State v. Klunder

State v. Klunder (2004-356); 179 Vt. 563; 892 A.2d 927

2005 VT 130

[Filed 13-Dec-2005]

                                 ENTRY ORDER

                                 2005 VT 130

                      SUPREME COURT DOCKET NO. 2004-356

                             OCTOBER TERM, 2005

  State of Vermont	               }       APPEALED FROM:
                                       }
       v.	                           }       District Court of Vermont,
                                       }       Unit No. 1, Windsor Circuit
  Steven Klunder	                     }
                                       }       DOCKET NO. 1101-8-02 WrCr
  	
                                               Trial Judges: Paul F. Hudson
                                                             Theresa S. DiMauro
                                                             Mary Miles Teachout

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

       ¶  1.  Defendant Steven Klunder appeals from the trial court's
  finding that he violated the terms of his probation, and its August 2004
  order denying his pro se request to modify the terms of his probation.  We
  affirm in part and reverse in part.

       ¶  2.  In September 2003, defendant pled no contest to felony sale of
  cocaine.  As part of a plea  agreement, the State agreed not to charge
  defendant with sexual misconduct toward a ten-year-old female, E.N., and in
  exchange, defendant agreed to a number of probation conditions designed to
  address that latter misconduct.  Specifically, he agreed to have no contact
  with E.N., or with any minor females under age sixteen, without permission
  of his probation officer, and to attend "individual mental health
  counseling with an emphasis on appropriate adult-child physical and sexual
  boundaries."  The agreement provided that defendant must participate in
  counseling as ordered by the court or his probation officer, and that he
  must participate to the satisfaction of his probation officer.  The trial
  court accepted the plea agreement, and added a curfew and residency
  restriction. (FN1)  This latter provision required defendant to reside and
  work where directed by his probation officer. 
                       
       ¶  3.  Shortly thereafter, E.N.'s family contacted defendant's
  probation officer to express concern that defendant was living with his
  mother a short distance away from E.N.'s home.  Defendant's probation
  officer informed defendant that he could not continue to live with his
  mother.  In January 2004, defendant filed a motion to amend the terms of
  his probation to allow him to continue living with his mother, asserting
  that his probation officer was acting arbitrarily.  At a hearing on the
  motion, the State presented evidence that defendant's mother lived less
  than one-half mile from E.N.'s home.  E.N. was frightened of defendant, and
  she had seen defendant in the neighborhood.  On one occasion, defendant
  waved to her.  The trial court denied defendant's request on the record,
  explaining that E.N. should not have to live in constant fear of seeing
  defendant.  The court found that defendant had agreed to the provisions in
  the probation order, and the court had included the extra conditions to
  address this type of situation.  In light of defendant's request, however,
  the court added a special condition to allow defendant to visit his mother
  on specific dates and times as approved by his probation officer. 
  Defendant did not object to this condition, nor did he appeal from the
  court's order.  

       ¶  4.  In March 2004, defendant's probation officer filed a
  complaint alleging that defendant had violated probation by failing to
  participate in mental health counseling with a counselor in the field of
  sexual abuse.  Defendant had apparently been in counseling with an
  individual at Health Care and Rehabilitative Services of Southeastern
  Vermont (HCRS).  Defendant's probation officer informed defendant that the
  counselor at HCRS was not specifically qualified to provide sexual offender
  counseling.  At a July 2004 merits hearing, the probation officer testified
  that he had given defendant the choice of three providers from whom he
  could receive mental health counseling with an emphasis on appropriate
  adult-child physical and sexual boundaries.  These individuals were chosen
  because the Department of Corrections considered them to have expertise in
  the field of child sexual abuse.  Defendant chose one of them-Mr. Kieran
  Zito-as his counselor, and he met with Mr. Zito twice to assess his
  counseling needs.  Mr. Zito informed the probation officer that he would
  not meet with defendant again because defendant adamantly stated that he
  had never done anything sexually inappropriate with a child.  Mr. Zito
  stated that he could not perform adult-child sexual boundary counseling
  with an individual who was in denial.  The probation officer discussed the
  discontinuation of counseling with defendant, and defendant repeatedly
  advised him that he had done nothing sexually inappropriate with a child. 
  Defendant stated that he was willing to continue to meet with Mr. Zito as
  long as he did not need to acknowledge that anything inappropriate had
  happened.  At the close of the hearing, the court found on the record that
  defendant had violated the terms of probation by failing to engage in
  counseling as required by his probation order.  The court continued
  defendant on probation but ordered him to engage in counseling as required
  by his probation order within sixty days.  

