State v. Benjamin

State v. Benjamin (2005-181)

2007 VT 52

[Filed 22-Jun-2007]

       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2007 VT 52

                                No. 2005-181


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 3, Orleans Circuit

  Mark Benjamin                                  December Term, 2006


  Howard E. Van Benthuysen, J.

  Christopher C. Moll, Lamoille County Deputy State's Attorney, Hyde Park,
    for  Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  REIBER, C.J.   Defendant Mark Benjamin appeals from the
  district court's finding that he was in violation of probation (VOP). 
  Defendant asserts that the VOP complaint should have been dismissed because
  he was denied his right to a hearing within a reasonable time.  The State
  contends, in opposition, that any delay in the hearing was due largely to
  defendant's own actions and that no prejudice resulted from the delay.  We
  affirm.
        
       ¶  2.  The pertinent facts are uncontested.  Defendant pled guilty on
  July 13, 2004, to one count of lewd and lascivious conduct with a minor,
  and one count of sexual assault on a minor. (FN1)  He was sentenced, on the
  first charge, to one to five years, all suspended but sixty days.  On the
  second, he was sentenced to three to twelve years, all suspended but sixty
  days on a pre-approved furlough work crew.  The two sentences were
  concurrent, and defendant was placed on probation with standard conditions. 
  On August 20, 2004, defendant's probation officer filed a VOP complaint
  alleging that defendant had violated his probation conditions by using
  regulated drugs and alcohol.  On the same day, defendant was arraigned on
  six new charges: one count of sexual assault on a minor under sixteen, 13
  V.S.A. § 3252(3); three counts of delivering regulated drugs to minors, 18
  V.S.A. § 4237(A); and two counts of furnishing alcohol to a minor, 7 V.S.A.
  § 658.  Defendant entered a plea of not guilty, and bail was set at
  $50,000.  A preliminary probable-cause hearing on the VOP charge was also
  held on August 20, and probable cause was found for the VOP.  Unable to
  make bail on the six new charges, defendant was taken into custody the same
  day. 

       ¶  3.  Defendant was assigned counsel on August 24, 2004, and a merits
  hearing on the VOP complaint was scheduled for September 20, 2004.  The
  court also set September 20 as the date for a status conference on the
  criminal charges.  Defendant's counsel withdrew on August 31, and new
  counsel was assigned that day.  Defendant then moved, on September 17,
  2004, to continue the September 20 hearing.  The motion was granted, and
  the hearing was set for October 18, 2004.  On October 13, 2004, defendant
  filed a motion to suppress certain statements he had made to police
  officers, with respect to both the VOP and the other charges.
   
       ¶  4.  The first hearing on the VOP complaint was held on October
  18, 2004.  The State called defendant's probation officer to testify, and
  the time allotted for the hearing was sufficient for the State to conclude
  its direct examination but insufficient for defendant to complete
  cross-examination.  Also on that day, five new charges were filed arising
  from defendant's conduct on August 20.  Bail on those charges was set at
  $25,000, and defendant, already incarcerated for failure to make bail on
  the August 20 charges, did not meet the additional bail.  The October 18
  hearing was continued to November 22, 2004, to take further evidence.  

       ¶  5.  At the November 22 hearing, which lasted less than an hour,
  defendant moved to merge consideration of the motion to suppress with the
  VOP hearing.  That motion was granted.  Defendant then completed the
  cross-examination of the probation officer begun at the October 18 hearing,
  after which the State conducted direct examination of one of the police
  officers who executed the search warrant on defendant's home.  The time
  allotted for the hearing did not suffice for the State to complete direct
  examination.  At the close of the hearing, counsel for defendant asked the
  court if it would reschedule the upcoming hearing on the suppression motion
  to coincide with the next hearing on the VOP.  The court agreed, and a
  hearing was scheduled for November 29.  
   
