Vermont v. Provost

State v. Provost (2013-201)

2014 VT 86

[Filed 01-Aug-2014]

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 by email at: JUD.Reporter@state.vt.us or by mail at: 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.

2014 VT 86

No. 2013-201

State of Vermont

Supreme Court

On Appeal from

     v.

Superior Court, Chittenden Unit,

Criminal Division

Scott Provost

May Term, 2014

Brian J. Grearson, J.

Thomas J. Donovan, Jr. Chittenden County State's Attorney, and Andrew R. Strauss,

  Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Joshua S. O'Hara and Rebecca Turner,

  Appellate Defenders, Montpelier, for Defendant-Appellant.

PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

¶ 1. CRAWFORD, J.   Defendant Scott Provost appeals from the decision of the criminal division that he violated his probation when he refused to admit the offense and thus failed to complete a domestic violence program in a timely manner, and engaged in threatening behavior while attempting to sign up for the program eight months after his conviction.  Defendant argues that the original one-year fixed term of probation expired during the pendency of this appeal, excusing him from the consequences of any subsequent violations.  We affirm the decision of the trial court on the ground that the record supports the trial court's determination that defendant violated the terms of his probation by his delay in enrolling in and completing the domestic violence program.

¶ 2. On June 20, 2012, defendant pled guilty to one count of second-degree aggravated domestic assault, one count of resisting arrest, and one count of violation of conditions of release.  He received an agreed sentence of nine months to three years, all suspended.  His probation conditions included a requirement that he refrain from violent or threatening behavior and that he participate in the Domestic Violence (DV) Solutions program.  The term of probation was fixed at one year and expired by its original terms on June 20, 2013.  

¶ 3. The DV Solutions program is run by Spectrum Youth and Family Services.  Defendant cancelled two scheduled intakes for the program in January 2013 because he lacked the $20 fee for the meeting.  On February 13, 2013, he met with a counselor from Spectrum for another scheduled intake.  The meeting went badly.  The counselor terminated it because she perceived defendant's behavior as threatening and because defendant denied committing the offense.  Defendant denied threatening her but admitted in court that his behavior was "not very civil" and that he "wasn't very nice that day."  

¶ 4. As a result of the February meeting, defendant was cited for violation of probation.  He was specifically charged with failing to complete the DV Solutions program in a timely fashion and engaging in threatening behavior.  Following a merits hearing, the trial court found that defendant had violated both conditions and set the case for sentencing at a later date.

¶ 5. At the sentencing hearing, defendant's probation officer advocated that probation be revoked and that the court impose the underlying sentence of nine months to three years with a recommendation that he complete the Discovery Program for violent offenders while in prison.  Through counsel, defendant sought to remain on probation and requested additional time to complete the DV Solutions program.  His attorney stated:

  So we would be asking for the court to imposeto reimpose the original conditions of probation with an extension of the term to allow for him to complete DV Solutions.  Clearly if he's not able to do it, he would be back here on a violation of probation, and I think at that point the department's request for revocation would be on more solid footing than it is at this point.  

Defendant said the same thing:

  I would just ask the court to grant me my request to continue [on probation] and to prove to the court and to Probation and Parole that I am willing to follow through and accomplish these recommendations and these court orders of these classes and willing to participate, not just show up.

¶ 6. The trial court accepted defendant's position.  The judge extended the term of probation by another year to June 2014.  With respect to the violation based on threatening behavior, he ordered defendant to write a letter of apology to the intake officer at Spectrum.  

¶ 7. Defendant appealed.  While his appeal was pending, in August 2013, defendant's probation officer filed a second violation-of-probation complaint based on a violation of a no-alcohol condition and defendant's dismissal from the DV Solutions program for failure to attend program meetings on four dates.  The probation officer filed a third complaint in September 2013 for a separate violation of the no-alcohol condition and for violent or threatening behavior.  Defendant entered an admission to the August violation.  The court revoked probation and imposed a sentence of three months to three years to serve. 

¶ 8. The State must establish by a preponderance of the evidence that a defendant violated a condition of probation.  28 V.S.A. § 302(a)(4).  If a violation is established, the court may revoke probation and impose the underlying sentence, continue probation, or alter the conditions of probation.  Id. § 304.  Whether a violation occurred is a mixed question of law and fact requiring the trial court to determine what actions the defendant took and whether those actions violated the probation conditions.  State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996).  "We will not disturb the court's findings if they are fairly and reasonably supported by credible evidence, and we will uphold the court's legal conclusions if reasonably supported by the findings."  State v. Decoteau, 2007 VT 94, ¶ 8, 182 Vt. 433, 940 A.2d 661.

¶ 9. In this case, the evidence is undisputed that defendant failed to enter or complete the DV Solutions program in a timely manner.  He missed two meetings and was by his own admission rude at the third, causing the meeting to be terminated early.  He also refused to admit the conduct underlying his offense at the intake interview in violation of program requirements.  See State v. Stokes, 2013 VT 63, ¶¶ 26-28, ___ Vt. ___, 83 A.3d 567 (upholding finding of probation violation where defendant, whose probation conditions included domestic-violence counseling, refused to satisfy threshold requirement for program that he admit to the offense of which he was convicted).  All of these factors created substantial delay in defendant's completion of programming.  At sentencing, defendant agreed that he had not completed the program and requested that his term of probation be continued so that he could complete programming.  The trial court accepted his request and continued the term of probation for another year.  

¶ 10. The record of delay and defendant's refusal to admit are sufficient to support the violation found by the trial court and the extension of the probation term by an additional year.   We do not reach the issue of whether the evidence is sufficient to support a violation of the condition proscribing threatening behavior.  The requirement that defendant write a note of apology was not challenged on appeal.  As defendant and his attorney both stated to the trial court, the delay in completing the program was a sufficient reason for extending the term of probation.      

Affirmed.

FOR THE COURT:

Associate Justice