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.

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

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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

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

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