       ¶  6.  At the November 29 hearing, which lasted about forty minutes,
  defendant asserted that the scheduling had created problems with
  out-of-state witnesses - in particular defendant's mother, who feared
  losing her job if she had to miss work for other hearings - and was
  diminishing his ability to cross-examine witnesses effectively.  Citing
  these difficulties, defendant moved to dismiss the VOP complaint.  The
  motion was denied.  After the denial, the State concluded direct
  examination of the police officer, and defendant began to cross-examine
  her.  During both the State's and defendant's examination of the officer,
  counsel for both parties discussed with the court the difficulties inherent
  in examining the officer without a resolution of the motion to suppress. 
  At the close of the November 29 hearing, the court noted that, when it came
  time to focus more closely on the statements subject to the motion to
  suppress, the officer would be called upon to testify again.

       ¶  7.  Additional hearings were held, including a half-day on March 23
  and a shorter hearing on March 29, 2005.  On March 23, four witnesses
  testified.  The first was a minor who was present when defendant furnished
  drugs to other minors and who assisted police in recording a telephone call
  in which she discussed drugs with defendant.  The defense had a full
  opportunity to cross-examine her and did so.  The second witness was a
  friend of defendant.  He testified and was subject to cross-examination,
  redirect, and recross.  Third to testify on March 23 was the police officer
  who had previously testified on November 29.  Finally, the court took
  testimony from another officer who was present at the time the warrant was
  executed.  That officer was subject to direct and cross-examination.  Four
  more witnesses, including defendant, testified at the shorter March 29
  hearing.

       ¶  8.  The district court then issued an order on April 21, 2005,
  finding that defendant had violated his probation conditions.  Probation
  was revoked on June 6, 2005, and the underlying sentences on the
  sexual-assault and lewd-and-lascivious-conduct charges were imposed, with
  credit for time served, after a sentencing hearing.  Defendant appealed.

       ¶  9.  We first review the rules and statutes governing VOP hearings
  in Vermont.  Rule 32.1 of the Vermont Rules of Criminal Procedure and §§
  301-305 of Title 28 govern the modification and revocation of probation. 
  Under Rule 32.1, two hearings must be held.  First, a probationer is
  entitled to a "prompt" preliminary hearing to determine whether there is
  probable cause to detain him or her pending a merits hearing.  V.R.Cr.P.
  32.1(a)(1).  Second, the merits hearing, referred to in the statute as the
  "revocation hearing," must be held "within a reasonable time."  V.R.Cr.P.
  32.1(a)(2).  The Vermont rules mirror the Federal Rules of Criminal
  Procedure in both respects.  See F.R.Cr.P. 32.1(b)(1), (2) (preliminary
  hearing must be held "promptly"; revocation hearing must be held within "a
  reasonable time").  Both the Vermont and federal rules dictate certain
  procedural requirements for the preliminary and final hearings, but those
  requirements are not implicated in the instant case; defendant contests
  only the timing of his revocation hearing. The United States Supreme Court
  has held that the timing and nature of both hearings is mandated by the
  Sixth Amendment to the United States Constitution. (FN2)  Vermont's rule
  was promulgated to comply with the constitutional mandates announced in
  those cases.  Reporter's Notes, V.R.Cr.P. 32.1. 

       ¶  10.  First, in Morrissey v. Brewer, 408 U.S. 471, 485 (1972), a
  parole-revocation case, the Court ruled that a preliminary, informal
  hearing was required "as promptly as convenient" after arrest while
  information is fresh and sources are available to determine whether there
  is probable cause for a violation of parole.  The Court further ruled that
  the Constitution requires another more formal hearing prior to parole
  revocation; that hearing, the Court noted, "must lead to a final evaluation
  of any contested relevant facts and consideration of whether the facts as
  determined warrant revocation."  Id. at 488.    That final hearing "must be
  tendered within a reasonable time after the parolee is taken into custody." 
  Id.  While the Court declined to announce a bright-line rule for
  reasonableness, it noted that two months, the lapse at issue in Morrissey,
  "would not appear to be unreasonable."  Id.
   
       ¶  11.  The following year, in Gagnon v. Scarpelli, the Court applied
  Morrissey's logic to a revocation of probation, and held that "a
  probationer, like a parolee, is entitled to a preliminary and a final
  revocation hearing, under the conditions specified in Morrissey."  Gagnon,
  411 U.S.  at 782.  The Court noted that, although there are "minor
  differences" between probation and parole, the revocation of the former is
  "constitutionally indistinguishable" from revocation of the latter.  Id. at
  782 n.3.  This logic also holds true under the applicable Vermont statutes.  

