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@vermont.gov 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.


                                            2017 VT 66

                                           No. 2016-195

State of Vermont                                                 Supreme Court

                                                                 On Appeal from
   v.                                                            Superior Court, Bennington Unit,
                                                                 Criminal Division

Bryan Love                                                       September Term, 2016


David A. Howard, J.

Jonathan Ward, Bennington County Deputy State’s Attorney, Bennington, for Plaintiff-Appellee.

Peter F. Langrock and Devin McLaughlin of Langrock Sperry & Wool, LLP, Middlebury, for
 Defendant-Appellant.


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


        ¶ 1.   DOOLEY, J.       In this appeal, we consider defendant’s request, over the State’s

objection, to have his probation obligations terminated and his criminal convictions expunged

halfway through his stipulated deferred-sentence term. The trial court concluded that it had no

authority to grant such relief. We agree, and therefore affirm the trial court’s decision.

        ¶ 2.   The record indicates the following. In December 2012, defendant was charged with

two felony counts of lewd and lascivious conduct with a child, and he faced the possibility of

significant jail time. By virtue of a plea agreement with the State, defendant instead pled guilty to

two misdemeanor counts of prohibited acts, with a “4 year deferred sentence.” The deferred

sentence required the State’s consent, and it gave defendant the opportunity to avoid criminal

convictions on these counts altogether. See 13 V.S.A. § 7041(a) (stating that “court may defer
sentencing and place the respondent on probation upon such terms and conditions as it may require

if a written agreement concerning the deferring of sentence is entered into between the state’s

attorney and the respondent and filed with the clerk of the court”). If defendant fulfilled “the terms

of probation and of the deferred sentence agreement,” the court would “strike the adjudication of

guilt and discharge” him. Id. § 7041(e). If he violated “the terms of probation or of the deferred

sentence agreement,” he would be sentenced. Id. As part of his plea agreement, defendant also

agreed that he would “not appeal his substantiation by DCF of the conduct at issue in this case.”

When the trial court accepted defendant’s plea agreement, that agreement became binding on the

court and the parties. See V.R.Cr.P. 11(e)(2), (3).

       ¶ 3.    To effectuate the plea agreement, the parties executed a deferred-sentence

agreement using a standardized form. As indicated above, the deferred-sentence agreement was

entered into by the state’s attorney and defendant pursuant to 13 V.S.A. § 7041(a). It was not

established by the alternative route provided in 13 V.S.A. § 7041(b), which authorizes a court to

defer sentencing and place the respondent on probation without a written agreement between the

state’s attorney and the respondent under certain conditions, none of which are present in this case.

This deferred-sentence agreement required the authorization or approval of the state’s attorney.

       ¶ 4.    Like the plea agreement, this agreement identified the term of the deferred sentence

as “4 years and 0 months,” and provided more specifically that “the duration of this deferred

sentence agreement is from 3/30/2014 to 3/29/2018.”            Defendant agreed to abide by the

agreement’s terms, and further agreed that “[d]uring the period that this deferred sentence is in

effect,” he would abide by specified probation conditions, including sex offender conditions. The

court signed the agreement, affirming preprinted language that: “[b]ased on the foregoing, a

Deferred Sentence is ORDERED pursuant to 13 V.S.A. § 7041. The defendant is placed on

probation in the care and custody of the Commissioner of Corrections until further order of the

Court.” Defendant acknowledged that if he violated the conditions of the deferred sentence, the


                                                  2
court would impose sentence. If he fulfilled the terms of probation and the deferred-sentence

agreement, the court would “strike the adjudication of guilty and discharge the defendant. Upon

discharge, the record of the criminal proceedings shall be expunged.”

       ¶ 5.    Defendant also signed a deferred-sentence probation order. This order provided an

expiration date for defendant’s “Deferred Sentence Term,” although it referenced a plainly

incorrect date of February 29, 1900. The order reiterated that defendant was “placed on probation

in the care and custody of the Commissioner of Corrections for the term(s) as shown above.”1

       ¶ 6.    Two years after executing these agreements, defendant sought to reduce the length

of his deferred-sentence term, although he labeled his request a motion to “shorten probation.”

