2013 VT 57


State v. Johnstone
(2011-246)
 
2013 VT 57
 
[Filed 02-Aug-2013]
 
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.
 
 
 

2013 VT 57

 

No. 2011-246

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington
  Unit,


 


Criminal Division


 


 


Jason Johnstone


June Term, 2012


 


 


 


 


Howard
  E. Van Benthuysen, J.


 

Kristin G. Wood, Washington County Deputy State’s Attorney, Barre, for Plaintiff-Appellee.
 
Allison N. Fulcher
of Martin & Associates, Barre, for
Defendant-Appellant.
 
 
PRESENT:   Reiber, C.J.,
Dooley, Burgess and Robinson, JJ., and Kupersmith, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
ROBINSON, J.   The critical question in this
case is whether a probationer can be charged with violating a probation
condition prohibiting “violent or threatening behavior” on the basis of
menacing statements he made about his probation officer without any evidence
that he intended for his probation officer to hear or learn of the
statements.  We conclude that the State’s allegations did not make out a
prima facie case of a probation violation and accordingly reverse. 
¶ 2.            
After pleading guilty to several charges stemming from different
incidents, defendant Jason Johnstone was sentenced,
in January 2011, to twenty days to serve on a work crew with the balance of his
two-to-twelve-month sentence suspended with
probation.  One of his probation conditions, standard “Condition M,”
provided, “Violent or threatening behavior is not allowed at any time.” 
Defendant’s probation officer testified that she reviewed the conditions with
defendant on the date of sentencing and that defendant signed and acknowledged
that he read and understood each condition.  
¶ 3.            
Three months later, defendant’s probation officer filed a
complaint alleging various violations of probation (VOPs).  The day after
his arraignment for those VOPs, defendant’s probation officer filed a second
VOP complaint alleging a violation of Condition M on account of statements
defendant made after the arraignment.  That second VOP is the subject of
this appeal.
¶ 4.            
The complaint alleges that following his arraignment on the first
set of probation violations, while his probation officer spoke to him about the
conditions the officer would be imposing, defendant was angry.  Defendant
said to his probation officer, among other things, “You took my [expletive]
baby sitter away from me, I hope you are [expletive] happy.”  There is no
allegation that he threatened harm to his probation officer at that time. 

