2012 VT 106


State v.
Nolen (2012-062)
 
2012 VT 106
 
[Filed 28-Dec 2012]
 
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.
 
 

2012 VT 106

 

No. 2012-062

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington
  Unit,


 


Criminal Division


 


 


Wallace Nolen


September Term, 2012


 


 


 


 


Howard
  E. Van Benthuysen, J.


 

Kristin G. Wood, Washington County Deputy State’s Attorney,
Barre, for Plaintiff-Appellee.
 
Michael Rose, St. Albans, for Defendant-Appellant.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and
Burgess, JJ., and Eaton, Supr. J., 
                    
Specially Assigned
 
 
¶ 1.            
BURGESS, J.  Defendant appeals from the criminal division’s
order for an unsatisfactory discharge of defendant from probation. 
Defendant claims that the trial court abused its discretion by characterizing
his discharge as “unsatisfactory” without a hearing or an affidavit
demonstrating a probation violation, and seeks a mandate to the trial court for
an unqualified discharge.  Although not a
cross-appellant, the State also contends that the trial court erred by
discharging defendant from probation without an evidentiary hearing.  We
reverse and remand. 
¶ 2.            
The facts can be summarized as follows.  Found guilty in March 2010
of three counts of negligent operation of a motor vehicle, defendant received a
nine-to-ten-day sentence of imprisonment, all suspended with probation. 
Stayed pending appeal, the sentence became effective in June 2011 after his
conviction was affirmed.  Some five months later, in December 2011, the
Department of Corrections petitioned the court for an unsatisfactory discharge
from probation.  The petition was accompanied by a statement from
defendant’s probation officer, outlining the reasons for the officer’s
discharge recommendation.  The probation officer averred that defendant
failed to comply with certain special conditions of his probation, including
that he complete a treatment program and mental-health counseling to the
officer’s satisfaction, as well as the condition that defendant avoid contact
with his victim.  The probation officer also stated that defendant was
uncooperative with efforts to schedule appointments, although she did note
defendant’s contention that he was unable to attend any probation appointments
due to medical issues, including treatment for colon cancer, obesity,
obstructive apnea, Crohns disease and diabetes.  
¶ 3.            
Defendant’s probation officer asserted that she tried to accommodate
defendant’s medical needs, but that her attempts were met with continued
resistance and new reasons offered by defendant as to why he was unable to
follow his probation conditions.  On this history,
 the officer represented that it was “unlikely we will be able to
make a positive change in [defendant’s] attitudes or behavior.” 
Accordingly, the probation officer proffered  that:
[b]ased
on [defendant’s] current and lengthy medical and mental health concerns, it is
improbable that he can be adequately supervised by the department.  A
decision was made at the Central Office level to respectfully request that
[defendant] be unsatisfactorily discharged from probation at this time.  
 
¶
4.            
The State responded with an objection to the petition.  The State
contended that a discharge from probation, even if deemed unsatisfactory, would
reward defendant for misbehavior.  It was the State’s position that if
defendant refused to comply with probation requirements, he should be found in
violation, his probation should be revoked, and his sentence served.  
¶
5.            
Defendant requested a hearing on the matter.  While the State made
no specific request, it is not disputed that it too expected a hearing.
 The court scheduled a status conference to discuss the filings and
ordered that defendant be personally present at the conference.  Defendant
filed a motion to waive appearance based on his health problems, which was
accompanied by a letter from defendant’s oncologist explaining how aggressive
chemotherapy rendered defendant physically exhausted and weakened his immune
system.  The trial court canceled the status conference, denied
defendant’s motion to waive appearance, and entered an order of unsatisfactory
discharge from probation.  The court “determined that an unsatisfactory
discharge [was] within its discretion, and that in the interests of justice and
judicial economy, no further hearings [were] necessary on these nearly
three-year old misdemeanors.”  Defendant appeals. 