       ¶  5.  In July 2004, defendant filed a pro se letter asking the
  court to modify the conditions of his probation.  Specifically, he sought
  the removal of the residency and counseling conditions, as well as the
  condition restricting his visits to his mother's home.  Defendant asserted
  that the conditions had not been part of his original plea agreement and
  they were more onerous than the terms to which he had agreed.  The trial
  court denied the motion in an entry order, stating that defendant's current
  probation conditions had been set at a hearing where defendant had been
  represented by counsel.  The court explained that defendant had given no
  reason why the conditions should be changed.  Defendant appealed from this
  order, as well as the court's earlier finding that he had violated
  probation.

       ¶  6.  We turn first to the court's finding that defendant violated
  the terms of his probation.  Defendant argues that the trial court erred
  because the evidence showed that he was willing to continue to meet with
  the counselor, although he "had a problem with admitting that something
  inappropriate with a child had happened."  Defendant maintains that he was
  treated as though he had agreed to undergo sex offender treatment, and as a
  result, he was not given the opportunity to engage in the type of
  counseling that he had agreed to as part of the plea agreement.  Defendant
  asserts that he was forced into noncompliance when the counselor
  discontinued the meetings, at which point the Department of Corrections
  filed a probation violation complaint.
   
       ¶  7.  The State must establish that a probation violation has
  occurred by a preponderance of the evidence.  State v. Gleason, 154 Vt.
  205, 216, 576 A.2d 1246, 1252 (1990).  "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."  State v. Austin, 165 Vt. 389,
  398, 685 A.2d 1076, 1082 (1996) (citations, internal quotation marks, and
  emphasis omitted).  The question of whether a probation violation has been
  established presents a mixed question of fact and law.  Id.  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. (quotations
  omitted).  We will uphold the court's factual findings if they are fairly
  and reasonably supported by any credible evidence; the court's legal
  conclusion will stand if it is reasonably supported by its findings.  Id.   

       ¶  8.  In this case, the trial court concluded that defendant had
  violated his probation conditions because he had declined to engage in the
  type of counseling directed by the probation officer and that he had agreed
  to as part of the plea agreement, and his non-compliance was volitional. 
  This conclusion is not supported by the evidence.  Pursuant to the terms of
  the plea agreement, defendant specifically agreed to attend "individual
  mental health counseling with an emphasis on appropriate adult-child
  physical and sexual boundaries."  Absent any warning that admitting to
  particular sexual misconduct would be required, such an admission was
  neither an express nor a reasonably implied condition of his boundaries
  counseling. 

       ¶  9.  We have recognized that "[a]lthough a probation agreement is
  in no sense a strait-jacket, 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, defendant is entitled to know what
  conduct is forbidden before the initiation of a probation revocation
  proceeding."  State v. Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75 (2001)
  (mem.) (quotations and citations omitted).  Under the terms of the
  probation conditions in his plea agreement, defendant could not have known
  that his failure to make a specific admission to acts of child sexual abuse
  would constitute a violation of his probation.  Defendant was neither
  charged with nor convicted of sexual assault.  Had he been convicted of
  such a crime, his probation order could have included a condition requiring
  him to admit the underlying acts.  See State v. Peck, 149 Vt. 617, 622-23,
  547 A.2d 1329, 1333 (1988) (affirming imposition of probation condition
  requiring completion of counseling in a sexual offender's group where
  defendant charged with lewd and lascivious conduct involving a child under
  the age of sixteen pled nolo contendere to simple assault, because assault
  was of a sexual nature).  The plea agreement in this case was too vague to
  hold defendant responsible for making admissions to acts of sexual abuse.  
        
