State v. Austin

Annotate this Case
State v. Austin  (95-256); 165 Vt 389; 685 A.2d 1076

[Opinion Filed 9-Aug-1996]


       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.


                                 No. 95-256


State of Vermont                                 Supreme Court

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

James Austin                                     January Term, 1996


Edward J. Cashman, J.

       Howard W. Stalnaker and Diane C. Wheeler, Franklin County Deputy
  State's Attorneys, St. Albans, for plaintiff-appellee

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       GIBSON, J.   Defendant appeals an order of the Franklin District Court
  that revoked his probation and reinstated his underlying sentence for
  sexual assault.  Defendant contends that: (1) there was insufficient
  evidence to support a violation for leaving the State of Vermont without
  his probation officer's permission; (2) there was insufficient evidence to
  support a violation of the condition that he "successfully complete any
  therapy on sexual aggressiveness to satisfaction of probation officer"; and
  (3) the probation condition requiring defendant to "submit to urinalysis
  testing when requested by your probation officer" violated his
  constitutional rights to due process and to be free from unreasonable
  searches and seizures.  We reverse the determinations that defendant
  violated the travel and therapy conditions, but affirm the violation of the
  urinalysis condition.

       On April 8, 1990, defendant was charged with one count of sexual
  assault, 13 V.S.A. § 3252(a)(1), and two counts of custodial interference,
  13 V.S.A. § 2451.  Defendant and the

 

  State's Attorney signed a plea agreement in which defendant agreed to plead
  nolo contendere to the charge of sexual assault and the State agreed to
  dismiss the custodial interference charges and to recommend a sentence of
  one to three years, all suspended with probation.

       At sentencing, the judge accepted the plea agreement and issued a
  probation warrant that included the following conditions:

         F.  You shall remain within the State unless granted permission to
             leave by your probation officer.

             . . .

         M.  You shall not purchase, possess, or consume regulated drugs
             unless prescribed for your use by a physician.  You shall submit
             to urinalysis testing when requested by your probation officer or
             any other person authorized by your probation officer.

             . . .

         14. Defendant to attend substance abuse counseling and successfully
             complete any therapy on sexual aggressiveness to satisfaction of
             probation officer.  The order of therapy to be determined by
             counselors.


  Defendant signed the probation warrant on January 2, 1991.

       In October 1991, defendant violated probation Conditions M and 14 by
  failing to meet with his counselors and by admitting that he used
  marijuana.  He served nine days for the violations.  In December 1991,
  defendant again violated Condition 14 by continuing to miss meetings with a
  counselor and violated Condition M by refusing to submit to a urinalysis
  test. He served sixteen days in jail and signed a modified probation
  warrant that included Conditions F, M, and 14.

       In February 1995, defendant was twice charged with violating Condition
  M, first, after a urinalysis test indicated the presence of cannabinoids,
  and later, after he refused to consent to urinalysis testing.  He was also
  charged with violating Condition 14 by failing to attend substance-abuse
  counseling sessions.

       On March 17, 1995, the State charged defendant with violating
  Condition F by going to New Hampshire without permission from his probation
  officer.  Defendant was also charged

 

  with violating Condition 14 by failing to participate in sex-offender
  therapy to the satisfaction of his probation officer and by failing to "put
  into practice what [he] has learned [in therapy]."

       The court held a two-day hearing in March and April of 1995 on the
  alleged violations. In support of the Condition F violation, the State
  offered an affidavit from a Claremont, New Hampshire police officer, who
  placed defendant in New Hampshire on March 3, 1995. Defendant objected to
  the admissibility of the affidavit on the ground that it violated his right
  to confront an adverse witness.  The State did not explain why the officer
  was absent, and the objection was overruled without explanation from the
  court.  The court found that the affidavit provided sufficient evidence to
  support a violation of Condition F.

       With respect to Condition 14, defendant contended that he had actively
  participated in the sexual-aggression program and had a four-year history
  free of sexually violent behavior. Defendant's probation officer and
  therapist both acknowledged that defendant could identify his "risk
  factors," but they testified that he had not used this knowledge to change
  his life.  The court found that, despite his attendance and participation
  in treatment, defendant had failed to integrate the therapy into his life,
  and that he was therefore in violation of Condition 14.