¶ 5.            
After this exchange in the courthouse, defendant and his
probation officer parted ways.  The probation officer exited the court
building through the back door, while defendant and his ex-girlfriend
presumably left through the front.  As the probation officer slowly walked
toward the front of the courthouse she could hear defendant and his
ex-girlfriend yelling in front of the courthouse.  Defendant continued to
shout expletives concerning his treatment by the probation officer and the
court.  The probation officer heard defendant and his ex-girlfriend
talking about calling the media and the Commissioner of Corrections, and at one
point heard defendant say that his probation officer was “going to end up in a
body bag.”  There is no allegation that defendant saw his probation officer
coming up the side of the building, knew the probation officer was within
earshot, or intended for his probation officer to hear the statements firsthand
or even indirectly.  The “body bag” comment was the basis for the second
VOP.
¶ 6.            
Defendant moved to dismiss the second VOP complaint, relying
heavily on our decision in State v. Sanville,
2011 VT 34, 189 Vt. 626, 22 A.3d 450.  In Sanville,
we concluded that Condition M was too vague to fairly inform the defendant that
his expression of “displeasure at a perceived injustice”—consisting of what
this Court described as “mouthy and obnoxious” statements to his landlord—would
subject him to a loss of freedom.  Id. ¶¶ 10-11.
 Defendant argued that his alleged statement here was likewise nothing
more than “mouthy,” “obnoxious,” and “blustering about a perceived
injustice.”  In light of our decision in Sanville,
defendant argued, Condition M is too vague to fairly warn him that his
statements were prohibited.  The Court denied the motion.  
¶ 7.            
Subsequently, the parties presented the court with a proposed
plea agreement pursuant to which defendant would plead guilty to a charge and
admit two probation violations, and the State would dismiss the second VOP
relating to the body-bag comment.  When the court asked the parties about
the second VOP, defense counsel explained that the agreement contemplated
dismissal of that complaint because the conviction would be appealed if the VOP
relating to the body-bag comment were included.  The court concluded that
it would reluctantly accept the proposed plea agreement if defendant admitted
to the VOP relating to the body-bag statement as part of the package.  The
court explained, “[I]t’s important that he take responsibility for this misconduct
here.  If he wants to appeal, he’s certainly welcome to do that.”  
¶ 8.            
Defendant agreed to admit to the second VOP as part of the
overall deal.  In the Rule 11 colloquy between the court and defendant
regarding the alleged violation, defendant admitted to the facts alleged in the
second VOP complaint and the court advised defendant that, although he was
giving up his right to a merits hearing on the second VOP “on those two
theories that we talked about,”[1]
and there would not be any further proceedings in the trial court, he was “at
liberty to take an appeal if [he] want[s].”  At no time did the State
object to or dispute the court’s proposed extension of defendant’s right to
appeal.  After being told that he could appeal, defendant admitted to the
second VOP complaint.  The court again reiterated that he could appeal the
finding of violation if he wished.  This appeal followed. 
I.
¶ 9.            
The State argues that defendant, having admitted to the violation,
cannot now challenge on direct appeal the factual basis for his conviction.
 Defendant counters that he admitted to the violation based on the
body-bag comment only after the court assured him that after his admission he
could appeal the legal rulings underlying the court’s earlier refusal to
dismiss the charge.  If those assurances were wrong, defendant argues, his
misunderstanding to the contrary rendered his admission unknowing and
involuntary.  In that event, the State answers, defendant’s avenue for
relief is limited to a timely motion to withdraw his plea based on facts yet to
be found relating to the change-of-plea proceeding, with the possibility of an
appeal afterward from any adverse ruling.  
¶ 10.        
We might be persuaded that no direct appeal lies from his change
of plea if defendant were simply alleging a violation of Rule 11 change-of-plea
procedures, but that is not the crux of his claim.  It is clear from the
record that, instead, defendant seeks to appeal from what was, essentially, a
conditional plea by which he reserved the right to appeal a contested issue of
law while admitting to the facts as charged.  The State did not object
below to the court’s repeated assurances to defendant that, despite admitting
to the factual allegations, he retained his right to appeal the court’s legal
rulings upholding the charge, and the State does not now challenge defendant’s
characterization of the discussions surrounding defendant’s admission of the
second VOP.  
¶ 11.        
Conditional pleas reserving issues for appeal are not
uncommon.  Vermont Rule of Criminal Procedure 11(a)(2)
provides that, “[w]ith the approval of the court and
the consent of the state, a defendant may enter a conditional plea of guilty
. . . , reserving in writing the right, on appeal from the
judgment, to review of the adverse determination of any specified pretrial
motion.”  Plea agreements are contractual in nature and are interpreted
according to contract law.  State v. Byrne, 149
Vt. 224, 225-26, 542 A.2d 276, 277 (1988).  The parties are
entitled to rely upon the express terms of the agreement.  State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276
(1990) (mem.).  Although Rule 11 refers
to conditional pleas made in writing, the absence of a writing does not negate
a conditional plea when “[t]he plea hearing transcript plainly shows that both
parties agreed to the conditional plea, that the [] court accepted the plea,
and that the court understood its ruling on [defendant’s] motion to dismiss was
the specific (and dispositive) issue for appeal.”  United
States v. Yasak, 884 F.2d 996, 1000 (7th Cir.
1989).  
¶ 12.        
Here, the change-of-plea transcript plainly reflects the elements
of the court’s offer, defendant’s acceptance, and the State’s
acquiescence.  The trial court would not accept the plea agreement without
an admission to the second VOP, and repeatedly told defendant he could still
appeal the court’s denial of his motion to dismiss.  Defendant
agreed.  The State voiced no objection.  The parties proceeded with
the change-of-plea on those terms.  On the whole record, there could have
been no misunderstanding that defendant’s admission to the second VOP was
explicitly conditioned on the reservation of his right to appeal the court’s
adverse ruling on his dismissal motion.  For that reason, our review of
that appeal is not improper.[2]
 
