentence of four-to-eight years imprisonment.
We affirm.
     On August 25, 1986, defendant pled guilty to sexually assaulting a
juvenile.  The trial court suspended the prison sentence and placed
defendant on probation with special conditions.  The probation warrant
included standard condition two, which required defendant to "work, seek
employment or participate in vocational training to the full satisfaction of
your probation officer," and standard condition eight, which required
defendant to "participate fully in any program to which you may be referred
by the court or your probation officer."  The warrant also contained
special condition twenty-one, which stated:  "You shall attend weekly
counseling through Franklin Mental Health, with a waiver of confidentiality
between Mental Health and the Probation Department."
     From October 1986 to January 1987, defendant participated in a group
counseling program offered in St. Albans by Franklin-Grand Isle Mental
Health Service (FGIMH).  The FGIMH program was then disbanded due to a
shortage of staff.  Because no other local group was available, defendant
attended individual counseling through FGIMH from February 1987 through
July 1987, at which time counseling was terminated because of his failure
to pay for treatment.  In February 1988, defendant's probation officer
referred him to a group treatment program for sex offenders, conducted by
College Street Center for Psychotherapy (CSCP) in Burlington.  Defendant met
with the CSCP psychologist for two individual intake sessions.  The
psychologist concluded that despite an IQ in the low 70s, defendant
possessed sufficient intelligence to participate fully in the program.
Defendant attended approximately forty group sessions from March 1988 until
February 1989.  At that time, the group psychologist terminated defendant
from the program because of his lack of active participation and
unwillingness to meet treatment agreements.  In a letter to defendant's
probation officer, the psychologist expressed his belief that defendant was
not appropriate for outpatient treatment, and suggested that a better
alternative might be the Vermont Treatment Program for Sexual Offenders at
the Chittenden County Correctional Facility.  The psychologist outlined
four reasons for his decision:  (1) defendant's failure to interact
constructively with group members and co-therapists; (2) defendant's failure
to adequately prepare his assignments; (3) defendant's lack of employment
resulting in "boredom and too much free time," and thus, a risk of
reoffense; and (4) defendant's failure to meet agreements to pay for
treatment.
     On March 8, 1989, defendant's probation officer issued a probation
violation complaint, alleging that defendant had failed to comply with
standard conditions two and eight, and special condition twenty-one.  After
a hearing on the merits, the trial court made findings and concluded
defendant had violated condition eight -- to "participate fully in any
program to which you may be referred by the court or your probation
officer" -- and sentenced defendant to the underlying sentence of four to
eight years.
     Defendant first makes a series of arguments related to the requirement
that he pay for the treatment at CSCP.  Labeling this requirement as a
modification of his probation agreement, he challenges it as having been
imposed without a hearing and without adequate grounds.  In a related
argument, he attacks the trial court's findings for omitting any finding
that he was able to pay for treatment.  At least the first two parts of the
argument are based on settled law.  Both federal and Vermont law require a
hearing before a court may modify probation conditions to increase the
responsibilities of a probationer.  Gagnon v. Scarpelli, 411 U.S. 778, 781-
82 (1973); V.R.Cr.P. 32.1(b); 28 V.S.A. { 253.  We have also held that
because of the contractual nature of probation, conditions may not be
modified except with the probationer's consent or a finding of changed
circumstances.  State v. Day, 147 Vt. 93, 96, 511 A.2d 995, 998 (1986).  We
recognized in State v. Foster, 151 Vt. 442, 447, 561 A.2d 107, 110 (1989)
that inability to pay could be a defense in a probation revocation case
where non-payment was the cause of the probation violation.
     Defendant's legal arguments help him, however, only if his probation
was violated for failure to meet the new requirements imposed by the alleged
modification.  Even if we accept defendant's argument that imposing a
requirement to pay for treatment is a modification of his probation (FN1) or his
argument that he is unable to pay for treatment, we cannot find that these
arguments raise a valid defense to the State's revocation petition where the
nonparticipation involved actions unconnected with the payment obligation.
     We addressed a claim similar to those made here in State v. Foster, 151
Vt. at 447-448, 561 A.2d  at 110.  In Foster, we rejected the probationer's
claim that his inability to pay was the cause of his failure to complete
psychological screening, and held that the record supported a finding that
defendant's failure to attend was unrelated to his financial concerns.  We
recognized that "[a] case may arise where a defendant intends to 'actively
participate' in mental health counseling or screening, yet cannot
participate because of his inability to pay the costs.  Such was not the
case here."  Id. at 448, 561 A.2d  at 110.  The facts of this case are
similar to those present in Foster.
     Viewed in the light most favorable to the State, State v. Millard, 149
Vt. 384, 384, 543 A.2d 700, 701 (1988), we find ample evidence to support a
conclusion that defendant failed to participate fully in group counseling at
CSCP and that his failure was unrelated to the payment requirement.  The
record shows that despite his capability and initial willingness to take
part in the CSCP program, defendant's participation was marred by a lack of
cooperation, disruptive and impulsive conduct during the sessions,
aggressive and belligerent behavior toward staff, and a failure to
adequately complete assignments.  In fact, CSCP allowed defendant to
continue despite his non-payment.  We cannot conclude on this record that
defendant's non-participation in counseling was related to the fact that the
program charged a fee. (FN2)
     The trial court's conclusions make it clear that it found a violation