       ¶  12.  In Vermont, both probation and parole are statutorily defined. 
  Parole is "the release of an inmate to the community by the parole board
  before the end of the inmate's sentence subject to conditions imposed by
  the board and subject to the supervision and control of the commissioner."
  28 V.S.A. § 402(1).  Probation is "a procedure under which a respondent,
  found guilty of a crime upon verdict or plea, is released by the court,
  without confinement, subject to conditions imposed by the court and subject
  to the supervision of the commissioner."  28 V.S.A. § 201.  Although there
  are differences between probation and parole in Vermont, State v. Bensh,
  168 Vt. 607, 607-08, 719 A.2d 1155, 1156 (1998) (mem.), as there are in the
  federal system, we agree with the Gagnon Court that the differences do not
  require any distinction between the two for purposes of our due-process
  analysis in this case.

       ¶  13.  Morrissey and Gagnon, taken together, mandate that a
  preliminary probation-revocation hearing be held promptly, and that a final
  revocation hearing be held within a reasonable time.  We have not had cause
  to confront squarely the latter requirement, although many other courts
  have.  See, e.g., United States v. Throneburg, 87 F.3d 851 (6th Cir. 1996);
  United States v. Morales, 45 F.3d 693 (2d Cir. 1995); United States v.
  Rasmussen, 881 F.2d 395 (7th Cir. 1989); United States v. Blunt, 680 F.2d 1216 (8th Cir. 1982); State v. Jameson, 541 P.2d 912 (Ariz. 1975); Dority
  v. State, 951 S.W.2d 559 (Ark. 1997); State v. Inscore, 634 S.E.2d 389
  (W.Va. 2006).  

       ¶  14.  Like many of the jurisdictions cited above, we assess the
  reasonableness of a delay in completing the final revocation hearing under
  the balancing test announced in Barker v. Wingo, 407 U.S.  at 530, which we
  have previously applied in other contexts.  See State v. Turgeon, 165 Vt.
  28, 35, 676 A.2d 339, 343 (1996) (failure to bring a defendant to trial
  within limits set by Administrative Order No. 5, § 2 is not per se
  deprivation of due-process rights; delay evaluated using Barker factors);
  State v. Percy, 158 Vt. 410, 420, 612 A.2d 1119, 1126 (1992) (assessing,
  under Barker, timeliness of criminal retrial after remand); State v. Unwin,
  139 Vt. 186, 195, 424 A.2d 251, 257 (1980) (adopting Barker to assess
  defendant's claim that several months' delay in criminal trial violated
  Sixth Amendment).  The Second Circuit has adopted Barker to assess delays
  in preliminary probation-revocation hearings arising under the federal
  probation-hearing statute in effect at the time.  State v. Companion, 545 F.2d 308, 311 (2d Cir. 1976). (FN3)  We have not explicitly adopted the
  Barker factors in the probation-revocation context, and we take this
  opportunity to do so. (FN4)  
                                    
       ¶  15.  The Barker Court identified four factors to be considered in
  evaluating whether a defendant has been deprived of the right to a speedy
  trial: "[l]ength of delay, the reason for the delay, the defendant's
  assertion of his right, and prejudice to the defendant."  407 U.S.  at 530.
  (FN5)   Weighing the facts in the instant case in light of these factors,
  we conclude that defendant's right to a revocation hearing within a
  reasonable time was not violated.