       Finally, defendant did not contest the urinalysis results but argued
  that Condition M was invalid because it was not related to the predicate
  offense and was a violation of his right against unreasonable search and
  seizure.  The court found a clear and logical relationship between the
  condition and the underlying offense, and further noted that defendant had
  bargained for the conditions and had agreed to them on three separate
  occasions.  As a result, the court found that Condition M was valid and
  that defendant had violated it.

       On April 17, 1995, the court found that defendant's multiple probation
  violations demonstrated that probation had ceased to be helpful in
  defendant's rehabilitation.  The court therefore revoked defendant's
  probation and reinstated the underlying prison sentence.  The present
  appeal followed.

 

                                     I.


       Defendant contends that the evidence did not support a finding that he
  violated Condition F by leaving Vermont without his probation officer's
  permission.  According to defendant, the only evidence supporting the
  charge was the affidavit of a New Hampshire police officer, the admission
  of which violated his rights under the Confrontation Clause.

       We have previously held that, to preserve a Confrontation Clause
  objection, a defendant must raise an objection on confrontation grounds
  with sufficient specificity to "trigger[] the consideration of a secondary
  issue, namely, whether circumstances making production of the witness
  difficult or impractical outweigh the [probationer's] need to confront and
  cross-examine the witness."  Watker v. Vermont Parole Bd., 157 Vt. 72, 78,
  596 A.2d 1277, 1281 (1991). As examples of specific objections, we have
  suggested that a probationer must apprise the trier of fact of the possible
  violation, express a desire to question the witness, ask the State to
  produce the witness or show "good cause" why the witness is not present,
  ask for a continuance, raise the confrontation issue, or object to the
  absence of the witness.  Id.  In the instant matter, when the State's
  Attorney offered the affidavit at the violation-of-probation hearing,
  defendant apprised the court of the possible violation, expressed a desire
  to question the witness, and specifically raised the confrontation issue. 
  Defendant thus preserved his Confrontation Clause objection.

       In State v. Finch, we held that "reliable hearsay can be admitted in a
  probation revocation proceeding and serve as the basis for revocation"
  without undermining the probationer's confrontation rights.  153 Vt. 216,
  218, 569 A.2d 494, 495 (1989).  In Finch, the trial court revoked the
  defendant's probation after finding that the defendant had violated a
  no-alcohol condition.  The evidence supporting the violation consisted of
  the testimony of the defendant's probation officer, who recounted
  statements made by the defendant's mother and by a police officer, and a
  report from a detoxification center documenting the defendant's admission
  and treatment.  After observing that the hearsay sources were "mutually
  supportive," and that the medical report was of the kind in which questions
  of credibility and veracity were not present,

 

  we concluded that "[t]he evidence in this case had sufficient indicia of
  reliability," and affirmed the revocation order.  Id.

       The constitutionality of our holding in Finch, however, was called
  into question when the federal district court for the District of Vermont
  granted a writ of habeas corpus to the defendant in Finch.  Finch v.
  Vermont Dist. Ct., No. 90-9, 1990 WL 312576, at *1 (D. Vt. Sept. 24, 1990)
  (unpublished mem.).  The court, in granting the writ, explicitly rejected
  this Court's determination "that indicia of reliability may alone justify
  denial of confrontation."  Id. at *4. Rather, the court held that, in a
  probation revocation hearing, a probationer has "the right . . . to
  cross-examine adverse witnesses `unless the hearing body specifically finds
  good cause for not allowing confrontation.'"  Id. at *2 (quoting Black v.
  Romano, 471 U.S. 606, 612 (1985)); cf. Gagnon v. Scarpelli, 411 U.S. 778,
  786 (1973) (probationer has "a conditional right to confront adverse
  witnesses").  The court noted that

    hearsay evidence will be admissible under certain circumstances.
    Conventional substitutes for live testimony such as affidavits,
    depositions, and certain documentary evidence, all of which tend to bear
    indicia of reliability, were expressly offered by the Gagnon Court as
    examples of evidence which might substitute for live evidence upon a
    showing of cause.

  Finch v. Vermont Dist. Ct. at *2 (emphasis added).  Thus, the court
  concluded that, "in a probation revocation hearing once good cause is
  shown, hearsay evidence with sufficient indicia of reliability may be
  introduced."  Id. at *5 n.10 (emphasis added).