II.
¶ 13.        
That brings us to the merits of defendant’s claim that the court
erred in finding a prima facie case to support the second VOP.  Defendant
characterizes his behavior as merely an expression of anger about the first VOP
complaint and argues that, according to Sanville,
Condition M did not sufficiently notify him that his comments were
prohibited.  
¶ 14.        
We review the court’s decision against dismissing the VOP
complaint under Vermont Rule of Criminal Procedure 12(d)(2), providing that a
prima facie case lies when there is “substantial, admissible evidence as to the
elements of the offense challenged . . . sufficient to prevent the
grant of a motion for judgment of acquittal at the trial.”  Accordingly,
the State survives a motion to dismiss for lack of a prima facie case by
showing that the evidence, taken in the light most favorable to the State, and
excluding modifying evidence, can fairly and reasonably show that defendant
committed the alleged violation.  We consider the legal question—whether
in light of Sanville and other applicable law
the State’s allegations were sufficient to support a prima facie case of a
violation of Condition M—de novo.  See In re Crannell,
2012 VT 85, ¶ 5, ___ Vt. ___, 60 A.3d 632 (reiterating that application of
governing legal standard is nondeferential question
for this court). 
¶ 15.        
In Sanville, we explained:
To
be charged with violating probation, a defendant must have notice before the
initiation of a probation revocation proceeding of what circumstances will
constitute a violation of probation.  Due process requires that such
notice inform him as to what acts may constitute a violation of his probation,
thereby subjecting him to loss of liberty.  While the notice may come in
the form of a probation order presented for the defendant’s signature, still,
the defendant is entitled to know what conduct is forbidden before the initiation
of a probation revocation proceeding.
 
2011 VT 34,
¶ 8 (quotations and citations omitted). 
¶ 16.        
In that case, we considered the same probation
condition—Condition M—as we consider here.  The defendant in that case had
had a series of sometimes heated arguments with his landlord.  Id. ¶ 3.  In one exchange, the defendant
said that he was going to “kick [landlord and her husband’s] butts.”  Id. 
During a particularly heated exchange, the defendant told the landlord he was
going to burn down the trailer.  Id.  We did not reach the
question of whether verbal statements alone can constitute “threatening
behavior” for the purposes of probation conditions.  Id.
¶ 7.  Instead, we concluded that, as written, Condition M “did
not afford [the] defendant a reasonable opportunity to know what actions were
prohibited, so that he might act accordingly.”  Id.
¶ 10 (quotation and alterations omitted).  As in Sanville, we need not visit the question of whether verbal
statements alone can violate Condition M because the notice provided by that
condition to the defendant in the Sanville
case is indistinguishable from that provided to defendant in this case.  
¶ 17.        
If anything, this case is easier than Sanville—not
because the suggestion that the probation officer was going to end up in a body
bag was not menacing or concerning, but because, even assuming for the purposes
of this analysis that verbal statements can violate Condition M, there is no
allegation that defendant knew that the target of his statements was within
earshot.  He was “mouthing off” to his ex-girlfriend; the State has not
alleged that his statements were in any way directed at anyone else.  We
have recognized that even an expression of a desire or plan to harm someone cannot
reasonably be treated as a threat under Condition M “[w]ithout
a finding that [the] statement represented an actual intent to put another in
fear of harm or to convey a message of actual intent to harm a third
party.”  State v. Miles, 2011 VT 6, ¶¶ 7-8, 189 Vt. 564, 15
A.3d 596 (reversing VOP based on Condition M where obviously delusional
individual subject to Condition M told nurse in mental health unit of state
correctional facility that he wanted to kill “someone named Bill from
Evergreen” and that “earth goddess” had visited him recently and told him it
was okay to do so).  
¶ 18.        
If the State had alleged that defendant directed his comments to
the probation officer, or even that he knew she was in earshot, this might be a
very different case.  But even accepting as true all of the allegations
included in the State’s VOP complaint and admitted by defendant, those facts
alone could not support a finding that defendant intended to put his probation
officer in fear of harm or to convey a message of actual intent to harm
her.  Id.   
Reversed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice
 