¶
6.            
It is unusual for normally adverse parties to take a common position in
opposition to a trial court order.  Nevertheless, though for different
reasons, both defendant and the State dispute the trial court’s authority to
summarily terminate probation without a hearing.  Defendant equates an
unsatisfactory discharge with findings of a probation violation, or as
otherwise reflecting adversely on his conduct as a probationer.  Defendant
claims he was denied an opportunity to contest the grounds for such an
appellation.  The State, on the other hand, focuses not on the court’s
characterization of the probationer, but argues simply that when, as here, a
motion’s predicate facts are in dispute, Vermont Rule of Criminal Procedure
47(b)(2) calls for a hearing.  The State has not
appealed, however, and its argument is unnecessary to resolve defendant’s
claim.  We agree that a probationer is entitled to a hearing on disputed
material facts before the trial court can order a less-than-satisfactory
discharge from probation.[1] 

¶
7.            
Trial courts enjoy “broad statutory authority to suspend all or part of
a criminal sentence and place the defendant on probation with such terms and
conditions ‘as the court in its discretion deems reasonably necessary to ensure
that the offender will lead a law-abiding life or to assist him to do
so.’ ”  State v. Nelson, 170
Vt. 125, 128, 742 A.2d 1248, 1250 (1999) (citing 28 V.S.A.
§ 252(a)).  Under 28 V.S.A. § 251, “[t]he court placing a person
on probation may terminate the period of probation and discharge the person at
any time if such termination is warranted by the conduct of the offender and
the ends of justice.”  Decisions regarding probation status are entrusted
to the sound discretion of the trial court.  See State
v. Daudelin, 151 Vt. 214, 217, 559 A.2d 668, 670 (1989).  When a statute “grants discretionary powers to the trial court, we
will not set aside [the trial court’s] ruling absent abuse of discretion.” 
State v. Merchant, 173 Vt. 249, 254, 790 A.2d 386, 391
(2001).  To succeed on a claim of abuse of discretion, defendant
must show “that the court failed to exercise its sound discretion or exercised
it for clearly untenable reasons.”  Daudelin, 151 Vt. at 217, 559 A.2d at 670.
¶
8.            
Absent a stipulation between the parties, the trial court abused its
discretion in this case by issuing an adverse order of unsatisfactory discharge
with neither findings on the underlying basis for its determination nor an
opportunity for defendant to be heard on the facts in dispute.  It is
settled that actions by the trial court affecting defendant’s probationary
status and freedom, such as a revocation of probation, require a hearing on the
merits.  State v. Benjamin, 2007 VT 52, ¶¶ 9-11, 182 Vt. 54,
929 A.2d 1276 (recognizing the United States Supreme Court’s reasoning in Gagnon
v. Scarpelli, 411 U.S. 778 (1973), which held that probationers are
entitled to both a preliminary and final hearing prior to revocation, applies
with equal weight under the Vermont statutes).  Attaching the label of
“unsatisfactory” to defendant’s discharge from probation constitutes a legally
adverse action by the trial court which requires the State to prove
unsatisfactory performance and entitles defendant to respond to the State’s
allegations.  
¶
9.            
The court-assigned label of “unsatisfactory” discharge from probation
carries sufficient present and future legal significance to warrant the hearing
requested by defendant.  It represents a judicially determined negative
outcome for the probationer.  Characterization as an unsatisfactory
probationer can adversely affect a defendant’s opportunities for probation in
the future.  See, e.g., United States v. Zubiate-Ibarra, No.
09-50099, 2009 WL 3199639, at *1 (5th Cir. Oct. 6, 2009) (rejecting defendant’s
argument that sentence was higher than necessary to meet federal sentencing
goals based on the offense, “two prior drug-trafficking convictions and an
unsatisfactory discharge from probation on one of the prior offenses”); Williams
v. State, 735 N.E.2d 785, 790 (Ind. 2000) (upholding unsatisfactory
discharge from probation as an aggravating circumstance in sentencing); State
v. Carrasco, 1997-NMCA-123, ¶ 8, 950 P.2d 293 (acknowledging that an
unsatisfactory discharge could restrict defendant’s legal rights under state
law and agreeing that “the issuance of an order
determining that [defendant] be discharged from probation with an
unsatisfactory discharge for failure to comply with the terms of her probation
implicates her due process rights”).  The label flags to the next
court that probation has been ineffective in rehabilitating a defendant and
signals that the goals of probation were not achieved with this particular
defendant.  See State v. Nelson, 170 Vt. at 128, 742
A.2d at 1250 (recognizing that probation is “an essential tool in the court’s
ability to shape a criminal sentence to the rehabilitative needs of the
individual defendant”).  
¶
10.        
Absent a hearing, a defendant has no opportunity to contest whether or
not probationary conditions have been effective—or, as in the present case,
even feasible—for rehabilitation.  Thus, a record of unsatisfactory
discharge could convey unchallenged negative implications to a court
considering whether to suspend a subsequent sentence, in whole or in part, with
an order of probation.  The record of unsatisfactory discharge, suggesting
noncompliance with a court order, could also be relevant in determining future
conditions of pre-trial release or bail.  See State v. Weller, 152
Vt. 8, 10, 563 A.2d 1318, 1319 (1989) (confirming that it was “reasonable for
the court to conclude that defendant’s failure to report to his probation
officer increased the risk that he would not appear in court”); Cf. State v.
Lampman, No. 2008-002, slip op. at 1 (Vt. Jan. 2008) (unpub. mem.) (bail appeal) (affirming conditions of release and bail
amount based on previous convictions as well as “four failures to appear, two
parole violations, a violation of a supervised community sentence, and ‘a
couple’ of violations of probation”); State v. Scott, No. 2007-489, slip
op. at 1 (Vt. Jan. 2008) (unpub. mem.) (bail appeal)
(upholding conditions of release and bail amount based on defendant’s criminal
history and because defendant’s “repeated parole violations and criminal
activity while on parole confirm that defendant cannot be relied upon to abide
by conditions of release, let alone respond to court process”); State v.
Quist, No. 2008-336, slip op. at 2 (Vt. Sep. 2008) (unpub. mem.) (bail appeal) (affirming conditions
of release and bail amount because of defendant’s risk of flight, reasoning
“[d]efendant’s unreliability, coupled with his actual failure to appear in
disregard of the court’s order in the past, aggravates that risk”).
¶
11.        
  We cannot agree, however, with defendant’s argument that
this Court should order a satisfactory discharge from probation.  As
discussed above, matters regarding probation status are, in the first instance,
properly within the province and discretion of the trial court.  Whether
defendant is entitled to a satisfactory discharge, and on what grounds, may be
considered by the trial court on remand.[2] 

