State v. Hammond

State v. Hammond (2000-401); 172 Vt. 601; 779 A.2d 73

[Filed 01-Aug-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-401

                               JUNE TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Chittenden Circuit
                                       }
Sean Hammond	                       }	DOCKET NO. 100-1-98 Cncr

                                                Trial Judge: Brian L. Burgess 

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


       Defendant appeals from a decision of the district court finding him in
  violation of his conditions of  probation.  He argues on appeal that he was
  not given sufficient notice of the condition he was found to  have violated
  and that the record does not support a finding that he violated a condition
  voluntarily.  We  reverse.

       Defendant was charged with sexual assault in January 1998.  He pled
  guilty and was sentenced to  eight years in prison, with all but three
  years suspended.  Conditions of defendant's probation included a 
  requirement that he successfully complete the Windsor in-house sex offender
  counseling program and a  requirement that he successfully complete any
  other counseling directed by his probation officer.   Defendant was
  assessed for admission into the Vermont Treatment Program for Sexual
  Aggressors  (VTPSA) at the Windsor Correctional Facility, but was found
  ineligible at that time based on the nature of  his crime.  The assessment
  team recommended that he participate in the Cognitive Self Change (CSC) 
  program at the facility instead, deeming it more appropriate for defendant. 
  Because of this change, the  assessment team thought it better that he be
  referred to VTPSA after his release - he would not have had  enough time to
  complete both the CSC program and VTPSA during his period of incarceration. 
  There is  no indication in the record, however, that this decision by the
  assessment team was ever communicated to  the defendant.  Nor does the
  record reflect that this alternative plan was approved by defendant's
  probation  officer.  Defendant did testify, however, that he was told that
  if he did not participate in the CSC program,  he would be "shipped to
  Virginia." 

       Several months after his acceptance into the CSC program, the program
  was moved to the Northern  State Correctional Facility in Newport, and
  defendant moved with the program.  He was eventually  terminated from the
  program five months before his scheduled release date, in part because he
  wrote  several inappropriate letters to women while in prison and in part
  because he was not participating  satisfactorily in the CSC program.  When
  informed of the thirty-day period in which he could redeem  himself and be
  readmitted to the program, defendant responded this would not be necessary
  as he was  scheduled to be released soon.  Shortly thereafter, defendant
  was assaulted by another prisoner and  hospitalized for a month.  He was
  cited by his probation officer for a violation of his conditions of 
  probation because of his failure to successfully complete the CSC program. 
  Prior to that, defendant had  never met with his probation officer, nor had
  any communications from her. 

 

       Following a hearing, the district court found that by failing to
  complete the CSC program, defendant  had violated his conditions of
  probation.  The court based its decision on its finding that defendant "was 
  placed on reasonable notice that he was going to be required to complete
  the [CSC program] before being  able to enter into [VTSPA]."  The court
  also found that defendant was told that he could complete VTSPA  after his
  release. (FN1)  The court revoked his probation and modified his sentence
  such that all but four  years were suspended, and defendant was ordered to
  complete the CSC program in-house and the sex  offender programming
  following his release. 

       Defendant argues that he was not given sufficient notice that
  completion of the CSC program was a  condition of probation.  Furthermore,
  he argues that because he was found ineligible for VTSPA,  satisfaction of
  that portion of his conditions of probation was placed outside of his
  control.  The trial court  concluded that because completion of CSC by
  defendant was a necessary precondition to his admission to  VTSPA, his
  removal from the program in effect was a failure to successfully
  participate in the VTSPA  program as required by defendant's sentencing
  order.

       Although a probation agreement is in no sense a "straight-jacket,"
  State v. Emery, 156 Vt. 364, 373,  593 A.2d 77, 82 (1991), and a defendant
  may be put on notice as to what may constitute a probation  violation
  merely by the instructions and directions of a probation officer, State v.
  Peck, 149 Vt. 617, 619-20, 547 A.2d 1329, 1331 (1988), "defendant is
  entitled to know what conduct is forbidden before the  initiation of a
  probation revocation proceeding," State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1201  (1986).  Due process requires it.  Peck, 149 Vt. at 619,
  547 A.2d  at 1331.

       Defendant testified that he was never informed that (1) successful
  completion of the CSC program  constituted one of his conditions of
  probation, (2) failure to complete the CSC program would be a  violation of
  his conditions of probation, or (3) completion of the CSC program was a
  necessary  precondition to his satisfying the condition that he
  successfully complete VTSPA.  This testimony was  unrebutted, except for
  the testimony of the CSC coordinator in Newport who simply testified that
  when she  warned defendant a month before his termination from the program
  that his performance was not up to par,  she told him that termination from
  the program "could have an effect on his upcoming probationary  status." 
  When defendant's caseworker was asked if he ever communicated to defendant
  that successful  completion of the CSC program was a condition of his
  probation or whether completion of VTSPA  remained a condition of probation
  given that defendant had been found ineligible for the program, he 
  answered:

    I don't really want to speak much about things I don't know.  I
    know that he  came to Newport and was intended to go into the
    central level of Cognitive Self  Change Program.  Whatever those
    folks do within that program for their criteria  and their
    assessment levels is beyond my grasp.

 

  Furthermore, while conditions of probation may take effect while a
  defendant is still incarcerated, State v.  St. Francis, 160 Vt. 352, 354,
  628 A.2d 556, 558 (1993), this defendant's probation officer failed to make 
  any contact with him whatsoever. (FN2) 

       Given this state of the record, it does not appear that defendant was
  given reasonable notice by any  Corrections personnel that his
  participation in the CSC program had become part of his conditions of 
  probation, either as a direct condition or as a prerequisite to the VTPSA
  condition, and the trial court's  finding of such was clear error.  See
  Simendinger v. City of Barre, 12 Vt. L. W. 30, 30 (2001) (factual  findings
  will be set aside as clearly erroneous if appellant is able to demonstrate
  that there is no credible  evidence in the record to support the findings). 
  Additionally, defendant's finding of ineligibility for  VTSPA cannot form
  the basis for a violation of the condition that he successfully complete
  that program  prior to release.  See Bubar, 146 Vt. at 405, 505 A.2d  at
  1201-02 (probation conditions may not be put  beyond a probationer's
  control).  Therefore, the court's finding of a violation of probation is
  not supported  by the record. 


       Reversed.



                                       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




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                                  Footnotes


FN1.  There does not appear to be any support in the record for this
  finding.  In fact, the only  evidence adduced on this point at the hearing
  was defendant's testimony that his caseworker at the  Newport facility told
  him that he was in violation of his conditions of probation because of his 
  failure to complete VTSPA while he was incarcerated.  Furthermore, the fact
  that defendant  brought a petition for habeas corpus because he anticipated
  being found in violation of probation  for his failure to complete VTSPA
  prior to release belies the court's assumption that he was told  by
  corrections personnel that he could participate in VTSPA post-release. 

FN2.  We note that the statutory scheme does not provide for the delegation
  of authority to  impose or modify probation conditions to prison
  caseworkers.  See 28 V.S.A. §§ 252 & 253  (providing for the imposition and
  modification of conditions of probation by the court); see also  State v.
  Moses, 159 Vt. 294, 301, 618 A.2d 478, 482 (1992) (cautioning against
  overbroad  delegations of power by the court to probation officers and
  stating "the Legislature placed the  power to impose probation conditions
  on the court, and not on the corrections department and its  employees").