       The instant matter presents the first opportunity we have had to
  reconsider our holding in State v. Finch in light of the federal district
  court's decision in Finch v. Vermont Dist. Ct. It is axiomatic that the
  decision of the federal district court is not binding precedent upon this
  Court.  1B J.W. Moore & J.A. Lucas, Moore's Federal Practice  0.402[1] at
  I-21 n.38 (2d ed. 1995); see United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) ("[B]ecause lower federal courts exercise
  no appellate jurisdiction over state tribunals, decisions of lower federal
  courts are not conclusive on state courts.").  As one legal scholar has
  observed, "[T]he last word which the federal court has as to the continued
  restraint of a petitioner is not

 

  the last word with respect to the future orientation of the state court
  system that generated the case."  R.M. Cover & T.A. Aleinikoff, Dialectical
  Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035, 1053 (1977)
  (hereinafter, Cover, Dialectical Federalism).

       Nonetheless, a state court, for prudential and policy reasons, should
  give due respect to the decisions of the lower federal courts, particularly
  on questions involving the United States Constitution.  See Hornstein v.
  Barry, 560 A.2d 530, 536-37 n.15 (D.C. 1989) (uniformity of result in same
  geographical area); State v. Knowles, 371 A.2d 624, 628 (Me. 1977)
  (interest of developing harmonious federal-state relationships); State v.
  Norflett, 337 A.2d 609, 618 (N.J. 1975) (judicial comity).  The need for
  such respect is especially strong when differences arise through the
  federal-state habeas corpus process.  See Cover, Dialectical Federalism,
  supra, at 1048 ("Given the unanimity rule for a valid conviction, the
  habeas relationship demands mutual respect and awareness.").  At the very
  least, federal district court decisions, if they are well-reasoned, have
  persuasive value for federal constitutional questions arising in state
  courts. Bradshaw v. State, 286 So. 2d 4, 6 (Fla. 1973), cert. denied, 417 U.S. 919 (1974).

       Although we accord respect to the judgment of the federal district
  court in Finch v. Vermont Dist. Ct., we observe that the federal district
  court's view -- that "reliability" and "good cause" are separate prongs
  that must independently be met before dispensing with a probationer's
  confrontation rights -- is not shared by any of the federal circuits that
  have considered the question of a probationer's confrontation rights in a
  revocation proceeding.  See, e.g., United States v. Grandlund, 71 F.3d 507,
  510 (5th Cir. 1995); United States v. Verbeke, 853 F.2d 537, 539 (7th Cir.
  1988); United States v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987); United
  States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986); United States v.
  Penn, 721 F.2d 762, 766 (11th Cir. 1983); United States v. McCallum, 677 F.2d 1024, 1026-27 (4th Cir.), cert. denied, 459 U.S. 1010 (1982).

       The federal circuit courts agree that a trial court, when ruling on
  the admissibility of hearsay evidence to which a probationer has objected
  on confrontation grounds, must make an

 

  explicit finding of good cause for dispensing with the probationer's
  confrontation right and admitting the evidence against him.  See Grandlund,
  71 F.3d  at 510 n.6; Simmons, 812 F.2d  at 564; Penn, 721 F.2d  at 764.  In
  contrast to the Vermont District Court's view, however, the circuit courts
  have held that "reliability" is a critical factor in the determination of
  "good cause."(FN1)  See, e.g., Grandlund, 71 F.3d  at 510 (probationer's
  qualified right to confront adverse witness may be disallowed upon finding
  of good cause, in which critical consideration is indicia of reliability of
  challenged evidence).  According to the Simmons court:

     The cases thus delineate a process of balancing the probationer's right
     to confrontation against the Government's good cause for denying it.
     In particular, good cause may arise from the "difficulty and expense of
     procuring witnesses."  [Gagnon, 411 U.S.  at 783 n.5.]  Our cases also
     suggest that the reliability of evidence may provide a basis for its
     admission.

  Simmons, 812 F.2d  at 564 (emphasis added).  The same test has also been
  adopted by several state supreme courts.  See, e.g., State v. Yura, 825 P.2d 523, 530 (Kan. 1992); State v. Casiano, 667 A.2d 1233, 1239 (R.I.
  1995); Mason v. State, 631 P.2d 1051, 1056 (Wyo. 1981).