 

¶ 19.        
DOOLEY, J., concurring.   I
fully concur in the opinion for the court.  I add only my view that
Condition M should be modified to avoid the interpretation issues that have
plagued its enforcement.  Condition M has become part of the standard form
probation conditions imposed in every case.  It is, however, not required
by statute, see 29 V.S.A. § 205(c)(1), nor on the
list specifically authorized by statute, id. § 252(b).  Thus, its
use is entirely within the control of the judiciary.
¶ 20.        
As the cases discussed in the majority opinion demonstrate, the
application and interpretation of Condition M have been challenged primarily in
cases where the probation officer has alleged that the probationer engaged in
“threatening behavior,” but the “behavior” involved has been primarily or
exclusively speech.  On the one hand, the prosecution argues that speech
is behavior and, on the other, the defendant argues it is not.  The cases
have tried to find a middle ground between these positions, and the results are
not always predictable.
¶ 21.        
It is clear to me that the need is for better language that
anticipates the interpretation difficulties and defines more specifically the
coverage of the condition.  If we are to have judiciary-created standard
probation conditions, imposed in every case, we must take more seriously our
obligation to improve and correct them where our enforcement experience shows
that improvement or correction is needed.  Language clarification is a
better course of action than regular appeals raising variations of the same
question that do not lead to a comprehensive solution.
¶ 22.        
Wouldn’t it be nice if this were the last decision of this Court
on the meaning of Condition M because Condition M is amended to eliminate the
interpretation questions?
¶ 23.        
I am authorized to state that Judge Kupersmith
joins this concurrence.
 