Apart from the legal issue, defendant summarized why the court should exercise its discretion to

reduce the deferment period and terminate probation. He argued that the extensive probation

conditions greatly restricted his ability to find a job because they prohibited contact with children,

out-of-state travel, and computer use. Defendant also argued that in one instance the presence of

the convictions excluded him from consideration for a job. Defendant maintained that requiring

him to complete the four-year term to which he had agreed was “a matter of form and serve[d] no

useful purpose.”2



       1
           The form also stated incorrectly that if defendant failed to follow the probation
conditions, the court “might” require him “to serve his full sentence in jail.” Defendant, of course,
had not yet been sentenced, but if he did violate the terms of probation, the court was required to
impose sentence. See 13 V.S.A. § 7041(e) (“Upon violation of the terms of probation or of the
deferred sentence agreement, the court shall impose sentence.” (emphasis added)); see also State
v. Rafuse, 168 Vt. 631, 632-33, 726 A.2d 18, 19-20 (1998) (mem.) (holding that language in
§ 7041 is mandatory, and that probation law, 28 V.S.A. § 304, which affords court discretion in
deciding whether to revoke probation, does not apply).
       2
          In the trial court, defendant sought only a discharge from probation without specifying
what the discharge would do to the deferred sentence. He did not argue that the period of deferment
should be shortened and the conviction expunged at the end of the shortened deferment period,
and, as a result, the trial court never considered this additional remedy. It became clear in the
argument to this Court that defendant expected that the shortening of the deferment period and the
expungement of the conviction would automatically flow from the shortening of the probation
term. Thus, we have considered both remedies.
                                                 3
       ¶ 7.     The State opposed defendant’s request, arguing that defendant had agreed to defer

sentencing for four years, and because that period had not passed, he had not fulfilled the terms of

his agreement and could not be discharged pursuant to 13 V.S.A. § 7041. While the State did not

object to defendant’s attempt to repudiate his agreement, it asserted that the only recourse would

be for the court to impose sentence and place permanent criminal convictions on defendant’s

record. The trial court denied defendant’s motion, concluding that it lacked authority to grant the

requested relief.3 Defendant appeals from this decision.

       ¶ 8.    Defendant asserts that the court erred in concluding that it could not discharge him

from probation prior to the expiration of the four-year deferred-sentence term. According to

defendant, there is nothing in the deferred-sentencing law that prohibits early discharge from

probation, and thus, 28 V.S.A. § 251—the statute that authorizes early discharge from probation

when the court finds that it is “warranted by the conduct of the offender and the ends of justice”—

controls. Defendant asserts that ordinary probationers can be discharged early despite having

agreed to a fixed term of probation, and the same is true in the deferred-sentencing context. He

argues that such early discharge was acknowledged as appropriate in State v. Murray, 159 Vt. 198,

617 A.2d 135 (1992), and that he retained the right to such relief unless he explicitly waived it.

Defendant also asserts that because he was placed on probation “until further order of the court,”

the court may discharge him at any time. Finally, as we note in footnote two, defendant argues

that the shortening of the period of probation should automatically shorten the period of deferment

and the accompanying period for expungement because the deferment serves no purpose once the

period of probation is shortened and ended.

       ¶ 9.    Before we reach the analysis in this case, it is helpful to lay out a roadmap for this

decision. We address only circumstances under a deferred-sentence agreement where the State



       3
         The trial court never considered whether it would grant the relief requested if it had the
power to do so.
                                               4
does not consent to either a reduction of the term of sentence deferment or a reduction of the period

of probation, the circumstances present in this case. We do not address the trial court’s authority

when the State and the defendant agree on a reduction of the period of probation or deferment or

both.4

         ¶ 10.   Defendant argues that he should prevail without the consent of the State, first, under

the statutory language, and second, under the specific language of the deferred-sentence order in

this case. Although we use the word “prevail,” defendant has argued for two levels of success:

(1) complete success under which the trial court can shorten both his period of probation and the

period of deferment, or (2) a partial success under which the trial court can shorten the period of

probation if it decides a reduced period is appropriate, but cannot reduce the period of deferment

to advance the date of expungement of the conviction. We examine first whether defendant can

prevail at either of these levels under the statutes, without consideration of the language of the

deferred-sentence order. Thereafter, we consider the effect of the language of the deferred-

sentence order.