       In Vermont, the rules of evidence are inapplicable in probation
  revocation proceedings. V.R.E. 1101(b)(3).  The federal courts follow the
  same rule.  Penn, 721 F.2d  at 764; Fed. R. Evid. 1101(d)(3).  Nevertheless,
  in determining the reliability of hearsay evidence offered at probation
  revocation hearings, the federal circuit courts have been guided by the
  traditional hearsay exceptions and exclusions from hearsay as recognized in
  the rules of evidence.  See, e.g., Simmons, 812 F.2d  at 564-65
  (probationer's confrontation right in revocation hearing not infringed by
  admission of hospital records bearing "traditional indicia of
  reliability"); Bell, 785 F.2d at 643-44; Penn, 721 F.2d  at 766.

       In Bell, for example, the Eighth Circuit concluded that "urinalysis
  laboratory reports bear

 

  substantial indicia of reliability" because "[t]hey are the regular reports
  of a company whose business it is to conduct such tests."  Bell, 785 F.2d 
  at 643; see Fed. R. Evid. 803(6).  The court also concluded, however, that
  "police reports of [the probationer]'s arrest do not bear the same indicia
  of reliability," because they "are inherently more subjective than
  laboratory reports of chemical tests and are not intended by their authors
  to be relied upon in the same manner as laboratory reports."  Bell, 785
  F.2d at 643-44; see Fed. R. Evid. 803(8)(B) (excluding from hearsay
  exception matters observed by police officers).

       Upon reflection, we find the approach taken by the federal circuit
  courts to be well-reasoned and persuasive.  Accordingly, we hold that, in
  a probation revocation hearing, a trial court must make an explicit
  finding, and must state its reasons on the record, whether there is good
  cause for dispensing with the probationer's confrontation right and
  admitting hearsay into evidence.(FN2)  See Morrissey v. Brewer, 408 U.S. 471,
  489 (1972).  We are not called upon to establish the limits of what does or
  does not constitute sufficient good cause.  We agree with the circuit
  courts, however, that an important factor in the court's determination of
  good cause is the reliability of the evidence offered by the State,
  particularly where that evidence bears traditional indicia of reliability.

       The rule we announce today is not wholly inconsistent with our
  decision in State v. Finch.  In Finch, we found no infringement of the
  probationer's confrontation right resulting from the admission of a
  detoxification center report.  Finch, 153 Vt. at 218, 569 A.2d  at 495. We
  held that "[t]he detoxification center report appears to be the kind of
  medical report where . . . the `"specter of questionable credibility and
  veracity is not present."'"  Id. (quoting

 

  Langlois v. Department of Employment & Training, 149 Vt. 498, 502, 546 A.2d 1365, 1368 (1988) (quoting Richardson v. Perales, 402 U.S. 389, 407
  (1971)).  Our decision in Finch, however, was silent on the question of
  whether the district court must make an explicit finding of good cause
  before admitting the evidence, and appeared to reject the defendant's
  contention that such a finding is required.  Finch, 153 Vt. at 217, 569 A.2d  at 494-95.  Consequently, we overrule State v. Finch, insofar as that
  decision is inconsistent with the rule we announce today.

       In the instant case, the State offered evidence in the form of an
  affidavit from a Claremont, New Hampshire police officer, who placed
  defendant at the scene of a traffic stop in New Hampshire.  As a general
  matter, affidavits are among the types of evidence that the federal courts
  have found to be "conventional substitutes for hearsay" in probation
  revocation hearings.  Penn, 721 F.2d  at 765; see Gagnon, 411 U.S.  at 783
  n.5 ("[W]e did not . . . intend to prohibit use where appropriate of the
  conventional substitutes for live testimony, including affidavits . . . .")
  (emphasis added).  The affidavit in this case, however, arises from a
  traffic stop by a law enforcement officer.  As the Eighth Circuit Court of
  Appeals explained in Bell, when comparing police reports to urinalysis
  reports, "The relationship between police officers and those whom they
  arrest is much more personal and adversarial in nature than that between
  chemists and those whose urine they test."  Bell, 785 F.2d  at 644. 
  Consequently, police arrest reports "do not bear the same indicia of
  reliability as [urinalysis] reports."  Id. at 643.  We note that the
  Vermont Rules of Evidence specifically exclude "investigative reports by
  police and other law enforcement personnel" from the public-records
  exception to the hearsay rule.  V.R.E. 803(8)(B)(i).  Prior to the
  promulgation of the rules of evidence, police investigative reports were
  inadmissible at common law in Vermont.  See Vladyka v. Page, 135 Vt. 252,
  253, 373 A.2d 539, 540 (1977).