of condition eight without regard to the payment obligation and defendant's
failure to meet it.  At the close of the evidence, the court stated on the
record:  "I'm finding this violation . . . because he wouldn't cooperate
with counseling."  The court made written findings detailing this
conclusion, including findings that defendant was belligerent and
threatening at group meetings, that he did not accept responsibility for the
crime and blamed the victim and that he was unwilling to perform work
assignments despite the ability to do so.  In the written findings, the
court concluded that defendant had "failed to genuinely participate with the
group" and that the psychologist's testimony that defendant was at risk to
reoffend was supported by the evidence.  Although the court also found that
defendant did not pay for counseling, despite an ability to pay, (FN3) these
findings are not necessary to the court's conclusion.
     Defendant next claims that revocation could not be based on his parti-
cipation at CSCP because the specific condition that he attend counseling at
FGIMH controls over the general condition that he "participate fully in any
program" to which he might be referred.  "In  essence, defendant's argument
is one of contract construction drawing on the fact that probation involves
a contractual undertaking between the court and defendant."  State v. Duffy,
151 Vt. 473, 477, 562 A.2d 1036, 1038 (1989).  In Duffy, we rejected the
argument that standard probation condition number eight could not be
construed to require mental health counseling where the probation warrant
failed to invoke a specific condition that defendant obtain such treatment.
We held that "defendant must comply with condition eight whether or not the
trial court chose to add a specific mental health counseling requirement to
the probation order."  Id. at 478, 562 A.2d  at 1039 (emphasis supplied).
Here, defendant's claim is directly parallel to the claim in Duffy -- he
relies upon the presence, rather than the absence of a specific condition,
to argue that standard condition number eight is ineffective with respect to
mental health treatment.  As in Duffy, we find defendant's interpretation of
the interaction of the conditions to be unreasonable in light of the
purposes of probation.  If the probation officer had required defendant to
attend a program other than one at FGIMH, while the FGIMH program existed,
we would agree that the specific command imposed in condition twenty-one
would be unlawfully nullified by the officer's action under the authority of
condition eight.  Once it became impossible to implement condition twenty-
one, however, there was no longer a conflict.  As in Duffy, we are unwilling
to imply a conflict where one does not clearly exist.
     In Duffy, we gave weight to the fact that the trial court had
construed the probation agreement against defendant, holding that "we must
uphold [the trial court's construction] if there is a factual basis for the
trial court's conclusion."  151 Vt. at 477, 562 A.2d  at 1038.  Without
citing Duffy, defendant argues that the failure of the trial court to
construe the contract and address his contract construction arguments
warrants reversal.  A review of the record shows that during both the merits
and sentencing hearings, the trial court acknowledged defendant's claims.
Although it did not cite the case by name, the court clearly referred to our
holding in Duffy and recognized its applicability to the present case.  We
take that reference as rejecting the construction defendant urged in the
trial court and here.
     Finally, defendant contends that reversal is required because some of
the findings are unsupported by the evidence and the court failed to weigh
the evidence.  Findings fairly and reasonably supported by any credible
evidence must stand.  State v. Mace, ___, Vt. ___, ___, 578 A.2d 104, 107
(1990).  We have reviewed the evidence and conclude the court's findings
here are adequately supported.
     Relying upon Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653 (1967),
defendant attacks the findings from another angle by arguing that they
recite testimony provided at the hearings, without indicating the weight the
court attached to the testimony.  The findings here are not mere recitations
that testimony was given, which was the main concern in Krupp.  Although the
Court in Krupp indicated concern about the issuance of findings that were
taken verbatim from a party's requests, later decisions show that the trial
court may accept the testimony of specific witnesses or specific requests
for findings and adopt the content of that testimony or those requests as
the findings of the court.  See, e.g., Bonanno v. Bonanno, 148 Vt. 248, 250,
531 A.2d 602, 603 (1987).  We must presume that the court exercised its
independent judgment and weighed the evidence as long as the court doesn't
simply recite that specific testimony was given, without showing whether the
court believed the testimony in whole or in part.  As long as the findings
are supported, we have no grounds to conclude that the court did not
consider all the evidence offered and then adopt that which it believed.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice



FN1.    We expressly do not decide this question.  Nor do we decide the
state's contention that imposition of a payment requirement is specifically
authorized by 28 V.S.A. { 254(b).  We also do not decide whether defendant
can avoid revocation by attacking a requirement to which he specifically
agreed.

FN2.    Defendant argues that the nexus exists because all of defendant's
difficulties with the group sessions were caused because his relationship
with the psychologist was soured by his non-payment of the fees.  His
asserted support for this theory is that he participated successfully in the
FGIMH program without incident and that program was free.  We do not believe
the evidence at the hearing supports this theory.  His inappropriate parti-
cipation at the group sessions, his unwillingness to complete assignments
and his continued unemployment could not be connected with the fee issue.

FN3.    These findings also answer defendant's argument that the court did
not consider whether defendant could pay for counseling.  As discussed
infra, we conclude that these findings are supported by the record.