         ¶ 11.   We recognize that there may be variations in these outcomes. For example, we

could rule, as defendant argues, that a reduction in the period of probation automatically reduces

the period of deferment or, alternatively, rule that whether to shorten the period of deferment lies

within the trial court’s discretion. Because of the result of our analysis, we do not reach the

possible variations.

         ¶ 12.   We start with the result under the applicable statutes and examine whether the trial

court could have reduced the term of deferment and order expungement based on its decision to

reduce the period of probation. We conclude it could not.




         4
           Because of our resolution, we do not address whether defendant could waive in the
original agreement any right to seek a reduction in the period of probation or deferment.
                                                 5
       ¶ 13.   The deferred-sentencing law requires defendant to comply with both the term of

deferment and the probation conditions. See 13 V.S.A. § 7041(e) (stating that defendant may be

sentenced if he violates either terms of probation or terms of deferred-sentence agreement, and

adjudication of guilt will be struck if defendant complies with both terms of probation and terms

of deferred-sentence agreement). A main term of a deferred sentence is the length of deferment,

and the order and agreement in this case explicitly sets out this term. The statutes do not provide

the trial court with discretion to reduce the term of deferment.

       ¶ 14.   There are significant aspects of the sentence-deferment law that support the absence

of an authorization for the court to reduce the term of deferment. Foremost is that the deferred

sentence can be ordered for the crimes involved here only when the State consents to the deferment

and its terms in a deferred-sentence agreement. The deferred-sentence agreement is a contract in

which the defendant has agreed to the burden of a term of deferment in return for the large benefit

of avoiding a sentence and obtaining expungement of the criminal conviction. In Murray, we

emphasized the contractual nature of a deferred sentence. 159 Vt. at 205, 617 A.2d at 139. The

issue there was whether the statute gave the court the power to lengthen the period of probation to

the five-year limit on the period of deferment authorized at that time by § 7041(a). We held that,

given the contractual nature of the deferred sentence, the court did not have such power:

               Thus, a defendant may bargain with the State for certain terms and
               conditions prior to entering into the agreement. To read the statute
               as in all cases granting the court revocation or modification power
               for five years from sentence deferral would deny the defendant and
               the State the opportunity to negotiate over the term that may well be
               most important to them, the duration of the probation obligation.

Murray, 159 Vt. at 203, 617 A.2d at 138. Adding a discretionary reduction of the term of

deferment over the State’s objection would be wholly inconsistent with the statutory scheme.

       ¶ 15.   Second, the Legislature has provided a specific method for challenging a deferred-

sentence term, and it is not available in this case. Under 13 V.S.A. § 7041(d), the court may

reconsider a deferred sentence even though no sentence has actually been imposed. That remedy,
                                                 6
however, has strict time limits. See id. §§ 7041(d), 7042 (motion to reconsider sentence must be

filed within ninety days); but see State v. Hance, 157 Vt. 222, 227, 596 A.2d 365, 368 (1991)

(recognizing “limited usefulness of sentence reconsideration when the sentence is based on a plea

agreement”).5 Defendant did not seek modification of his deferred-sentence term within ninety

days, and he cannot do so now.

       ¶ 16.   Finally, we address defendant’s policy argument that the term of the probation

obligation and the term of the sentence deferment are necessarily the same, and it makes no sense

to delay the expungement of the sentence beyond the period of probation. Even if we agreed with

this policy argument, we could not implement it because the statute requires compliance with both

the terms of the deferred-sentence agreement and the terms of probation, a specification that would

be unnecessary if they imposed the same requirements. See State v. Brennan, 172 Vt. 277, 280,

775 A.2d 919, 921-22 (2001) (explaining that in construing statute, Court must “presume that all

language in a statute was drafted advisedly, and that the plain ordinary meaning of the language

used was intended,” and “[w]e must not allow a significant part of a statute to be rendered

surplusage or irrelevant” (citation omitted)).