       The district court made no finding that the evidence offered by the
  State was sufficiently reliable to overcome defendant's objection, but
  instead overruled defendant's objection summarily.  We conclude that the
  affidavit of the New Hampshire police officer does not bear

 

  the traditional indicia of reliability that will permit admissibility of
  the affidavit over a valid objection on confrontation grounds.  The
  affidavit was therefore improperly admitted in violation of defendant's
  confrontation rights.

       With respect to probation orders, "[f]indings fairly and reasonably
  supported by any credible evidence must stand."  State v. Sanborn,  155 Vt.
  430, 436, 584 A.2d 1148, 1152 (1990).  In the instant matter, the court's
  finding that defendant travelled to New Hampshire, in violation of
  Condition F, was supported only by the improperly admitted affidavit. 
  Without this evidence, the finding has no support and cannot stand.

                                II.

       Defendant next argues that the evidence did not support the court's
  finding that he failed to "successfully complete any therapy on sexual
  aggressiveness to satisfaction of probation officer," as required by
  Condition 14.  Defendant also argues that the condition violates our
  holding in State v. Bubar, 146 Vt. 398, 505 A.2d 1197 (1985), that
  probation conditions "may not be put beyond the probationer's control." 
  Id. at 405, 505 A.2d  at 1201-02.

       In a probation revocation hearing, the State bears the burden of
  proving the probation violation by a preponderance of the evidence.  State
  v. Bushey, 149 Vt. 378, 382, 543 A.2d 1327, 1329 (1988).  The State meets
  its burden by showing "`that there has been a "violation" of the express
  conditions of probation, or of a condition so clearly implied that a
  probationer, in fairness, can be said to have notice of it.'"  Resper v.
  United States, 527 A.2d 1257, 1260 (D.C. 1987) (emphasis added) (quoting
  Carradine v. United States, 420 A.2d 1385, 1389 (D.C. 1980)); accord State
  v. Peck, 149 Vt. 617, 619, 547 A.2d 1329, 1331 (1988) ("[D]ue process
  requires that a convicted offender be given fair notice as to what acts may
  constitute a violation of his probation, thereby subjecting him to loss of
  liberty.").  If the State meets its initial burden, "the burden of
  persuasion shifts to the probationer . . . [to] `prove[] that his failure
  to comply was not willful but rather resulted from factors beyond his
  control and through no fault of his own.'"  Bailey v. State, 612 A.2d 288,
  291 (Md. 1992) (quoting Humphrey v. State, 428 A.2d 440, 443 (Md. 1981)).

       Establishing the violation is a mixed question of fact and law. 
  Resper, 527 A.2d  at 1260. The trial court must first make a factual
  determination of what actions the probationer took, and then make "an
  implicit legal conclusion that certain acts constitute a violation of the
  probationary terms."  Id. at 1260 n.1.  Findings of fact fairly and
  reasonably supported by any credible evidence must stand.  Sanborn, 155 Vt.
  at 436, 584 A.2d  at 1152 (1990).  We will uphold the trial court's legal
  conclusions if reasonably supported by its findings.  See id. at 434-35,
  584 A.2d  at 1151 (upholding conclusions where supported by findings).

       In the instant matter, the State had the burden to prove that
  defendant had not successfully completed his sex-offender therapy.  It was
  undisputed, however, that defendant continued to take part in the
  sex-offender program, both at the time the probation violation was filed
  and at the time of the probation-violation merits hearing.  At the merits
  hearing, therefore, the State sought to prove that, after three years of
  sex-offender therapy, defendant had not demonstrated sufficient progress to
  earn a satisfactory discharge, and that defendant's continued participation
  in the treatment program would be futile.

