State v. Masse

State v. Masse  (94-660); 164 Vt 630; 674 A.2d 1253

[Filed 22-Dec-1995]


                               ENTRY ORDER

                       SUPREME COURT DOCKET NO. 94-660

                            NOVEMBER TERM, 1995





State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 2, Franklin Circuit
Todd Masse                           }
                                     }     DOCKET NOFrcr



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


       Defendant Todd Masse appeals the Franklin District Court's revocation
  of  his probation, arguing that the court applied the wrong standard for
  revocation of probation and that his probationary term had expired before
  the probation violation.  We affirm.

       Defendant pled nolo contendere to the charge of lewd and lascivious
  conduct with a child. The court sentenced defendant to a term of three and
  one-half to five years, suspended except for six months to serve. 
  Defendant was placed on probation "until further order of the Court."

       After defendant served his six-month sentence, his probation officer
  referred him to a sex offender treatment program in Burlington.  Defendant
  lived in Franklin County, but no treatment program was offered there at
  that time.  On November 24, 1988, the probation officer filed a violation
  of probation complaint because defendant failed to satisfactorily
  participate in the Burlington treatment program.  On March 29, 1989, the
  district court dismissed the complaint because it found that defendant's
  nonparticipation was  due to his financial circumstances.  By letter dated
  April 6, 1989, defendant's probation officer requested that defendant be
  discharged from probation because he had complied with the conditions of
  probation and no sex offender treatment was available to him.  The court
  denied the request, writing, "Denied. Wait until March 29, 1990," at the
  bottom of the discharge request letter.

       In 1991, Kraig Libstag, a psychologist specializing in sex offender
  treatment, initiated an outpatient sex offender treatment program in St.
  Albans.  Defendant's probation officer referred him to the program, and his 
  participation began on August 12, 1991.  When attending the sessions,
  defendant was reluctant to discuss his offense.  Mr. Libstag thought that
  defendant's attitude negatively affected the treatment group.  Defendant 
  missed four of nine sessions and failed to satisfactorily complete his
  homework assignments.  He was eventually terminated from the program.

       In October 1992, defendant's probation officer once again referred him
  to 

  

  the St. Albans sex offender treatment program, then under the supervision
  of Douglas Barnes-Flint.  During treatment sessions, defendant engaged in
  denial. He shifted responsibility for his crime, attributing his offense to
  his drinking, an argument with the victim's mother, and the seductiveness
  of the  five-year-old victim.  He also portrayed himself as a victim of the
  state agencies responsible for supervising his probation and protecting the
  victim. Of a twenty-eight chapter workbook, defendant completed only four
  chapters e lowest completion rate for the entire treatment group.  Although
  the participants were required to maintain journals, defendant handed in
  only one journal entry during the thirteen months he participated in the
  treatment program.  He was also unwilling to share his thoughts and
  feelings, and he failed to provide feedback to others in group discussions. 
  In June 1993, defendant slept through a film about denial and therefore was
  unable to participate in the group discussions that followed the film.

       Toward the end of his participation in the treatment program,
  defendant encountered difficulty paying the $10 per week treatment fee. 
  Defendant's  probation officer investigated community service in lieu of
  payment, but stopped pursuing this option when he discovered that defendant
  and his wife were spending $65 per month on cable television and
  cigarettes.  After defendant failed to pay overdue fees, Mr. Barnes-Flint
  informed defendant that he was on "probation" with respect to his status in
  the treatment program. Shortly thereafter, defendant stopped attending the
  treatment sessions.

       On November 29, 1993, defendant's probation officer filed a 
  violation-of-probation complaint, alleging that defendant had violated
  condition number seven: "You shall actively participate in mental health
  and  sex offender counseling to the satisfaction of your probation
  officer."  The  complaint alleged that defendant "has been terminated from
  his Sex Offender  Treatment group by his therapist, Douglas Barnes-Flint .
  . . for missing group sessions, failing to make payments for treatment, not
  participating in group [therapy], and not doing his homework as assigned." 
  The district court found  that defendant had violated his probation, and
  defendant appeals.

                                     I.

       Defendant argues that the court erroneously redefined the issue for
  decision and therefore applied the wrong standard for revocation of
  probation. The district court defined the issue as "not whether the
  defendant was  properly terminated from the group treatment programs to
  which he was directed, but rather whether he satisfactorily participated in
  those groups."   Defendant argues that the decision as to whether he
  satisfactorily participated in his therapy program was not for the court to
  determine but for his therapist and probation officer to determine.  He
  contends that if one or more of the motivating factors behind his
  termination from the program was unconstitutional, the court must determine
  whether the therapist and probation officer would have made the same
  decision if they had considered only constitutionally permissible reasons.
  We disagree.

