State v. Passino

State v. Passino  (97-428); 168 Vt. 634; 725 A.2d 300

[Filed 14-Dec-1998]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-428

                             NOVEMBER TERM, 1998


State of Vermont	}	APPEALED FROM:
                        }
                        }
       v.	        }	District Court of Vermont,
                        }	Unit No. 3, Franklin Circuit
Arthur E. Passino	}
                        }	DOCKET NO. 185-1-90Frcr	


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

       Defendant Arthur E. Passino appeals from the district court's
  revocation of his probation in connection with his conviction for
  involuntary manslaughter. Defendant and his counsel were present at the
  revocation hearing, when the trial court determined that defendant had
  violated his conditions of probation.  The court did not announce its
  decision at the hearing as to sanctions, however, instead issuing a written
  order four days later that imposed the full underlying sentence and
  recommended that defendant be considered for alcohol, sex offender and
  violent offender programs in prison.  Defendant contends that revoking his
  probation in this manner violated his constitutional right to due process
  of law.  We affirm.

       As we stated in State v. Kasper, 152 Vt. 435, 439, 566 A.2d 982, 985
  (1989) (citing Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) and Morrissey
  v. Brewer, 408 U.S. 471, 487-90 (1972)) (other citations omitted):  "A
  probationer cannot be denied due process during a probation revocation
  hearing.  However, the scope of a probationer's due process rights at such
  a hearing does not parallel the constitutional rights afforded a defendant
  during a criminal trial."

       A probation revocation proceeding is both "informal" and "unhampered
  by the procedure incident to a common law trial."  Id. at 440, 566 A.2d  at
  985 (citations omitted).  For these reasons, the probationer's due process
  rights are codified by V.R.Cr.P. 32.1 rather than the more stringent
  requirements of V.R.Cr.P. 43.  See id. at 439, 566 A.2d  at 985.  Contrary
  to petitioner's claim, we have specifically held that V.R.Cr.P. 32.1 does
  not preclude the trial court from making its decision via a written order
  issued after a hearing at which the probationer was present.  See State v.
  Germaine, 152 Vt. 106, 108, 564 A.2d 604, 605 (1989).  Defendant's emphatic
  reliance on United States v. Canady, 126 F.3d 352 (2d Cir. 1997), is
  misplaced because Canady  discusses the impropriety of a post-trial written
  decision in the context of the federal analog to V.R.Cr.P. 43, which is not
  the rule applicable in this case.

       Second, defendant objects to the trial court's recommendation that he
  "be considered for alcohol, sex offender and violent offender programs in
  light of his involvement in the untimely death of [the victim in the
  underlying proceeding] and in recognition of the contents of the
  Presentence Investigation Reports previously filed."  According to
  defendant, the trial court gave no indication at the hearing that it was
  considering such a recommendation.  Therefore, 

  

  defendant reasons, he was unconstitutionally deprived of his right to be
  heard on the issue.(FN1)
  	
       Even if we could conclude that defendant had some right to be informed
  of what the judge might include in the probation revocation sentence, we
  would not find a violation of that right here.  The trial judge's
  recommendation to the Commissioner of Corrections concerning the conditions
  of defendant's confinement is not, strictly speaking, part of defendant's
  sentence.  See 13 V.S.A. § 7031 (requiring sentencing court to establish
  maximum period of incarceration and authorizing it to fix minimum term). 
  Defendant's due process rights are not implicated when the issue is the
  conditions, as opposed to the duration, of his confinement because an
  inmate's "particular right or status within an institution" is a matter
  within the broad discretion of prison authorities.  Conway v. Cummings, 161
  Vt. 113, 115-116, 636 A.2d 735, 736-37 (1993).  Thus, whatever we or
  defendant may think of the fairness or reasonableness of the recommendation
  the trial court shared with the correctional authorities, defendant's right
  to due process of law was not compromised by his professed inability to
  contest the recommendation in court.

       Affirmed.	




       	BY THE COURT:



       	_______________________________________
  	Jeffrey L. Amestoy, Chief Justice

       	_______________________________________
	John A. Dooley, Associate Justice

  	_______________________________________
	James L. Morse, Associate Justice

  	_______________________________________
  	Denise R. Johnson, Associate Justice
  	
       	_______________________________________
  	Marilyn S. Skoglund, Associate Justice


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                                  Footnotes

FN1.  Defendant characterizes the issue as one implicating his right
  to effective assistance of counsel, relying on a reference to that effect
  in Gardiner v. Florida, 430 U.S. 349, 358 (1977).  Although the phrase
  "effective assistance of counsel" typically refers to the rights secured by
  the Sixth Amendment to the U.S. Constitution, Gardiner is a procedural due
  process case, and it is clear that this is the constitutional right
  defendant is invoking.