       ¶ 17.   In fact, the two elements involve different, albeit related, terms and consequences.

The term of deferment controls when the expungement of the conviction will occur. The term of

probation determines when the probation conditions will end. In his motion to the trial court,

defendant described the different consequences flowing from the existence of the conviction and

from the restrictions on his activities created by the probation conditions. It may appear normal in




       5
            Although 13 V.S.A. § 7041(d) provides that “entry of deferment of sentence shall
constitute imposition of sentence solely for the purpose of sentence review in accordance with
section 7042 of this title,” the statute does not reconcile the availability of sentence reconsideration
with the fact that no sentence is imposed at time of deferment and with the requirement of approval
by the prosecution of a sentence deferment. We need not do so here. The point is that the statute
provides a method for judicial approval for modification of a deferred sentence, however limited,
and it is not applicable here
                                                     7
this case that the terms of probation and deferment would be the same, but that would not be true

if there were separate terms in the deferment agreement that were not probation conditions.6

       ¶ 18.   Overall, we find People v. C.G., 12 P.3d 861 (Colo. App. 2000), the decision closest

to this one from another jurisdiction, persuasive here. In that case, the court considered whether a

defendant, who pled guilty pursuant to a four-year deferred judgment and sentence agreement,

should be discharged from his agreement after only two years. The prosecution opposed early

dismissal, arguing that it was not provided for in the agreement, which instead reflected the parties’

expectation that the defendant would be deterred from committing any new offenses for a full four-

year period. The trial court granted the early dismissal over the prosecution’s objection, reasoning

that a deferred judgment and sentence agreement was like probation and that trial courts possess

“general supervisory powers” to terminate the agreement early. Id. at 862.

       ¶ 19.   The appeals court reversed. It reviewed the deferred judgment and sentencing laws,

which as in the instant case, required the State’s agreement. It recognized, as here, that “[i]t is the

defendant who is the primary beneficiary of deferred sentencing which ultimately may result in

the dismissal of the charges against him.” Id. at 863 (quotation and alteration omitted). Thus, the

question before the court was “whether a trial court, in the absence of the prosecution’s consent,

may confer this benefit sooner than provided by the agreement.” Id. The court concluded that the

law did not allow the trial court to act unilaterally, and that the court could not shorten the



       6
           That the terms could be different was made clear by two legislative amendments to
§ 7041. In 2002, the Legislature amended § 7041(b) to provide that a person under a deferred
sentence could “not be discharged from probation imposed under this section until restitution has
been paid in full, absent a finding of good cause by the court.” 2001, No. 134, § 2 (Adj. Sess.).
The following year, the Legislature amended the statute again by striking the language added in
2002 and instead stating that if restitution remained unpaid “the record shall not be expunged until
restitution has been paid in full, absent a finding of good cause by the court.” 2003, No. 57, § 5
(eff. July 1, 2004). The Legislature also added in § 7014(c) that nonpayment of restitution could
not be grounds for imposing sentence. Id. Essentially, through the 2003 amendment, payment of
restitution became a term of the deferred sentence but not a term of probation. The result is that
the statute specifically creates a gap between the end of probation and the expungement of the
conviction where restitution is not yet fully paid.
                                                   8
stipulated length of a deferred judgment and sentence agreement without the prosecution’s

consent. Id. It explained that the statute clearly specified that a defendant must adhere to the

stipulation and that dismissal of the charges will occur upon full compliance with the stipulated

conditions. Id. One stipulated condition was for a four-year period of law-abiding behavior by

the defendant, and that condition was not fully satisfied as of the date of the early dismissal request.

Thus, the trial court lacked authority to dismiss the case on that date without the prosecution’s

consent.

        ¶ 20.   Given our holding that the term of deferment cannot be shortened without the

State’s consent, we next consider whether the trial court can reduce the period of probation under

28 V.S.A. § 251 based on a finding that reduction “is warranted by the conduct of the offender and

the ends of justice.” Again, we conclude that it cannot.