       In essence, defendant argues that if a condition of probation gives
  the probation officer discretion, the court must review the exercise of
  discretion rather than the merits of probationer's violation of probation. 
  The inclusion  of the words "to the satisfaction of the probation officer"
  in the condition of probation does not change the nature of the court's
  decision.  Those words  merely express what is true of all probation
  conditions: that the

 

  Commissioner of Corrections, acting through the probation officer, has the
  discretion whether to file a violation-of-probation complaint based on a
  probationer's alleged violation of a condition of probation.  See 28 V.S.A.
  §  202(1) (commissioner has power to maintain supervision of persons on
  probation); id. § 201 (probation is subject to conditions imposed by court
  and subject to supervision of commissioner); id. § 252(b)(2), (8), (11)
  (listing statutorily authorized conditions of probation that contemplate
  discretionary authority of probation officer). Although this Court has
  reviewed the revocation of probation based on the violation of similarly
  worded probation conditions, it has never required the trial courts to
  apply an abuse-of-discretion review under the circumstances.  Cf. State v.
  Peck, 149 Vt. 617, 620, 547 A.2d 1329, 1331 (1988) (not error for court to
  find that defendant's refusal to admit to facts of offense during therapy
  was knowing  failure to "complete counseling to full satisfaction of
  probation officer").

       Defendant cites Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
  429 U.S. 274 (1977), as authority for his position.  Mt. Healthy involved a
  civil rights suit brought by an untenured public school teacher whose
  employment had not been renewed by the school board for unconstitutional
  reasons.  Because an untenured teacher could have been terminated for no
  reason whatsoever, the Court did not review the merits of the school
  board's decision.  Id. at 283.  The purpose of the Court's review was to
  determine whether the school  board had terminated him for a reason that
  infringed upon his constitutional rights.  Id at 283-84.

       According to the Vermont probation statute, however, the role of the
  court is to determine the merits of probationer's probation violation.  See
  28  V.S.A. § 303(a) (probation shall not be revoked by court unless
  probationer violates condition of probation); see also State v. Millard,
  149 Vt. 384, 385, 543 A.2d 700, 701 (1988) (State must prove by
  preponderance of evidence that defendant had failed or refused to abide by
  one or more of conditions after entering into probation agreement). 
  Defendant's  attempt to recast the issue in terms that make this case
  analogous to Mt. Healthy is unavailing; under the probation statute and
  Vermont case law, the court's role in probation revocation is different
  from the court's limited role in Mt. Healthy.

       Here, the court based its decision on factors that are unquestionably
  constitutional.  The court concluded that defendant did not satisfactorily
  participate in the sex offender treatment program because of his poor
  attendance, his reluctance to discuss his offense during group therapy, his
  unwillingness to share his thoughts and feelings or give adequate feedback
  in group therapy, his failure to complete his homework assignments, and his
  unwillingness to take responsibility for his crime.  The court expressly
  chose not to consider defendant's termination from group therapy because of
  the  possibility that he was terminated for lack of payment.  The court's 
  conclusion that defendant violated a condition of his probation is not
  rendered erroneous merely because the complaint alleged failure to make
  payments as a factor for defendant's termination from treatment.  See S584 
  A.2d  (1990) (revocation upheld even though violation-of-probation
  complaint listed probationer's failure to pay for treatment because other
  aspects of  probationer's nonparticipation in treatment were unconnected to
  payment  obligation).  Further, the court made no findings on, and chose
  not to consider, defendant's unwillingness to admit acts that, while
  contained in the  charge to which he pled nolo contendere, he has denied
  committing.  Therefore, it was not clearly erroneous for the court to
  conclude that defendant did not satisfactorily participate in group
  treatment programs and that he thereby violated a condition of his
  probation.

 

                                     II.

       Defendant also contends that his probation had previously been
  modified and that the probation violations occurred after his probation had
  expired under the terms of the alleged modification.  The court's notation,
  "Wait  until March 29, 1990," at the bottom of the probation officer's
  discharge  request letter does not constitute an order of the court
  modifying the duration of defendant's probation.  The notation neither
  appears in the proper  form nor contains language that is the indicia of a
  court order.  Moreover, neither the Department of Corrections nor defendant
  prepared for the expiration of defendant's probation on March 29, 1990 or
  otherwise acted in a  manner consistent with the interpretation that
  defendant now advances. Therefore, defendant's probation had not expired at
  the time he was found to  have violated the condition of probation.

       Affirmed.


                                BY THE COURT:


                                _______________________________________
                                Frederic W. Allen, Chief Justice

                                _______________________________________
                                Ernest W. Gibson III, Associate Justice

                                _______________________________________
                                John A. Dooley, Associate Justice

[ ]   Publish                   _______________________________________
                                James L. Morse, Associate Justice

[ ]   Do Not Publish            _______________________________________
                                Denise R. Johnson, Associate Justice