Reversed and
remanded.  
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
We leave for the trial court to determine, on remand, whether it is authorized
at all, under 28 V.S.A. § 251 or otherwise, to discharge a probationer for
“unsatisfactory” performance and label the discharge as such.  Defendant
contested the factual basis for the probation officer’s discharge request below
but raised no claim that modifying a discharge as either satisfactory or
unsatisfactory was beyond the court’s authority.  Defendant now asserts on
appeal, for the first time, that the statute provides for court-ordered
discharge from probation, but not an “unsatisfactory” discharge.  This
Court will not delve into that question now.  See Progressive
Ins. Co. v. Brown, 2008 VT 103, ¶ 6, 184 Vt. 388, 966 A.2d 666 (“[I]n
order to rely upon an argument on appeal, an appellant must properly preserve
it by presenting it to the trial court with specificity and clarity.” (quotation
omitted)); see also Vermont Built, Inc. v. Krolick, 2008 VT 131,
¶ 10, 185 Vt. 139, 969 A.2d 80 (“The preservation rule is satisfied when
the trial court had a fair opportunity to consider, evaluate and rule upon the
question raised on appeal.” (quotation
omitted)).    


[2] 
We note defendant’s argument that the trial court also abused its discretion by
not issuing an order of satisfactory discharge based on “the uncontested,
verified facts” submitted by defendant to the effect that he complied with his
probation conditions.  We do not reach this argument because reversal on
the court’s refusal to hold a hearing on defendant’s discharge from probation
is dispositive of error in this case.  We note, however, that defendant
argues both that he complied with his probation conditions and that, to the
extent that he did not comply, he was unable to do so.  The inherent
contradiction in these alternative arguments is the precise reason why a
hearing is necessary—to determine whether defendant complied with probation,
could not comply with probation due to factors outside his control, or violated
probation.  



