State v. Page

State v. Page (98-558 & 99-013); 171 Vt. 110; 757 A.2d 1038 

[Filed 26-May-2000]
[Motion for Reargument in 98-558 Denied 19-Jul-2000]


       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.


                            Nos. 98-558 & 99-013


State of Vermont	                         Supreme Court

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

William Page	                                 December Term, 1999

    and

In re William Page	                         On Appeal from
                                                 Franklin Superior Court

                                                 December Term, 1999



Michael S. Kupersmith, J.

Diane C. Wheeler, Franklin County Deputy State's Attorney, St. Albans, for 
  Plaintiff/Respondent-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, 
  Montpelier, for Defendant/Petitioner-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.,  Defendant William Page appeals from the district court's
  order revoking his  probation and re-sentencing him to a term of
  six-to-fifteen years imprisonment, all suspended but  fourteen years, and
  also appeals the denial of his petition for a writ of habeas corpus. 
  Defendant  argues that:(1) the district court lacked jurisdiction to order
  adult probation or imprisonment because 

 

  retransfer of the criminal charge from family court to district court was
  not authorized by the transfer  statute; (2) he  was not subject to the
  terms and conditions of his probation while in custody, before 
  commencement of his probationary term; and (3) the delay in the issuance of
  findings denied him  due process of law.  We affirm.

       On May 25, 1993, defendant, then almost sixteen years of age, was
  charged with sexual  assault, aggravated assault, and kidnaping.  On
  October 29, 1993, on defendant's motion, the judge   transferred the sexual
  assault and kidnaping charges to family court.  The charge of aggravated 
  assault remained pending in district court.  On December 22, 1993, the
  parties agreed to and signed a  complex plea agreement detailing how the
  pending charges were to be resolved in family and district  court.

       The agreement provided for the kidnaping case to remain in family
  court, the aggravated  assault case to be transferred to family court, and
  the sexual assault case to be re-transferred to  district court.  Defendant
  admitted the aggravated assault and kidnaping charges in family court and 
  was placed in the custody of the State on juvenile probation.  Defendant
  pled guilty to the sexual  assault charge in district court and was
  sentenced to "not less than six (6) nor more than fifteen (15)  years in
  the custody of the Commissioner of Corrections, all suspended except six
  (6) years to serve,"  and probation.  Defendant commenced service of his
  sentence on the day the parties entered into the  agreement.  The probation
  order, which defendant signed, agreeing to its terms, contained Special 
  Condition 15: "Defendant to complete sex offender treatment, to include
  residential treatment if  necessary, to the satisfaction of the probation
  officer."

       On June 6, 1994, defendant was admitted to the Whitney Academy, a
  residential treatment  program for adolescent male sex offenders who are
  intellectually challenged, in East Freetown, 

 

  Massachusetts.  In the years between defendant's admission to Whitney and
  his discharge on April 1,  1997, he made minimal progress.  Throughout that
  time, he collected photographs of children and  secreted other residents'
  coats to use for sexual arousal and gratification.  He deceived treatment 
  professionals and other members of his sex offender group, and engaged in
  self-injury.  He lacked  sincere empathy for his victims.  When presented
  with the threat of being returned to prison in  Vermont, defendant's level
  of cooperation would improve.  However, his defiance and lack of 
  compliance with the treatment persisted.  The Director of Clinical Services
  and other staff members  concluded that defendant presented a significant
  risk to re-offend.  As a result, defendant was  discharged from Whitney
  Academy with a  recommendation that he receive further sexual offender 
  treatment.  Defendant was returned to Vermont and incarcerated at Northwest
  State Correctional  Center.

       On June 5, 1997, defendant's probation officer filed a
  probation-violation complaint in  district court, alleging that defendant
  had violated Condition 15 of his probation terms by not  completing
  sex-offender treatment to the satisfaction of the probation officer.  A
  merits hearing was  held on October 1 and 2, and November 6, 1997.  On
  November 6, 1998, defendant filed a habeas  corpus petition alleging that
  the court's failure to issue a timely decision on the violation of
  probation  charge denied him due process of law.(FN1)  On November 11,
  1998, the court issued a decision  finding defendant in violation of
  Condition 15 of his probation order.  The superior court denied the  habeas
  corpus petition as moot.  The district court denied a motion to dismiss
  because the 

 

  decision was untimely.  The district court revoked probation and
  resentenced defendant to six-to-fifteen years in prison, all suspended
  except fourteen years and probation.

       Defendant first argues that because the "retransfer" of the sexual
  assault charge from family  court to district court was not authorized by
  the transfer statute, the district court lacked jurisdiction  to order
  adult probation or imprisonment.  Pursuant to 3 V.S.A. §5506(a), transfers
  from family to  adult court are allowed "if the child had attained the age
  of 10 but not the age of 14 at the time the act  was alleged to have
  occurred."   Defendant was fifteen years old at the time the act was
  alleged to  have occurred.  