       Dr. Kraig Libstag, who runs the St. Albans sex-offender treatment
  program in which defendant was enrolled, testified that he "ha[d] no
  complaints about [defendant's] participation" in the treatment program,
  that defendant "shows up on time" and "does his homework assignments," and
  that, as a result, defendant "certainly has developed an intellectual
  understanding of his risk factors and problem areas."  Defendant's problem,
  in Dr. Libstag's view, was "his lack of ability to demonstrate any kind of
  a generalization of the things he learned in group into his practical
  everyday living."  But while he agreed that defendant's progress-to-date
  would not permit graduation or discharge at that time, Dr. Libstag also
  testified that defendant needed to continue in sex-offender treatment for
  up to eighteen additional months.

       Based on this evidence, the trial court found that defendant had "not
  integrat[ed] the rules into his life" and had not "picked up the practical
  aspects of" the therapy.  We uphold these

 

  findings, which were supported by credible evidence.  The court concluded
  from these findings, however, that defendant had violated Condition 14.  We
  do not agree that the court's findings support this conclusion.  Condition
  14 obligated defendant to "successfully complete" (emphasis added)
  sex-offender therapy.  Because defendant had not actually ceased his
  therapy, the court's conclusion is supportable only if it determined that
  continued therapy served no useful purpose.

       We have held that "a refusal to cooperate with the psychologist was a
  failure to complete [therapy]."  State v. Foster, 151 Vt. 442, 447, 561 A.2d 107, 110 (1989).  In Foster, however, the trial court supported its
  conclusion with findings that the defendant had missed two of three
  scheduled counseling appointments, and had refused to discuss his offense
  at the third appointment.  In addition, the defendant's psychologist
  indicated that no further appointments or meetings were necessary or
  appropriate because of the defendant's refusal to cooperate in discussing
  his offense.  In the present matter, by contrast, defendant's therapist
  expressed satisfaction with defendant's attendance, participation, and
  level of intellectual understanding in his treatment, and recommended that
  defendant continue in the treatment program.  The trial court made no
  finding that defendant's difficulty in translating the intellectual
  principles of therapy into everyday practice amounted to willful
  noncooperation on the part of defendant. Absent such a finding, the
  conclusion that defendant had violated Condition 14 was premature. See,
  e.g., United States v. Lettieri, 910 F.2d 1067, 1068 (2nd Cir. 1990)
  (district court "jumped the gun" when it revoked probation for alleged
  violation that occurred before express time condition had expired).

       We do not mean to cast doubt upon the trial court's role in evaluating
  a probationer's participation in sex-offender treatment.  We adhere to our
  belief that a probation agreement is "not to be treated as `a strait-jacket
  that defies common sense.'"  State v. Emery, 156 Vt. 364, 373, 593 A.2d 77,
  82 (1991) (quoting State v. Duffy, 151 Vt. 473, 478, 562 A.2d 1036, 1039
  (1989)).  In previous cases, however, the trial court has had the benefit
  of evidence that defendant's willful conduct had led either to actual
  discontinuation of treatment by the therapist

 

  or to a determination that continued treatment would be futile.  See, e.g.,
  State v. Masse, ___ Vt. ___, ___, 674 A.2d 1253, 1254 (1995) (mem.)
  (although evidence showed that defendant was terminated from group,
  district court looked to whether defendant satisfactorily participated in
  treatment, and revoked probation based on defendant's poor attendance,
  failure to complete homework assignments, reluctance to discuss offense and
  unwillingness to take responsibility for crime); Emery, 156 Vt. at 366, 593 A.2d  at 78 (defendant attended only first treatment session, then defense
  counsel advised probation officer that defendant posed suicide risk if he
  continued therapy); State v. Gleason, 154 Vt. 205, 209, 576 A.2d 1246, 1249
  (1990) (defendant faithfully met appointments and was pleasant, but when
  agenda turned to sexual matters, defendant "adamantly refused to engage in
  any meaningful dialogue regarding his sexual offense convictions," and as a
  result, therapist discontinued defendant's therapy); Peck, 149 Vt. at 618,
  547 A.2d  at 1330 (defendant continually refused to admit his offense and
  was terminated from group after six months).  In the present matter,
  neither the evidence nor the findings support the conclusion that defendant
  had willfully obstructed his therapy, such that continued therapy was
  futile; indeed, the unrefuted testimony supported the view that defendant
  needed to remain in therapy.  Under such circumstances, the conviction for
  violating Condition 14 cannot stand. III. Finally, defendant argues that
  Condition M, which obligated defendant to submit to urinalysis at the
  request of his probation officer, violates due process because the
  condition was not reasonably related to the underlying criminal offense. 
  According to defendant, his admitted alcohol addiction could not justify a
  probation condition requiring him to submit to drug testing. In addition,
  defendant contends that such a condition infringes on his right to be free
  from unreasonable searches and seizures.

