Sparks v. Hoffman, No. S0367-05 CnC (Norton, J., Aug. 4, 2005)

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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No. S0367-05 CnC



SPARKS

v.

HOFFMAN



                                 ENTRY

       Petitioner and the Department of Corrections seeks summary
judgment in their respective favors for a V.R.C.P. Rule 75 complaint.
Petitioner argues that his conditional reentry was wrongly revoked and that
he was saddled with an improper punishment. Corrections disagrees.

       Petitioner is an inmate currently serving a sentence of 16 months to
eight years for multiple convictions, including domestic assault, simple
assault, theft, passing a bad check, and reckless endangerment. In February
of this year, Corrections deemed Petitioner eligible for conditional reentry
furlough. This program is authorized by 28 V.S.A. § 808(a)(6) and is one
of a number of furlough programs of various length and restrictions that
inmates may be eligible for depending on their circumstances. As part of
this program, Corrections allowed Petitioner to leave his correctional
facility on February 25 to meet his “community correctional officer,”
whose role was to monitor Petitioner’s adherence to his conditional reentry
conditions, his general behavior, and his progress at re-integrating with the
community. This meeting, known as an intake interview, would also mark
the beginning of Petitioner’s furlough.

       This intake interview, which is a standard part of the conditional
reentry program, may best be characterized as the final stage in the
conditional reentry approval process. Among other things, it was an
opportunity for Corrections to review with Petitioner the 22 general
conditions of his initial conditional-reentry agreement, which included
condition C that required Petitioner “not [to] engage in threatening, violent
or assaultive behavior.” This was also the point where Petitioner would
have been given his more specific conditions and where he would have
been expected to sign his final agreement.

        In most cases, this intake meeting appears to be more ceremony and
formality than negotiation and formation. Inmates are expected to come,
meet their community correctional officers, review the conditions of their
reentry, agree to any final conditions that Corrections has added, and go on
their furloughed way. Unfortunately when Petitioner arrived at his
February 25 meeting, he saw an ex-girlfriend in the parking lot whom he
threatened, assaulted, and acted toward in a violent manner. Petitioner’s
community correctional officer, after consulting with a supervisor,
suspended Petitioner’s conditional reentry and sent Petitioner back to his
correctional facility. Five days later, Petitioner had a hearing at which he
admitted to violating the terms of his conditional reentry agreement. The
hearing officer subsequently revoked Petitioner’s conditional reentry.
        Under the relevant statute, Corrections may, at its discretion, put
inmates into the conditional reentry program. 28 V.S.A. § 723. This grant
is permissive and gives Corrections the authority to determine who shall be
eligible and to what conditions they will be subject. 28 V.S.A. § 808(a)(6).
Neither Petitioner nor Corrections dispute that Petitioner violated the terms
of his conditional reentry. Their initial dispute and the threshold question
in Petitioner’s unusual situation is whether he was formally on “conditional
reentry,” as defined in §§ 723 and 808(a)(6), when he acted against his ex-
girlfriend. By formulating the question this way, the court seeks to avoid
the pitfall that Corrections has fallen into by defining Petitioner as
simultaneously violating the terms of his conditional reentry while he was
not technically in the program.

       Petitioner argues that he was on conditional reentry from the
moment he left the correctional facility, even if it was not exactly the same
program that he would have been in if he had successfully completed the
intake interview. The facts of Petitioner’s limited release on February 25
contradict this position. On that day, Petitioner had a restricted “one-way”
pass to go from the correctional facility to the offices of his future
community corrections officer. Petitioner was not, by the terms of this
furlough, permitted to stop by a friend’s house, grab a bite to eat, or any
other innocuous activity that he would be able to enjoy after his intake
meeting as part of his broader conditional reentry.

       These limitations are particularly telling in determining Petitioner’s
status on February 25. He was in a no-man’s land between incarceration
and furlough. While Corrections and Petitioner can give this many
different names, both parties can agree that it was a limited status with
more rights than an incarcerated inmate (ability to leave the facility) but
less than a furloughed one. For the purposes of the present motion, the
court views this status as indistinguishable from incarceration.

      The simple problem with Petitioner’s argument is that he had not
passed through all of the prerequisites of conditional reentry. The intake
meeting may or may not be the most important step that an inmate takes
toward conditional reentry, but regardless of its ultimate function in the

process, it is still a necessary part. Whatever ceremonial function the intake
meeting might serve elsewhere, it was an effective last review in this case,
giving Corrections one final and important opportunity to evaluate
Petitioner’s fitness for the program. As Petitioner had not signed his final
agreement, complied with all of the pre-requirements of the program, he
was still an incarcerated inmate, albeit one with a foot out the prison gate.