       Defendant relies upon State v. Charbonneau, 154 Vt. 373, 376, 576 A.2d 1253, 1255 (1990),  in which this Court reversed a district court
  conviction of a juvenile for simple assault because the  case was
  retransferred to district court from family court without statutory
  authority.  There are three  distinctions between Charbonneau and this
  case: (1) defendant did not agree to the transfer in  Charbonneau; here it
  was part of a plea agreement; (2) defendant was tried for the offense in
  the  district court; here, he pled guilty; and (3) the offense in
  Charbonneau, simple assault, is not one  which is authorized for transfer
  to district court prior to adjudication, see 33 V.S.A. § 5506(a); sexual 
  assault is such an offense, see id.  We believe the first distinction is
  critical.

       The central premise of defendant's argument is that a violation of the
  transfer statute deprives  the transferee court of jurisdiction, and, as a
  result, defendant can now void the transfer despite the  fact that he
  agreed to it, benefitted from it and pled guilty to the offense.  We
  disagree that the  transferee court lacks jurisdiction.  The district court
  has jurisdiction over a criminal charge that a  fifteen-year-old committed
  sexual assault.  See 4 V.S.A. § 439 (district court has jurisdiction over 
  felonies); 13 V.S.A. § 3252(a) (sexual assault is a felony punishable by up
  to twenty years 

 

  imprisonment); 33 V.S.A. § 5502(a)(1)(B) (for offenses listed in § 5506(a),
  juvenile over fourteen  years of age "shall be subject to criminal
  proceedings as in cases commenced against adults"); §  5506(a)(10) (listing
  sexual assault); State v. Buelow, 155 Vt. 537, 540, 587 A.2d 948, 950
  (1990)  (criminal court has exclusive original jurisdiction over cases
  involving persons between fourteen and  sixteen who are charged with
  certain serious crimes).  An improper transfer to district court may be  an
  error if properly raised and preserved, but we do not believe it deprives
  the district court of  jurisdiction.  Thus, "a plea of guilty operates as a
  waiver of procedural shortcomings, insofar as such  defects are subject to
  waiver."  State v. Armstrong, 148 Vt. 344, 346, 533 A.2d 1183, 1184 (1981) 
  (citation omitted).  The unauthorized transfer in this case was a
  procedural shortcoming that was  waived by the guilty plea.

       Defendant next argues that he was not subject to the conditions of his
  probation while in  custody, before beginning his probationary term.  Thus,
  he argues, Condition 15 did not apply to him  until he served his minimum
  sentence and was released on probation, and specifically did not apply  to
  him when he was at Whitney Academy.  In order to get around State v. St.
  Francis, 160 Vt. 352,  628 A.2d 556 (1993), defendant argues we should
  reach this result as the proper construction of the  probation agreement.

       The court below held that this case is governed by St. Francis, in
  which the defendant was  furloughed just before probation and, while on
  furlough, violated probation.  This Court held that  "probation may be
  revoked for acts committed by a defendant after imposition of the sentence
  but  before commencement of the probationary term."  Id. at 354, 628 A.2d 
  at 557.  We based our  decision on the wording of Vermont's probation
  statutes, the holdings from other state and federal  courts and the logic
  of the State's position.  In considering the State's position, we held:



     A court's decision to suspend all or part of a sentence is conditioned 
     on the assumption that the defendant will refrain from certain 
     behavior.  Thus, from the time conditions are imposed at sentencing, 
     the defendant is on notice to conform his conduct to those conditions, 
     and at any time thereafter the court may impose the underlying 
     sentence based on the defendant's failure to do so.

  Id. at 354, 628 A.2d  at 557-58.  

       Defendant  tries to distinguish St. Francis by arguing that the record
  does not support the  interpretation that all pre-release behavior is
  covered by the probation conditions, and by further  arguing that the
  parties and the court intended Condition 15 to apply only after defendant's
  release  from the unsuspended part of his sentence.  Under defendant's
  theory, failure in his pre-release  therapy could result only in adverse
  prison classification and parole board action, not probation  revocation.