        ¶ 21.   On this point, Murray identifies the applicable standard: whether the law that

defendant seeks to apply—28 V.S.A. § 251—conflicts with the deferred-sentencing statute. See

Murray, 159 Vt. at 203, 617 A.2d at 138 (“[T]he provisions governing probation in Title 28 apply

to deferred-sentence probation where there is no conflict with the specific provisions of § 7041.”).

We conclude that a conflict does exist. The deferred-sentence law does not authorize the relief

sought by defendant. With no statutory authority, defendant would have us eliminate the State’s

role in the sentence-deferment process by looking solely at the probation component of the

deferred sentence and ignoring the fundamental nature of a deferred sentence.               Defendant

expressly and repeatedly agreed to a four-year deferred-sentence term and the accompanying

probation conditions and duration. He obtained a significant benefit from his agreement, and it is

fundamentally unfair to allow him to escape the agreement’s burden. It would not advance the

“ends of justice” as required by § 251.

        ¶ 22.   Defendant twice agreed in writing to a four-year deferred-sentence term. More

specifically, he agreed to a deferred-sentence term running “from 3/30/2014 to 3/29/2018,” and he


                                                   9
agreed to abide by probation conditions “during the period that this deferred sentence is in effect.”

“A deferred sentence agreement ‘is a form of contract subject to the normal rules for construction

of contracts.’ ” State v. Leach, 2003 VT 66, ¶ 8, 175 Vt. 620, 833 A.2d 1260 (mem.) (quoting

Murray, 159 Vt. at 205, 617 A.2d at 139). The parties’ agreements reflect their clear expectation

that defendant must comply with probation conditions, including sex offender conditions, for four

years. If he complied with the conditions of probation for the required period, he was entitled to

the benefit of his agreement—the court would expunge the adjudications of guilt from the record,

and he would be discharged. Where, as here, “the language of the agreement is clear, the intention

and understanding of the parties must be taken to be that which their agreement declares.” Id.

(quotation omitted).

       ¶ 23.   There are compelling reasons to hold defendant to his bargain. If a court, at

defendant’s request, could unilaterally alter the parties’ agreement, “then the State could never be

sure it would receive the bargained-for benefits of its plea agreement.” Gou-Leonhardt v. State,

323 P.3d 700, 702 (Alaska Ct. App. 2014) (concluding that wellness court’s general authority to

“consider and reduce [a] defendant’s sentence” based on his compliance with treatment plan did

not allow court “to unilaterally alter a plea agreement that has already been accepted and

executed”). “The predictable result would be an increased reluctance on the part of the State to

make such plea agreements.” Id. Because the State’s consent is required for a deferred sentence

unless certain criteria are present, we are concerned that the result of early probation discharge

authority may be a “substantial reduction in the number of defendants” receiving deferred

sentences. Id. (reaching similar conclusion with respect to defendants’ participation in wellness

courts, which similarly requires State’s consent).

       ¶ 24.   Having concluded that defendant is not entitled to the relief he seeks under the

terms of the applicable statutes, we turn to the wording of the deferred-sentence order in this case.

Defendant argues that the wording of the order, as presented on a preprinted court form, compels


                                                 10
a different result. The form includes language that “[t]he defendant is placed on probation in the

care and custody of the Commissioner of Corrections until further order of the court,” which

defendant interprets as an authorization for the trial court to discharge defendant from probation

early under 28 V.S.A. § 251.7

       ¶ 25.   We reject the argument that by placing defendant on probation “until further order

of the court,” the deferred-sentence order expressly recognizes defendant’s right to seek a

reduction in the term of probation. Indeed, as we held above, such an order would be illegal.

       ¶ 26.   Moreover, there is no evidence that the boilerplate provision is intended to

implement an order that reduces the probationary term as opposed to any other order the court may

issue. Even if it contemplated a particular kind of order, the most likely one referenced is an order

revoking probation, an order specifically authorized by statute.