       In Gleason, we expressly left open the question whether a probationer
  may challenge a probation condition for the first time during revocation
  proceedings.  Gleason, 154 Vt. at 210 n.2, 576 A.2d  at 1249 n.2.  We hold
  today that a probationer is barred from raising a collateral

 

  challenge to a probation condition that he was charged with violating,
  where the challenge could have been raised on direct appeal from the
  sentencing order.(FN3)  In United States v. Stine, 646 F.2d 839 (3rd Cir.
  1981), the Third Circuit Court of Appeals observed:

    It is fundamental to our legal system that "all orders and judgments of
    courts must be complied with promptly.  If a person to whom a judge
    directs an order believes that order is incorrect the remedy is to appeal,
    but, absent a stay, he must comply promptly with the order pending
    appeal."  Maness v. Meyers, 419 U.S. 449, 458 . . . (1975).  A person
    who makes a private determination that an order is incorrect, or even
    unconstitutional, may properly be convicted of criminal contempt for
    violation of the order even if his or her private determination is later
    proven correct in the courts.

  Id. at 845.  For this reason,

    the alleged unconstitutionality of probation conditions cannot be raised
    as a defense to their violation in a probation revocation hearing where
    the conditions could have been challenged on direct appeal of the
    judgment of conviction or on an attack to the sentence through a Rule
    35 motion.

  Id. at 846 (emphasis added); accord Coles v. State, 429 A.2d 1029, 1032
  (Md. 1981) ("The correctness of conditions of probation must be determined
  on an appeal from the final judgment of conviction and sentence, and not on
  the subsequent revocation of probation, `because to do so, would, in
  effect, permit a circumvention of [the rule] which requires an appeal to be
  taken within thirty days' following the entry of final judgment.")
  (citation omitted) (quoting Coleman v. State, 189 A.2d 616, 618 (Md.
  1963)).

 

       We agree with the reasoning of the courts in Stine and Coles.  In the
  instant matter, defendant had several opportunities to challenge the
  validity of his urinalysis condition prior to his decision to refuse to
  comply.  These opportunities existed at his original sentencing hearing in
  January 1991 and at the violation-of-probation sentencing hearings in
  November 1991 and March 1992.  Defendant could have appealed directly from
  the imposition of sentence, V.R.Cr.P 32(a)(2), or moved to correct the
  sentence, V.R.Cr.P. 35(a), but defendant elected not to pursue any of these
  avenues of relief.  Rather than raise a timely objection, he accepted the
  condition by signing the original probation warrant and two subsequent
  modified warrants.  Because defendant was barred from collaterally
  challenging the urinalysis condition at a revocation hearing, the
  conviction for violating Condition M must stand.

       The district court's judgment that defendant violated Conditions F and
  14 is vacated; the judgment that defendant violated Condition M is
  affirmed.  Remanded for resentencing.


                               FOR THE COURT:



                              _____________________________________________
                               Associate Justice



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


FN1.  The District of Columbia Court of Appeals has gone even further
  than the circuit courts, holding that a determination of reliability
  resolves the admissibility of hearsay evidence at probation revocation
  hearings.  See Harris v. United States, 612 A.2d 198, 201-02 (D.C. 1992)
  ("All that is required before admitting evidence at a probation revocation
  hearing is a determination that the proffered evidence is reliable.").

FN2.  In Bell, the Eighth Circuit affirmed a revocation order despite
  the absence of an explicit finding of good cause by the federal district
  court.  785 F.2d  at 643 n.3.  According to the circuit court, "A finding to
  this effect . . . is implicit in [the district court's] decision overruling
  Bell's objections to the evidence in question."  Id.  Although our
  disposition today does not require us to reach the question of whether the
  trial court's finding of good cause may be "implicit in its decision," we
  have grave doubt as to the soundness of such a practice in light of the
  requirement, enunciated in Morrissey v. Brewer, 408 U.S. 471, 489 (1972),
  that "the hearing officer specifically find[] good cause for not allowing
  confrontation."