       ¶  10.  Thus, we cannot conclude, as we did in Peck, that defendant
  had fair notice that he would risk a probation violation by failing to
  admit sexual misconduct as part of his counseling.  In Peck, the defendant
  signed a probation agreement that included a condition requiring him to
  complete counseling to the full satisfaction of his probation officer in
  the context of a charge stemming from his sexual misconduct with a child. 
  Before the defendant entered into the agreement, the district court
  reviewed the presentence investigation report, in which mental health
  professionals opined that the defendant was likely to recidivate.  During
  sentencing, the district court informed the defendant that his misconduct
  was serious, underscoring the "gravity of the sexual offense."  Id. at 618,
  547 A.2d  at 1330.  Thus, when the defendant signed the agreement, he was on
  notice that his counseling would be focused on his status as a sex offender
  and the sexual nature of the offense, and in turn that his failure to admit
  the offense would violate his probation.  Id. at 620, 547 A.2d  at 1331.  By
  contrast, in this case, defendant pled nolo contendere to a non-sexual
  offense, with the condition requiring "counseling with an emphasis on
  appropriate adult-child physical and sexual boundaries" coming about in
  response to an uncharged act of sexual misconduct.  By its terms, that
  condition did not place defendant on notice that he would have to undergo
  sex-offender counseling, and thus admit to sexual misconduct.  And, unlike
  in Peck, the circumstances surrounding defendant's plea agreement and
  sentencing did not put him on such notice either.  Accordingly, we reverse
  the trial court's ruling that defendant violated the terms of his
  probation.

       ¶  11.  Defendant next argues that the court erred in denying his
  July 2004 pro se motion to modify the conditions of his probation. 
  Defendant asserts that the court imposed a more restrictive condition in
  February 2004 when it allowed him to visit his mother only as approved by
  his probation officer. 

       ¶  12.  As indicated above, the trial court denied defendant's pro se
  request in an August 2004 entry order, in part because defendant failed to
  offer any reasons why the conditions should be modified.  Putting aside the
  question of whether the arguments he now raises on appeal were presented to
  the trial court, we find no basis to disturb the trial court's rejection of
  his request.  The condition that defendant challenges was imposed in
  February 2004, in response to defendant's first motion to modify, which was
  filed by defendant's attorney in January 2004.  At that time, the trial
  court granted defendant's request in part by allowing him to visit his
  mother as approved by his probation officer.  See 28 V.S.A. § 253(a)
  ("During the period of probation, the court, on application of a probation
  officer or of the offender, or on its own motion, may modify the
  requirements imposed upon the offender or add further requirements
  authorized by section 252 of this title.").  Defendant did not object to
  the imposition of this condition at the January 2004 hearing, nor did he
  file a challenge to this condition within a reasonable period of time.  See
  id. § 253(b) ("Whenever the court proposes any modification of the
  conditions of probation, the probationer shall have a reasonable
  opportunity to contest the modification prior to its imposition."). 
  Defendant's challenge to this condition came five months after it was
  imposed.  We therefore do not address defendant's assertion that the
  evidence presented at the January 2004 hearing was insufficient to support
  the  court's February 2004 modification order.  We find no error in the
  trial court's August 2004 denial of defendant's pro se motion to modify.  

       Affirmed in part and reversed in part.


                                       BY THE COURT:

                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund,  Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice


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                                  Footnotes


FN1.  These requirements were orally imposed by the court and accepted by
  defendant at the Rule 11 hearing, but they were inadvertently omitted from
  the written plea agreement.  The written agreement was amended to reflect
  these requirements in January 2004.