       ¶ 27.   This is not a question of ambiguity. We are dealing here with the language of an

order, not an agreement, so the law concerning contract ambiguity is irrelevant. The use of rote

language such as “until further order of the court” does not authorize the court to issue any type of

order. This language could not render a subsequent order lawful if it otherwise is not. This case

is about the validity of an order that defendant seeks to reduce his period of probation and the

period of sentence deferment. Nothing in the prior order of the court answers that question.

       ¶ 28.   On this point, we reject defendant’s assertion that this case is controlled by the dicta

in Murray or the reiteration of such dicta in a subsequent case. In Murray, the issue was whether

the court could lengthen the term of probation beyond that specified in a deferred-sentence

agreement. We held that it could not, consistent with the statute. We also addressed the State’s

argument that the deferred-sentence agreement authorized an extension of the term of probation


       7
          We interpret defendant’s argument with respect to the language of the sentence deferment
order as addressing only the length of his probation obligation. His position, as we stated above,
is that once the probation duration is reduced, the period of deferment is also reduced. We rejected
that position above, and nothing in defendant’s argument with respect to the sentence-deferment
order changes that decision.
                                                  11
because it contained the following language that specified defendant’s agreement “to a term of

probation imposed by the Vermont District Court, until further order of the Court.” Murray, 159

Vt. at 204, 617 A.2d at 139. The State argued that the agreement language controlled even over

the specific statutory language and that the use of the word “term” meant that it specifically

addressed only the duration of the probation order. We analyzed the issue consistent with that

argument.8 The State argued that the language specifically authorized an extension of that term.

We rejected that argument:

                 The State’s interpretation conflicts with other language in the
                agreement as well as with the court’s order. The agreement specifies
                that its duration is three years, and defendant’s agreement to abide
                by its terms is limited to that period. The court ordered a deferred
                sentence for a period of three years.

Id. at 205, 615 A.2d at 139. These conclusions apply equally in this case where it is the State

insisting on compliance with the agreement.

        ¶ 29.   We amplified the holding in Murray by comparing the case to State v. White, 150

Vt. 132, 549 A.2d 1069 (1988), a case in which we held that the authorization of 28 V.S.A. § 251

that the court could terminate probation at any time applied only to shortening the period of

probation. See Murray, 159 Vt. at 205, 615 A.2d at 139. Similarly, we held that the agreement

language in Murray could be applied only “to shorten, not lengthen, the probationary period.” Id.

        ¶ 30.   Defendant particularly emphasizes the reference to shortening the probationary

period as a general authorization to reduce the probationary period even when probation is ordered

in connection with a deferred sentence. Murray cannot be read to include such a holding since it

was discussing only the effect of the agreement language, not the trial court’s power under the

statutes.



        8
          We did not address in Murray whether the agreement language would actually control
over the statute, and whether the use of the word “term” in the agreement language meant that the
provision dealt only with the length of the probation obligation. We do not address these issues
here.
                                                12
       ¶ 31.     This is a critical distinction. Murray is about language in an agreement between

the parties and its effect. This case is about the language of a court order. The language in the

order in this case is different from the language in the agreement in Murray. The language in the

order before us does not use the word “term” and therefore cannot be construed as relating only to

the duration of the probation obligation. As a court order, the language clearly has a different

meaning and effect as described above. Additionally, the issue in Murray was entirely different

from the issue in this case, and any discussion of the power of the court to reduce a term of

probation was dicta.

       ¶ 32.     We conclude that the language of the sentence deferment order does not aid

defendant’s claim that the trial court had the power to reduce the length of defendant’s probation

obligation. We thus hold that early termination of probation conditions without the State’s consent

conflicts with the provisions of § 7041 and violates defendant’s contractual obligations.

       ¶ 33.     Given the above analysis, and because a deferred-sentence agreement requires

collaboration between the State and a defendant under § 7041(a), defendant’s concerns about the

continuing effects of the conviction and the probation conditions must be addressed through further

collaboration if the result is to eliminate or modify probation conditions in light of changing

circumstances.

       Affirmed.

                                               FOR THE COURT:



                                               Associate Justice




                                                13
