2013 VT 25


State v. Freeman (2011-342)
 
2013 VT 25
 
[Filed 29-Mar-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 25

 

No. 2011-342

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Shaun L. Freeman


November Term, 2012


 


 


 


 


Michael
  S. Kupersmith, J.


 

Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
and Pamela Hall Johnson, 
  Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender
General, and Joshua S. O’Hara, Appellate Defender, Montpelier,
  for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.   Defendant, who was given a
twenty-year-to-life sentence following a plea agreement on assault charges,
challenges in this automatic appeal two of the probation conditions that were
attached to his plea agreement.  We uphold one of the conditions but
remand the case for the criminal division of the superior court to reexamine
and to justify, revise, or strike the other condition consistent with the
opinion set forth below.
¶ 2.            
In June 2010, defendant was charged with several criminal
offenses—including burglary of an occupied dwelling, aggravated sexual assault,
aggravated assault, aggravated domestic assault, and violation of an
abuse-prevention order—based on an incident in which he broke into the house
where his estranged wife was staying and assaulted her and the couple with whom
she was staying.  In October 2010, defendant entered into a plea agreement
in which he agreed to plead guilty to one count of aggravated domestic assault,
one count of aggravated sexual assault, and one count of aggravated assault
with respect to his actions towards his wife and one of the other
victims.  He also agreed to plead no contest to one count of aggravated
assault with respect to his actions towards the third victim.  In
exchange, the State agreed to dismiss the other charges and to recommend an
effective sentence of twenty years to life in prison.
¶ 3.            
The change-of-plea hearing was held on the same day that defendant and
the State entered into the plea agreement.  At the conclusion of the plea
colloquy, the court accepted defendant’s pleas, finding them to be knowing,
voluntary, and factually based.  The court ordered a presentence
investigation (PSI) report and set the matter for sentencing.  Before the
sentencing hearing, defendant moved to withdraw his pleas on the ground that he
had not understood that his minimum release date would exceed twenty years because
of the Department of Corrections’ classification system.  Defendant
withdrew his motion, however, after the parties agreed to change the original
recommended sentence to an aggregate sentence of twenty years to life, all
suspended except twenty years and probation.
¶ 4.            
In February 2011, the PSI report was filed with special conditions of
probation appended to it.  In March 2011, defendant filed comments and
objections to the report, but did not mention the appended special probation
conditions.
¶ 5.            
Defendant’s sentencing hearing was held on March 22, 2011.  At the
beginning of the hearing, the court stated that it had reviewed the PSI report,
a psycho-sexual evaluation of defendant, and defendant’s comments and
objections to the report and evaluation.  The court stated that it did not
need to address defendant’s comments and objections because defendant did not
object to the agreed-upon sentence.  The court expressly noted that
although the plea agreement did not mention any of the special probation
conditions, those “recommended” conditions had been appended to the PSI report.
 The court stated: “I gather the parties at least implicitly agree those
should be made special conditions of probation.”  The prosecutor agreed
with that statement, and the probation officer who had authored the PSI report
informed the court of changes to conditions not the subject of the instant
appeal.  Defendant and his attorney remained silent during this exchange
and never commented on the probation conditions.  Before defendant made
his statement to the court, his attorney stated that “we are in agreement with
the plea that has been—the sentencing recommendation that’s been submitted to
the Court.”
¶ 6.            
At the conclusion of the hearing, defendant was sentenced in accordance
with the plea agreement to twenty years to life, all suspended except twenty
years, and probation with numerous standard and special probation conditions,
including the following two conditions that defendant challenges on direct
appeal of his sentence:
38. You shall
submit to, and pay for, periodic polygraph examinations at the direction of
your PO or designee.  These polygraph examinations will be used to
determine your compliance with supervision and treatment requirements.
 
. . . .
 
40. Def. shall
reside/work where PO or designee approves.  Def. shall not change
residence/employment without prior permission of PO or designee.
 