       Although we agree that we must construe the probation agreement
  according to contract  principles, see State v. Duffy, 151 Vt. 473, 477,
  562 A.2d 1036, 1038 (1989), defendant reads St.  Francis too narrowly.  The
  point of St. Francis is that probation, as created by the Vermont statutory 
  scheme, empowers the State to impose and enforce conditions on a
  defendant's behavior that apply  from the time the probation agreement is
  signed.  Although we do not have to decide whether the  State can bargain
  away its power, we do not see why it would ever do so.  It would make no
  sense,  for example, for the State to say that Condition 15 no longer
  applies after the first two years of  probation following completion of the
  unsuspended part of the sentence although probation  continued thereafter. 
  Nor would it make sense for the State to bargain away its right to revoke 
  probation for a violation of Condition 15 after a certain date.  We think
  it makes no more sense for  the State to bargain away its power with
  respect to the time following sentencing until defendant is 

 

  released from incarceration.  Probation as established by Vermont law
  includes this period as well as  any other covered by the sentence.  To the
  extent we may view this as a contract construction  question, we hold that
  a probation agreement assumes that the State retains the full extent of 
  probation powers given by statute, including a term that commences with the
  signing of the  agreement.  We leave to another day whether an explicit
  waiver of part of those powers would be  valid.

       There is no explicit waiver here.  The probation order, signed on the
  date of defendant's  sentencing, provides that "defendant is placed on
  probation in the care and custody of the  Commissioner of Corrections until
  further order of the Court under the following conditions . . . ."  
  Nothing in the language suggests that the probation was not to commence
  immediately.  Indeed,  defendant's argument is that only Condition 15 was
  deferred, to apply only after the end of the  unsuspended term.  Nothing in
  its language, however, differentiates it from other conditions based on 
  the date of its applicability.  Defendant argues that the specific included
  circumstance, "to include  residential treatment if necessary," applies
  only when defendant is released and shows the whole  condition applies only
  after he serves the unsuspended sentence.  Even if we accept that the
  specific  circumstance would apply only after defendant is released, we do
  not agree that we can read the  whole condition as so limited.  We hold
  that defendant was properly charged with a violation of  Condition 15 even
  though he was serving the unsuspended term of incarceration.

       Defendant finally argues that the court's one-year delay between the
  conclusion of the  probation-violation merits hearing and the issuance of a
  decision denied him due process of law.   Defendant first contends that in
  assessing the impact of delays in probation revocation cases we  should
  apply the "speedy trial" test laid out in Barker v. Wingo, 407 U.S. 514
  (1972).  He then 

 

  contends that under the four factors laid out in Barker - the length of the
  delay, the reason for the  delay, the defendant's assertion of his right,
  and prejudice to the defendant, see id. at 530-32 - the  delay in this case
  violated his due process rights.

       Defendant poses the choice of a standard as between the more favorable
  standard of Barker,  as interpreted in United States v. Companion, 545 F.2d 308, 311 (2d Cir. 1976), and a more rigid  standard in State v. Ellis, 149
  Vt. 264, 267-68, 542 A.2d 279, 282 (1988).  Defendant distinguishes  Ellis
  because it involved the delay between the issuance of a probation violation
  arrest warrant for a  probationer found in another state and the
  probationer's transport to Vermont to face violation  proceedings.

       We doubt that the choice of a relevant standard will affect the
  outcome in this case.  As we  said in a comparable due process challenge to
  the failure of the court to render a timely decision on a  sentence
  reconsideration motion, "[t]he major element of due process delay is
  'substantial prejudice'  caused by the delay."  State v. Dean, 148 Vt. 510,
  514, 536 A.2d 909, 912 (1987) (quoting State v.  Hall, 145 Vt. 299, 307,
  487 A.2d 166, 171 (1984)); see also In re O'Dea, 159 Vt. 590, 597-98, 622 A.2d 507, 512 (1993) (same).  Similarly, in assessing speedy trial claims
  under the Barker standard,  we have emphasized that prejudice is the most
  important factor and have held "[w]here there is no  prejudice to the
  defense at trial, a speedy-trial claim cannot prevail."  State v. Turgeon,
  165 Vt. 28,  35, 676 A.2d 339, 343 (1996).

       Because the claim involves decisional delay, by definition there was
  no prejudice to  defendant's ability to present his case.  Moreover,
  defendant's probation was revoked, and a longer  sentence of incarceration
  was imposed, thus a more timely decision would not have resulted in 
  earlier release from custody.  Although defendant complains that he was
  denied sex offender 

 

  treatment while remaining in limbo without a decision, he will have an
  adequate opportunity to  receive such treatment during the remainder of his
  sentence.  We cannot find sufficient prejudice to  conclude that defendant
  was denied due process of law.

       Because we affirm the court's decision to revoke defendant's
  probation, we agree that the  superior court was correct in denying the
  writ of habeas corpus.  Defendant was properly held under  the revocation
  decision; the habeas corpus petition was therefore moot.

       Affirmed.


                                       FOR THE COURT:

                                                                    
                                       ______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Defendant was held in prison following the completion of his
  six-year sentence in August  1997, because he was unable to post the
  $25,000 bail imposed during the pendency of the probation-violation
  proceedings.