       ¶  16.  We note, at the outset, that the Fourteenth Amendment protects
  citizens against deprivation of liberty without due process of law.  The
  conditional liberty enjoyed by a non-incarcerated parolee or probationer
  falls within the due-process protection of the amendment.  G.T. v. Stone,
  159 Vt. 607, 610, 622 A.2d 491, 492 (1992).  Here, however, it is at least
  arguable that defendant - already incarcerated for failure to make bail on
  criminal charges filed the same day as the VOP complaint - was not deprived
  of his liberty by the delay in holding the probation-revocation hearing. 
  His incarceration does not, however, eliminate defendant's due-process
  interest in a timely final hearing.  Even an incarcerated probationer has a
  due-process interest in a reasonably timely final revocation hearing. 
  Delay in that hearing can prejudice an incarcerated probationer in much the
  same way as it would a non-incarcerated one, particularly diminishing the
  ability to prepare an effective defense, which is a core underpinning of
  both the speedy-trial and due-process guarantees.  Accordingly, the fact of
  defendant's incarceration is to be weighed during the Barker balancing.

       ¶  17.  We turn to that balancing.  The Barker Court characterized the
  first factor, length of delay, as "to some extent a triggering mechanism,"
  noting that "[u]ntil there is some delay which is presumptively
  prejudicial, there is no necessity for inquiry into the other factors." 
  Barker, 407 U.S.  at 530.  There is no length of delay, however, that is per
  se prejudicial. (FN6)  Here, the VOP complaint was filed and probable cause
  was found at a preliminary hearing on August 20, 2004.  The revocation
  hearings began on October 18, 2004.  Those hearings continued until March
  29, 2005, and a written decision was not issued until April of 2005. 
  Although Barker and the other cited cases arose from delays in the
  commencement of hearings while the instant case involves a delay in the
  completion of hearings that were timely commenced, the due-process concerns
  raised by the former are raised also by the latter.  A defendant whose
  revocation hearing begins promptly but is then continued for an
  unreasonable period may suffer the same prejudice as one whose hearing is
  not commenced for an unreasonably long time.  The delay in the instant case
  between the VOP complaint's filing and its disposition - eight months -
  although not per se prejudicial, is sufficient to trigger an inquiry into
  the other Barker factors.  

       ¶  18.  The second Barker factor, the reason for the delay, does not
  strongly support defendant's claim.   The first month of the delay was due
  to defendant's motion to continue, and at least some of the subsequent
  months' delay is attributable to defendant's request to consider his motion
  to suppress along with the VOP complaint.  Defendant makes no claim that
  the State was at fault in causing the delay, but asserts that the only
  reason for the delay was a lack of court resources.  The Barker Court
  considered several possible reasons for delay, concluding as follows:

    [D]ifferent weights should be assigned to different reasons.  A
    deliberate attempt to delay the trial in order to hamper the
    defense should be weighted heavily against the government.  A more
    neutral reason such as negligence or overcrowded courts should be
    weighted less heavily but nevertheless should be considered since
    the ultimate responsibility for such circumstances must rest with
    the government rather than with the defendant.  Finally, a valid
    reason, such as a missing witness, should serve to justify
    appropriate delay.

  Barker, 407 U.S.  at 531.  Here, the completion of the hearings was delayed
  in part because of a lack of court resources.  Defendant would have
  remained incarcerated for failure to make bail regardless of the speed with
  which his revocation hearing was held, however, and the court's delay was
  also due to its effort to accommodate defendant's request for longer blocks
  of hearing time at which he would have time to cross-examine the State's
  witnesses on the same day as their direct examination.  Accordingly, we do
  not find that the reason for the delay militates in favor of finding a
  constitutional violation in this case.
   
       ¶  19.  As to the third Barker factor, the State concedes that
  defendant asserted his right to have the VOP resolved in a timely manner,
  and so we move on to consider the fourth factor, prejudice to the
  defendant.  Prejudice to the defendant is the most important factor in
  considering timely-hearing claims.  Page, 171 Vt. at 115-16, 757 A.2d at
  1042-43; see also, e.g., Mims v. LeBlanc, 176 F.3d 280, 282 (5th Cir.
  1999).  The Barker Court identified three particular interests in light of
  which prejudice to defendants should be assessed: (1) preventing
  "oppressive pretrial incarceration," (2) minimizing "anxiety and concern of
  the accused," and (3) limiting "the possibility that the defense will be
  impaired."  407 U.S.  at 532.  Because defendant was incarcerated for
  failure to make bail on other charges during the entire course of the
  revocation hearings, the first interest is not implicated here.  The second
  interest is implicated only minimally, for the same reason.  A defendant
  incarcerated for a reason other than the delay in the hearings cannot
  properly attribute his anxiety at being incarcerated - or the prejudice it
  implies - to the hearing delays.  The third interest, however, applies with
  equal force to a probationer incarcerated on other charges as to one
  incarcerated only due to the VOP.  Defendant makes two general contentions
  in this regard.  First, he claims that his ability to cross-examine was
  undermined by the fractured nature of the proceedings.  Second, he argues
  that an out-of-state witness came to Vermont twice to appear at hearings,
  but was unable to appear on those days and unable to return again due to
  scheduling issues with her job, and that another witness was unable to
  appear due to the protracted nature of the hearings.