FN3.  We have liberally allowed constitutional challenges to probation
  conditions on direct appeal from the sentencing order.  See, e.g., State v.
  Moses, 159 Vt. 294, 303, 618 A.2d 478, 483 (1992) (striking, as
  unconstitutionally overbroad, probation condition allowing warrantless
  searches).  We have also permitted probationers to raise such challenges in
  motions to modify their probation conditions.  See, e.g., State v.
  Whitchurch, 155 Vt. 134, 139, 577 A.2d 690, 693 (1990) ("While we find this
  procedure somewhat unusual in view of defendant's plea agreement, we cannot
  say that it is barred.").  Finally, we have allowed constitutional
  challenges to be made during revocation proceedings when the alleged
  constitutional infirmity became apparent only as applied to the facts of
  the alleged violation.  See, e.g., State v. Rickert, ___ Vt. ___, ___, 665 A.2d 887, 888 (1995) (mem.) (reaching constitutional challenges on appeal
  from revocation order).  Our decision today affects none of these
  circumstances, but rather reaches only those circumstances where, as here,
  the probationer could have raised a facial challenge to the condition's
  constitutionality at the time the condition was imposed.

  ---------------------------------------------------------------------------
                                 Dissenting


       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.

                                 No. 95-256

State of Vermont                                  Supreme Court

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

James Austin                                      January Term, 1996


Edward J. Cashman, J.

       Howard W. Stalnaker and Diane C. Wheeler, Franklin County Deputy
  State's Attorneys, St. Albans, for plaintiff-appellee

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

       MORSE, J., concurring and dissenting.  I dissent from Part I. 
  Otherwise, I concur.

       The Court holds that defendant was denied procedural due process
  because he was not permitted to "confront" a New Hampshire police officer,
  Christopher R. Gentes, whose affidavit placed defendant on March 3 at 9:43
  p.m. in Claremont, N.H., in violation of the probation condition that he
  not be in New Hampshire without permission.

       Officer Gentes' affidavit read as follows:

         1.  I am an Officer assigned to the Claremont Police Patrol Division.

         2.  The defendant, JAMES W AUSTIN DOB:  06/26/63, was stopped
             at 9:43 PM on March 3rd, 1995 in the City of Claremont New
             Hampshire while operating a 1988 Oldsmobile bearing Vermont
             registration BBY291 for a defective headlight,

         3.  The defendant produced a Vermont driver's license and vehicle
             title to the 1988 Oldsmobile

         4.  The defendant is a convicted sex offender living in Vermont and
             is on probation in Vermont,

         5.  The Claremont Police Department received a request from
             Vermont Department of Corrections, Probation and Parole for any

 

             contact information regarding James Austin, attached is a copy of
             a Motor Vehicle Stop Slip pertaining to the stop of James Austin.

  The "slip" attached was an "enforcement action slip" warning defendant that
  he needed to fix the defective headlight.

       When this evidence was presented at the hearing, the only objection
  was that "[t]he witness is apparently beyond the subpoena power of the
  Court.  We have no opportunity to confront the information . . . [w]ith no
  way of knowing whether there was even an affidavit form."

       The Court faults the trial court for not making a "finding" that the
  affidavit was reliable. I submit that what was not explicitly stated in the
  record is nevertheless obvious from the record. The State's evidentiary
  offer was reasonable, and defendant's objection was insufficient to raise a
  due process issue.

       Defendant never denied his supposed whereabouts, and given the cryptic
  nature of his objection, the court's summary overruling of it was correct. 
  It would be incredible for defendant not to speak up if he was, in fact,
  somewhere other than New Hampshire at the time.  Defendant had no privilege
  to remain silent on the issue.  Neither a probation violation nor his
  presence in New Hampshire is a crime.  His silence in the face of officer
  Gentes' affidavit does not require the state to produce Gentes as a "live"
  witness.  The factual issue was not whether defendant had a defective
  headlight, and it seems obvious by defendant's position at the hearing that
  he was not contesting his whereabouts; he was merely raising a technicality
  over the manner of proof.

       The evidence reeked of reliability, defendant had no interest
  whatsoever in confronting officer Gentes, and the State's burden of
  producing the officer would have been a waste of time. In short, the
  evidentiary basis and "good cause" to overrule defendant's objection needed
  no explanation.

       I would affirm.



                                 _______________________________________
                                  Associate Justice