State v. Lloyd

State v. Lloyd (98-321); 169 Vt. 643; 740 A.2d 364

[Filed 02-Sep-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-321

                              APRIL TERM, 1999


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont
                                       }	Unit No. 2, Chittenden Circuit
Brian F. Lloyd	                       }
                                       }	DOCKET NO. 4-1-98Cncr	


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


       Defendant appeals from a district court sentencing decision, entered
  pursuant to a plea  agreement, that ordered defendant is not to be
  discharged from probation.  He argues that (1) the  court is not authorized
  to order that defendant never be discharged from probation, and (2) the 
  court violated V.R.Cr.P. 11(e)(4) by failing to afford defendant an
  opportunity to withdraw his  plea when it imposed a sentence more onerous
  than that contemplated by the sentencing  agreement.  With one
  clarification, we affirm the decision.

       On May 4, 1998, defendant pled nolo contendere to a charge of domestic
  assault.  The plea  agreement provided that the parties had agreed to hold
  a contested sentencing hearing.  On June  23, 1998, at the sentencing
  hearing, however, the parties filed an agreement on sentencing, and  no
  contested hearing was held.  The agreement provided a sentence of
  six-to-twelve months, all  suspended except three days, with credit for
  three days served, and probation.  The agreement  also required that
  defendant complete the domestic abuse education program and 200 hours of 
  community service, and that defendant have no contact with the victim
  unless the victim and the  probation officer agreed to such contact.  The
  court imposed the sentence in the agreement "with  one modification,"  that
  "[d]efendant is not to be discharged from probation."  Defendant  objected,
  and now appeals that condition.

       First, defendant contends that the court has no authority to order
  that a probationer never  be discharged from probation.  The State counters
  that the court ordered probation for an  indeterminate period as authorized
  by 28 V.S.A. § 205(a), which states: "After passing sentence,  a court may
  suspend all or part of the sentence and place the person so sentenced in
  the care and  custody of the commissioner upon such conditions and for such
  time as it may prescribe in  accordance with law or until further order of
  court."  (Emphasis added.)  The record is  inconsistent.  The written order
  states that "[d]efendant is not to be discharged from probation," 
  indicating a permanent probationary status from which he may never be
  discharged.  The  transcript of the hearing, however, indicates that the
  judge intended to impose an "indeterminate"  probation with "no automatic
  endpoint."  Moreover, the judge indicated that he would reconsider 
  defendant's probation status after "some period of years have gone by."  

       We resolve this inconsistency by reading the court's written order to
  be consistent with the  order from the bench, and thus, to impose an
  indeterminate probation period from which  defendant is not to be
  discharged "until further order of court."  28 V.S.A. § 205(a).  In this 
  form, the condition is explicitly authorized by 28 V.S.A. § 205(a). 
  Further, defendant may move  for termination of the period of probation "at
  any time if such termination is warranted 

 

  by the conduct of the offender and the ends of justice."  28 V.S.A. § 251. 
  Consequently, we do  not address whether the court is authorized to order a
  probationer never to be discharged from  probation.
	
       Second, defendant contends that our precedent requires either (1) a
  fixed probationary  period or (2) discharge from probation upon completion
  of specific and clear conditions within  the control of the probationer. 
  Our decisions reveal no such requirements.  On the contrary, in  State v.
  Bensh, ___ Vt. ___, ___, 719 A.2d 1155, 1157 (1998), we held that "[a]
  court need not  specify a definite period of probation" and that a
  defendant may be placed on probation until  further order of the court.  In
  such cases, the court may release the probationer "when such  discharge `is
  warranted by the conduct of the offender and the ends of justice.'"  Id.
  (quoting 28  V.S.A. § 251).  Further, "if no period is specified, probation
  may last longer than the original  sentence."  Id.  
	
       Defendant relies on State v. White, 150 Vt. 132, 549 A.2d 1069 (1988). 
  In that case, the  defendant was sentenced to a term of zero-to-sixty days,
  all suspended, with an order of  probation, and a fine of $200.  The
  probation warrant also said: "Probation to be discharged at  end of 60
  days."  After the sixty days expired, the State brought a complaint for
  probation  violation because the defendant had not paid the fine.  We held
  that "in cases where the period  of probation is prescribed, discharge from
  probation is automatic upon the expiration of the  period," and that the
  court had no jurisdiction over a probation violation proceeding brought
  after  the expiration of the prescribed probation period.  Id. at 134, 549 A.2d  at 1071 (emphasis added).  White does not require a fixed probationary
  period; it merely enforces the fixed probationary  period that was imposed.

       Similarly, in State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992),
  another case upon which  defendant relies, the court had ordered a
  three-year deferred sentence with probation until further  order of the
  court.  We held that the agreement for a three-year deferred sentence
  limited the  period of probation to three years.  In this context, we
  concluded that "until further order of the  court" authorized the court to
  shorten, but not lengthen, the probationary period beyond that  provided in
  the agreement.  Id. at 205, 617 A.2d  at 139.  Like White, Murray does not
  require  a fixed probationary period; it enforces the three-year limit of
  the plea agreement.  Neither White  nor Murray is analogous to this case
  because, here, the court specifically ordered an  indeterminate, not a
  fixed, probationary period.

       Defendant also relies on State v. Bubar, 146 Vt. 398, 505 A.2d 1197
  (1986), which  requires that the court set specific, clear probation
  conditions within the control of the  probationer.  Defendant does not
  argue, however, that any of his probation conditions are unclear;  rather,
  he maintains that Bubar requires the probation term to be within the
  control of the  probationer.  Bubar does not require that the court set a
  fixed probation term or specific, clear  conditions for discharge from
  probation that are within the defendant's control.  

       Third, defendant argues that the court violated V.R.Cr.P. 11(e)(4) by
  failing to afford  defendant an opportunity to withdraw his plea when the
  court imposed a sentence more onerous  than that contemplated by the
  sentencing agreement.  Defendant contends that the agreement  prescribed a
  period of probation for six-to-twelve months less three days for time
  served.  Our  review of the agreement shows no fixed period of probation. 
  Defendant confuses the length of  the sentence with the period of
  probation.  The agreement provided for a sentence of six-to-twelve  months,
  but did not specify any fixed period of probation.  "[I]f no period is
  specified, probation  may last longer than the original sentence."  Bensh,
  ___ Vt. at ___, 719 A.2d  at 1157.  We  therefore reject defendant's
  contention that the court imposed a sentence more onerous than 


 

  that contemplated by the parties by imposing an indeterminate probation
  period.  


       We agree that the court confused the issue by stating that it was
  adopting the agreement  "with one modification," "an additional condition
  of probation," "that you not be discharged from  probation."  In fact, the
  court imposed the sentence in the parties' sentencing agreement.  The 
  indeterminate period of probation was not "an additional condition," but
  rather defined the  duration of probation, an issue that was not addressed
  in the sentencing agreement.  Contrary to  defendant's contention, nothing
  in the agreement states that the probation period was fixed at six-
  to-twelve months less three days or that he would be discharged from
  probation upon completion  of the domestic abuse education program and the
  200 hours of community service.


       Affirmed; except the probation order is modified to read:

          Defendant is not to be discharged from probation until further 
          order of the court.




                                       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