                                                                       
____________________________________
                                                                       
Associate Justice
 
 
¶ 24.        
BURGESS, J., dissenting, in part.[3]  If the threatening nature of
declaring one’s probation officer would “end up in a body bag” was not apparent
to defendant, as supposed by the majority, his obliviousness was not evident
from his motion to dismiss.  Nor was any lack of intent to convey this
message to his probation officer apparent from the circumstances alleged. 
In response to the dismissal motion, the State offered proof that probation
Condition M expressly warned defendant that threatening behavior was prohibited
and that defendant nevertheless delivered a loud and angry tirade against the
officer culminating in the not-too-subtle prediction of her demise. 
Viewed in the light most favorable to the State, and regardless of whether the
officer was immediately present to receive the threat firsthand, this evidence
was sufficient to support the charge that defendant engaged in threatening
behavior in violation of probation (VOP), and the trial court so ruled. 
Because defendant reserved only the right to challenge the State’s prima facie
case on appeal, and the trial court’s ruling on this point was not in error, I
respectfully dissent from reversing his conditional admission to the VOP. 
¶ 25.        
Invoking State v. Sanville, 2011
VT 34, 189 Vt. 626, 22 A.3d 450, defendant sought dismissal only on the grounds
that Condition M was overly vague and because his comment was merely “mouthing
off,” rather than intended to convey a threat.  The
majority, like defendant, takes Sanville out
of the context of its facts to condemn Condition M as inherently vague for
failing to “afford defendant a reasonable opportunity to know what actions were
prohibited, so that he might act accordingly.”  Id. ¶ 10
(quotation and alterations omitted); ante, ¶ 16.  What Sanville actually referred to was a failure of
Condition M to “fairly inform” a probationer that merely “mouthing off” with
“bluster[ing],” “mouthy,” and “obnoxious” statements
would violate probation, 2011 VT 34, ¶¶ 9-11, in contrast to actual
threats that “communicate intent to inflict physical or other harm.”  Id. ¶ 12 (quotation omitted).  It is beyond
cavil that behavior neither communicating, nor intended to communicate, such a
threat is not “threatening behavior” prohibited by Condition M, and given the
putative victim’s own perception in Sanville
that the probationer was only “mouthing off,” this Court found there was no
threat.  Id. ¶¶ 9-10. 
¶ 26.        
In the trial court below, on a motion
to dismiss, there was no such evidence from the probation officer or defendant,
and there was no such finding.  Rather, the court determined the proffered
evidence sufficient to prove threatening behavior.  The court observed,
not surprisingly, that if threatening behavior is a “communicated intent to
inflict physical or other harm” as defined in State v. Ashley, 161 Vt.
65, 72, 632 A.2d 1368, 1372 (1993), superseded by statute, 13 V.S.A.
§ 7554, then ranting against and “threatening to put your probation
officer into a body bag would seem to meet this standard.”  Such a
particularized description of one’s own intent is preponderant evidence of an
express threat, see State v. Blaise,
2012 VT 2, ¶ 12, 191 Vt. 564, 38 A.3d 1167 (confirming standard of proof
in VOP proceedings is preponderance of evidence), and
an intentional death threat objectively falls within Condition M’s proscription
against threatening behavior.  The court’s conclusion is supported by the
evidence.
¶ 27.        
Similarly, defendant’s declaration that
the officer “was going to end up in a body bag” was also prima facie evidence
of a communicated intent to harm the officer.  For a “true threat,” the
State must prove a deliberate and serious expression of intent to commit
unlawful violence against a particular person, but need not prove actual intent
to carry out the threat.  Virginia v. Black, 538
U.S. 343, 359-60 (2003).  The trial court’s decision reflects that
the State’s evidence was sufficient on this point as well, describing defendant
as enraged at his probation officer in the moments leading up to his explicit
prediction that the officer would end up in a body bag, and finding that dire
allusion practically indistinguishable from a death threat.  Again taking
the evidence in a light most favorable to the State and excluding defendant’s
characterization of his conduct as “blustering,” as we must in reviewing the
denial of the motion to dismiss, see V.R.Cr.P.
12(d)(2); State v. Stamper, 2011 VT 18,
¶ 3, 189 Vt. 583, 15 A.3d 142; Blaise,
2012 VT 2, ¶ 12, nothing in the court’s ruling
is clearly erroneous. 
¶ 28.        
Defendant’s claim of a non threatening
intent and other modifying evidence was not properly before the trial court at
the motion to dismiss, and is not properly before the majority today.  If
defendant wanted the court to weigh his claimed subjective intent to just rail
against the injustice of the situation, rather than communicate a threat to the
probation officer, he was free to explain his nobler objective at a merits
hearing.  Defendant chose not to do so.  Considering only defendant’s
expressed malevolence, without his countervailing nuance of “blustering,” the
trial court’s understanding of the declaration as a
threat was facially supported by animus evident in defendant’s demeanor and
choice of words.[4] 
See Miles, 2011 VT 6, ¶ 8 (citing Doe
v. Pulaski Cnty. Special Sch. Dist., 306 F.3d
616, 622–24 (8th Cir.2002) (en banc), for the
proposition that “in determining whether statements are true threats of
physical violence unprotected by First Amendment, courts must examine speech in
light of entire factual context and consider several factors, including whether
objectively reasonable person would view message as serious expression of
intent to harm”).   
¶ 29.        
That defendant intended the officer to get the message was at
least one logical inference to draw from the declaration and circumstances
alleged.  Defendant was not complaining in general, but focusing his
remarks on the officer.  His threat was loudly proclaimed just outside the
courthouse, immediately following an adversarial court proceeding involving his
probationer officer and where the officer could hear the threat directly, as
she did walking around the corner, or was at least likely to hear it indirectly
through others.  Given the forum, volume, and context, that defendant
would not expect the officer to hear of his threat was patently unlikely. 
Thus, the majority’s view that prima facie evidence is missing on this element
is wrong.[5] 