       ¶  20.  Like the Barker Court, we take the prospect of prejudice
  resulting from delay quite seriously, particularly where a defendant may
  have been rendered unable to adequately prepare a defense due to
  unnecessary delays in holding a final hearing.  See id. ("[T]he inability
  of a defendant adequately to prepare his case skews the fairness of the
  entire system.").  In this case, however, defendant's claims of prejudice
  are too speculative - particularly in light of the fact that he was already
  incarcerated on other charges - to constitute a due-process violation.  If
  the divided hearings might, to some degree, have reduced defendant's
  ability to examine witnesses effectively, defendant has presented no
  concrete examples of actual prejudice, and none are apparent from the
  record.  Further, at the November 29, 2004 hearing at which counsel for
  defendant raised this issue, counsel herself characterizes the State's
  early witnesses as "pretty much pro forma," implying that no prejudice to
  defendant had resulted from the inability to cross-examine them immediately
  after direct examination.  Counsel then suggested that the prejudice she
  feared would begin to accrue only when other, more substantive witnesses
  were called later, if subsequent hearings were as short as the first
  hearings and counsel was forced to cross-examine witnesses weeks or months
  after their direct examination.
   
       ¶  21.  Following defense counsel's objection to the "fractured"
  nature of the proceedings, the trial court agreed to attempt to find a
  larger block of time on a single day for subsequent hearings, but noted
  that it might be as much as two months before such a large opening in the
  court's calendar would be available.  The next hearing was held on January
  12, 2005.  At that hearing, two witnesses were subject to both direct and
  cross examination.  Although the record does not reveal the exact length of
  the January hearing, the subsequent hearing on March 23, 2005, was a
  half-day long, apparently in response to defense counsel's oral request for
  a longer hearing.  The delay between November and March, though greater
  than the two-month estimate the court gave in November, is at least
  partially attributable to defendant's request for longer hearings, which
  the court warned might cause delay.  The fractured nature of the hearings
  does not tip the balance in favor of finding a due-process problem.

       ¶  22.  Defendant also claims that at least one witness was unable to
  appear as a result of the delay in holding the hearings.  First, defendant
  notes that a rebuttal witness did not appear at the March 29 hearing, but
  the defense appears to have contacted that witness for the first time on
  the evening before the March 29 hearing, and he was never served with a
  subpoena to appear.  While the failure of a witness to appear may in some
  cases be wholly attributable to delay - as, for example, where the witness
  dies during the delay, United States v. Williams, 558 F.2d 224, 227-28 (5th
  Cir. 1977) - this  witness's failure to appear was not due to delay at all. 
  Rather, it seems that he did not appear because he was given relatively
  short notice by the defense, and was not subpoenaed.  

       ¶  23.  Second, the defense argues that defendant's mother was unable
  to testify at the March 29 hearing, though she had attended all of the
  previous hearings, because she feared losing her job if she missed work
  again.  We note first, as the trial judge did, that the proffered testimony
  was, at best, peripherally relevant.  Defense counsel stated that
  defendant's mother would corroborate the testimony of another witness about
  the whereabouts of certain prescription medication.  Even had defendant's
  mother been available to testify, however, according to the proffer she
  would only have testified as to the location of some medication, and would
  not have testified  that there were no pills or other drugs at defendant's
  house.  Given the minimal relevance and probative value of the proffered
  testimony, defendant's mother's inability to testify - which is arguably
  not properly attributed to the delay in any event - did not violate
  defendant's right to a timely hearing.

