State v. Bensh

State v. Bensh  (97-338); 168 Vt. 607; 719 A.2d 1155

[Filed 31-Aug-1998]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-338

                               JUNE TERM, 1998


State of Vermont                      }       APPEALED FROM:
                                      }
     v.                               }       District Court of Vermont
                                      }       Unit No. 2, Addison Circuit
Richard George Bensh                  }
                                      }       DOCKET NO. 235-5-93 AnCr


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

       Defendant Richard G. Bensh appeals a district court's determination
  that he was in violation of probation conditions when he was observed
  consuming alcoholic beverages.  Defendant argues that, because he had
  completed his parole period, he was no longer on probation and subject to
  its conditions.  We affirm.

       In March 1994, defendant was convicted for a third time of driving
  while under the influence of alcohol.  He was sentenced to two to five
  years of incarceration, all suspended but one year.  At the time of
  sentencing, the court issued a probation warrant -- which defendant signed
  -- placing defendant on probation until further order of the court.  As a
  condition of his probation, he was required to refrain from purchasing,
  possessing, or consuming alcoholic beverages.

       Defendant began serving the one-year unsuspended portion of his
  sentence in May 1994.  On November 23, 1994, defendant was placed on
  parole.  The parole agreement also contained the condition that defendant
  refrain from purchasing, possessing, or consuming alcoholic beverages
  during the term of his parole. Defendant completed his parole without
  incident in May 1995.

       Defendant's probation officer petitioned the court in December 1996 to
  discharge defendant from probation.  The petition was denied by the court
  on December 20, 1996, citing the seriousness of the offense for which
  defendant was sentenced.

       On April 18, 1997, defendant was cited for consuming alcohol in
  violation of his probation agreement.  Following an admission to the
  conduct alleged in the violation complaint, the court revoked defendant's
  probation.  The court sentenced defendant to serve his underlying sentence. 
  This appeal followed.

       Defendant's argument, that he had completed parole and could no longer
  be held on probation, is without merit.  Parole and probation are separate
  obligations that offenders fulfill independently of each other.  See Miner
  v. Chater, 137 Vt. 330, 335, 403 A.2d 274, 277 (1979) (holding parole and
  probation are fundamentally different).  Parole is "the release of an
  inmate to the community by the parole board before the end of his sentence
  subject to conditions imposed by the board and subject to the supervision
  and control of the commissioner." 28 V.S.A. § 402; see Miner, 137 Vt. at
  334, 403 A.2d  at 477 (parole is alternative way of serving out sentence of
  imprisonment).  Whereas the court imposes sentences within the limits
  established by the Legislature, parole follows the imposition of sentence
  and is a purely legislative function.  The Parole Board is authorized to
  decide which eligible inmates will be

 

  paroled into the community.  Parole, however, does not diminish a
  judicially-imposed sentence or in any way affect it.  A person on parole
  remains subject to the sentence of commitment to the Department of
  Corrections for the period of time specified by the court.  Parole alters
  only the method and degree of confinement during the period of commitment. 
  See People v. Williams, 361 N.E.2d 1110, 1114 (Ill. 1977).

       Probation, on the other hand, is a procedure under which an offender
  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.  During the
  probation period, a defendant agrees to meet certain conditions imposed by
  the court in order to avoid incarceration.  See Sherwin v. Hogan, 136 Vt.
  606, 609, 401 A.2d 895, 896-97 (1979) (holding that probation is
  contractual in nature).  Failure to meet those conditions may result in
  revocation of probation.  See 28 V.S.A. § 303 (setting forth grounds for
  revocation).  While a parolee is in execution of his sentence, a
  probationer is not.  See Miner, 137 Vt. at 335, 403 A.2d  at 277.

       A court need not specify a definite period of probation. Instead, as
  in this case, a defendant may simply be placed on probation until further
  order of the court.  28 V.S.A. § 205(a). Only a court may release a
  probationer from an indefinite period of probation when such discharge "is
  warranted by the conduct of the offender and the ends of justice."  28
  V.S.A. § 251.  Thus, if no period is specified, probation may last longer
  than the original sentence.  See Hogan, 136 Vt. at 609, 401 A.2d  at 896
  (affirming enforcement of probation conditions where probationary period
  outran maximum sentence for crime committed).

       The decision of the Parole Board to place defendant on parole had no
  effect on his judicially-imposed sentence.  See Glover v. Parole Bd., 638 A.2d 929, 930 (N.J. 1994) (holding that parole must be administered within
  terms of court-imposed sentence); Rivenbark v. Board of Probation and
  Parole, 501 A.2d 1110, 1112 (Pa. 1985). Completion of parole had no bearing
  on defendant's status as a probationer because he had not been released
  from probation by the court.  Until such time as the court released him
  from probation, defendant was bound by the probation agreement to refrain
  from consuming alcohol.  By consuming alcohol, defendant violated the
  probation agreement.  We find no error.

       Affirmed.

     BY THE COURT:

     _______________________________________
     Jeffrey L. Amestoy, Chief Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice

     _______________________________________
     Marilyn S. Skoglund, Associate Justice