        In this respect, the court agrees with Corrections that Petitioner’s
situation is best understood as analogous to a parolee who has been
approved for parole but had not signed his final parole agreement. Under
28 V.S.A. § 502c, parole may be withdrawn anytime before the final parole
agreement has been signed; after that, Corrections must follow certain
procedures to effectively suspend parole. Here Petitioner had not signed
his final conditional reentry agreement. His actions just prior to doing so
caused Corrections to withdraw his conditional reentry, and he was
returned to the correctional facility.

       Much of the confusion in this case stems from Correction’s post-
incident treatment of Petitioner and its explanation of revocation as being
due to a violation of Condition C. While Petitioner was not officially in the
program, Corrections chose to give him due process consistent with what it
understood to be the rights of an inmate on conditional reentry. Corrections
appears to have taken this course of action less out of any recognition of
Petitioner’s status and more for the strategic desire to protect any decision
from future Rule 75 challenges. As a withdrawal of conditional reentry,
Corrections did not owe Petitioner any specific process in its revocation.
The directives that Corrections has adopted, rightfully or wrongfully
outside the Vermont Administrative Procedures Act, for dealing with
inmates that violate the terms of their conditional release do not apply in
this situation. As with § 502c, Corrections actions amount to a pre-
agreement revocation of conditional reentry based on Petitioner’s failure to
abide by the terms of his future agreement while he was still incarcerated.

       Notwithstanding the fact that the same violation after the intake
meeting—perhaps in the parking lot directly afterwards—might have
represented a different question of due process and liberty interest,
Petitioner had no inherent right to conditional reentry prior to his final
agreement. See Conway v. Cumming, 161 Vt. 113, 118–19 (1993) (an
inmate has no constitutionally protected interest in furlough). Instead of
looking to the procedure that Corrections followed and its validity under
the VAPA, this review is limited to merely finding “some evidence” to
support Correction’s decision to withdraw its offer of conditional reentry.
LaFaso v. Patrissi, 161 Vt. 41, 49–51 (1993).

        The record shows that Corrections had an abundance of evidence to
establish Petitioner’s behavior, including Petitioner’s own admission of
guilt. While Petitioner’s admission of guilt demonstrates a certain amount
of self-awareness and perhaps burgeoning maturity, it does not lessen his
offense or his guilt. Corrections chose to punish this infraction, and it is not
the function of this court to question that discretionary action. In
challenging his due process, Petitioner’s arguments are a bit disingenuous.
Petitioner admits that he acted in a hostile, threatening, and violent manner
toward an ex-girlfriend, within an hour of leaving prison. Whatever
process Petitioner claims to lack in this situation is irrelevant; there is no
doubt that he violated the expected standards of his incipient furlough. Any
process potentially missing does not undercut this well established fact.
Nor do any of Petitioner’s arguments establish that he was hurt by any
deficiencies in Correction’s process. Petitioner’s hearing was held soon
after his return. He was able to present evidence, raise questions, and
respond to the charges. Regardless of his status, Petitioner had the process
he was due.

       Finally, Petitioner’s main concern is really about the loss of his
furlough. Aside from the statutory right Corrections had in withdrawing his
furlough, there are sound public policy reasons to uphold Correction’s
decision to punish Petitioner in this manner. Conditional release and other
types of long-term furlough and parole programs are designed to help an
inmate ease back into society after incarceration. They are attractive to
society because they ease prison overpopulation and give inmates
incentives to turn away from the anti-social behaviors that landed them in
trouble in the first place. For inmates, they are coveted opportunities to
leave prison and regain some freedoms. They also offer them the chance to
reintegrate with society, adjust to freedom, and rebuild work and personal
connections.

       Given these benefits, it would only be logical that inmates would
have the greatest incentive to be on their best behavior at the intake
interview when furlough is a fresh possibility and prison is close at hand.
Petitioner’s failure to adhere to the strictures of his conditional reentry
within an hour of his release from prison did not bode well for his future
success. When an inmate cannot adhere to the rules in Correction’s facility,
when he is mere moments away from conditional reentry furlough and
greater freedom, then both he and society are best served by his return to
prison where he may learn from his mistakes.

       Based on the foregoing, Petitioner’s motion for summary judgment
is Denied. Department of Correction’s motion for summary judgment is
Granted. Case is Dismissed.

      Dated at Burlington, Vermont________________, 2005.




                                  _________________________________
                                              Richard W. Norton, Judge