       ¶  24.  Our weighing of the Barker factors leads us to conclude that
  defendant's due-process rights were not violated by the prolonged final
  revocation hearing in this case.  We therefore affirm the district court's
  order denying defendant's motion to dismiss the VOP complaint and finding
  that defendant had violated his probation.  Because we affirm the finding
  of a violation of probation, and because defendant claims no error in the
  district court's subsequent revocation of probation and imposition of
  defendant's underlying sentence, we also affirm both of those decisions.

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  Defendant was charged under the former 13 V.S.A. § 2602 (lewd and
  lascivious conduct with child) and § 3252(a)(3) (engaging in sexual act
  with person under age sixteen).  Both statutes have since been amended. 
  See 2005, No. 192 (Adj. Sess.), § 8 (amending § 2602), § 10 (amending §
  3252). All references in this opinion are to the pre-amendment statutes.

FN2.  The Sixth Amendment provides that "[i]n all criminal prosecutions, the
  accused shall enjoy the right to a speedy and public trial."  U.S. Const.
  amend. VI.  The Sixth Amendment right to a speedy trial is enforceable
  against the states by operation of the Fourteenth Amendment.  Smith v.
  Hooey, 393 U.S. 374, 374-75 (1969).  Although the right to a speedy trial
  is not directly applicable to probation or parole revocation proceedings,
  Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), the federal courts that have
  considered the question have, almost without exception, used the
  Sixth-Amendment-derived logic of Barker v. Wingo, 407 U.S. 514 (1972), and
  its progeny to analyze the closely analogous rights embraced by the Fifth
  and Fourteenth Amendments' due-process protections.  See, e.g., Bryant v.
  Grinner, 563 F.2d 871, 872 (7th Cir. 1977) (holding, in challenge to
  timeliness of parole-revocation hearing, that "the prisoner's right to
  release is to be determined by the standards prescribed in Barker v.
  Wingo").

FN3.  Defendant relies on Companion for the proposition that the delay before
  a final hearing was held in this case was per se unreasonable because it
  was far in excess of the eighty-seven-day delay in Companion.  Companion,
  however, arose from an eighty-seven-day delay in holding a preliminary
  hearing, not a final hearing as in the instant case.  545 F.2d  at 309.  The
  defendant in Companion was arrested near Tucson, Arizona, spent two weeks
  in an Arizona jail, and then underwent a "circuitous" monthlong journey
  through Texas, Oklahoma, Kansas, Illinois, Indiana, and Pennsylvania before
  finally spending twenty-six days in a New York jail before a preliminary
  hearing in Vermont.  Id.  The distinction between preliminary and final
  hearings is centrally important in timeliness claims, and Companion
  therefore cannot bear the weight defendant places on it.

FN4.  We did, in State v. Page, 171 Vt. 110, 757 A.2d 1038 (2000), cite
  Barker in evaluating the timeliness of a probation-revocation decision, but
  we did not expressly adopt it, instead rejecting the defendant's
  due-process claim because no colorable claim of prejudice was made at all. 
  See id. at 115, 757 A.2d  at 1042 ("We doubt that the choice of a relevant
  standard will affect the outcome in this case.").  Page involved a one-year
  delay between the conclusion of the revocation hearing and the issuance of
  the decision thereon.  Id.

FN5.  To these factors factors some courts have added a fifth in the context
  of already-incarcerated probationers: the reason for the incarceration.
  See, e.g., United States v. Scott, 850 F.2d 316, 320 (7th Cir. 1988)
  (citing Moody v. Daggett, 429 U.S. 78, 86-87 (1976)).  We do not follow the
  Scott court in doing so.

FN6.  In Bryant, 563 F.2d  at 871-72, for example, the Seventh Circuit
  abandoned its former presumption of prejudice in delays greater than three
  months and  mandated a case-by-case weighing of the Barker factors to
  determine whether a parolee was denied the due-process right to a timely
  final hearing.  Although Bryant is plainly distinguishable on its facts
  from the case at bar, we agree with the Bryant court that a
  per-se-prejudice rule is unnecessary.