¶ 30.        
Justice Dooley’s concurring reiteration that Condition M is
fatally vague is similarly unfounded, particularly on the record
presented.  The meaning of Condition M is not so opaque as to compel
ordinary readers to consult their law libraries to divine its mysteries. 
Common and even marginal sense would put probationers on fair notice that
threatening their probation officers with death qualified as “threatening behavior”
prohibited by Condition M.  Absent credible evidence to the contrary, what
part of that behavior is not threatening?  What is it about an antagonist, known to be assaultive, declaring loudly in a
public place that the officer would end up dead that is not threatening? 
Where is the danger of confusion with innocent conduct?  Condition M
cannot be confused with bluster, because bluster reflects no actual intent to
put another in fear of harm as required for a threat.  Under the
circumstances before the trial court, and this Court, Condition M is in no need
of clarification.
¶ 31.        
I am authorized to state that Chief Justice Reiber
joins this dissent.   
 

¶ 32.        
   


 


Associate
  Justice

 





[1] 
As noted above, defendant primarily argued in connection with the motion to
dismiss that, under Sanville, Condition M was
too vague to encompass the kind of mouthy, obnoxious expression of opinions
about a perceived injustice.  The “second” theory is not entirely clear
from the record.  The court may have been referring to the argument that
words alone cannot constitute “threatening behavior”—an argument referenced in
the court’s decision, but not argued by defendant on appeal.


[2]
 Defendant argues that his guilty plea should be vacated because it was
not made knowingly and voluntarily.  In particular, defendant argues that
he admitted to the VOP in reliance on the court’s advice that he could still
appeal the legal basis for the VOP; to the extent that he could not actually
appeal because his plea effectively waived his right to appeal, his guilty plea
was involuntary.  Because we conclude that defendant’s plea was
conditional and did expressly reserve his right to appeal the legal basis for
the VOP, we need not address defendant’s argument.


[3]
 I fully concur with the majority’s view that defendant preserved his
challenge for appeal by the terms of his conditional plea.  Ante,
¶¶ 9-12.


[4] 
Reversing the trial court for failing to find a real threat as was required for
a VOP in State v. Miles, 2011 VT 6, ¶ 8, 189 Vt. 564, 15 A.3d 596,
is also mistaken.  Since probationer did not challenge the VOP on that
basis, no such determination was needed to deny the motion to dismiss and there
was no suggestion, as was obvious from the record in Miles, that
probationer was delusional if not insane.   
 


      
[5] 
Moreover, Condition M prohibits violent and threatening behavior “at any time”
and unlawful threats do not require the personal presence of the target. 
See
United States v. Martin, 163 F.3d 1212, 1216 (10th Cir. 1998) (stating in the context
of 18 U.S.C. § 115, prohibiting threats against federal officials, that
“[t]his court has not required that true threats be made directly to the
proposed victim”); United States v. Raymer,
876 F.2d 383, 391 (5th Cir. 1989) (declaring that actual receipt of threat is
not required to prove defendant threatened probation officer in violation of 18
U.S.C. § 115); United States v. Hinkson,
349 F. Supp.2d 1350, 1354, 1357 (D. Idaho 2004) (direct communication of threat
to target unnecessary under 18 U.S.C. § 115); see also Commonwealth v. Hokanson, 907 N.E.2d 674, 678 (Mass. App. Ct. 2009) (clarifying, in
context of threatening to commit crime against another, that while
“communication is a critical element of the threat,” it can
be uttered indirectly to “one who the defendant intends to pass it on to the
target, or to one who the defendant should know will
probably pass it on to the target” (quotation omitted)).