¶ 7.            
This automatic appeal followed.  On appeal, defendant requests that
conditions 38 and 40 be struck based on the following claims of plain error:
(1) condition 38 violates his constitutional due process rights because it
requires him to agree to the admission of polygraph results at any future
probation revocation proceeding; and (2) condition 40 is not reasonably related
to his offenses and is overbroad and unduly restrictive in that it gives his
probation officer complete autonomy to restrict his residence and work. 
The State responds that defendant waived any challenge to the probation
conditions and thus cannot claim plain error in their imposition.
¶ 8.            
We first consider whether defendant has waived even a plain-error
challenge to the conditions.  Defendant acknowledges that he did not
object to the challenged conditions but contends that imposition of the
conditions amounts to plain error.  The State argues that even a
plain-error analysis is unavailable to defendant because he waived any
challenge to the conditions by remaining silent when the court noted its
assumption that the parties had “at least implicitly” agreed that the
conditions appended to the PSI report “should be made special conditions of
probation.”
¶ 9.            
Our case law on waiver and whether it precludes a plain-error analysis
is not entirely clear.  “Our general rule is that waiver cannot be
construed from silence; it requires ‘proof of a voluntary and intentional
relinquishment of a known and enforceable right.’ ”  State
v. Baker, 2010 VT 109, ¶¶ 11-12, 189 Vt. 543, 12 A.3d 545 (mem.) (concluding that defendant
did not waive his right to challenge legality of restitution order either by
signing plea agreement or by remaining silent at plea hearing). 
Certainly, “[i]n the absence of an obligation to
speak, we cannot find a waiver from silence.”  Id.
¶ 11.  On the other hand, we have found that silence amounted to a
waiver in certain circumstances that created “great potential for sandbagging
the trial court.”  In re Cardinal, 162 Vt. 418, 421, 649 A.2d 227,
230 (1994) (holding that defendant waived his right to be present during voir dire where he failed to notify court that he could not
see and hear individual voir dire proceedings taking
place at bench); see also State v. Nguyen, 173 Vt. 598, 600, 795 A.2d
538, 541 (2002) (mem.) (concluding
that “defendant’s failure to raise his inability to understand the proceedings,
coupled with his counsel’s explicit representation that no interpreter was
needed for arraignment, was a waiver under Cardinal”).
¶ 10.         Even
when we have found that silence amounted to a waiver, we have at times implied
that the waiver did not preclude a plain-error argument on appeal.  See Nguyen,
173 Vt. at 600, 795 A.2d at 542 (finding waiver under Cardinal, but then
addressing defendant’s plain-error arguments after concluding that “we can
reverse only for plain error”); see also State v. Koveos,
169 Vt. 62, 73, 732 A.2d 722, 730 (1999) (concluding that, by agreeing to use
of child victim’s deposition testimony at trial, defendant waived his right to
argue that admission of deposition testimony violated his constitutional
confrontation rights, and further concluding that there was no plain error “[a]ssuming that plain error review is available”); but see State
v. Spooner, 2010 VT 75, ¶ 23, 188 Vt. 356, 8 A.3d 469 (concluding that
“defendant cannot now claim error regarding the course of action he impliedly,
if not explicitly, agreed to, and there is therefore no basis for finding plain
error”).  Further, we allow plain-error review on direct appeal in an
analogous situation where a defendant is claiming that the court failed to
satisfy the criteria of Vermont Rule of Criminal Procedure 11 before accepting
a plea.  See State v. Marku,
2004 VT 31, ¶ 22, 176 Vt. 607, 850 A.2d 993 (mem.)
(noting that defendant objecting to error during plea
colloquy may obtain reversal “upon a showing of plain error”).  
¶ 11.         Given
the circumstances here, we decline to preclude defendant’s plain-error
arguments.  At the sentencing hearing, the court “gather[ed]” that the parties had “at least implicitly” agreed to
“recommended” special probation conditions appended to the PSI report.
 Thus, as the court acknowledged, at that point the special conditions
were mere recommendations to which the parties had only impliedly agreed at
best.  Neither defendant nor his counsel responded, let alone assented, to
the court’s statement.  Although the conditions apparently were appended
to the plea agreement, the agreement did not actually mention the
conditions.  Moreover, the copies of the order containing the probation
conditions included in the record on appeal are signed by the trial court, but
no copy of the order is signed by defendant or his probation officer.  On
this record, we will not presume a waiver that precludes defendant’s
plain-error arguments.
¶ 12.         This
conclusion is particularly appropriate in a case such as this involving
probation conditions because of our previous holding that “ ‘a probationer is
barred from raising a collateral challenge to a probation condition that he was
charged with violating, where the challenge could have been raised on direct
appeal from the sentencing order.’ ”  State
v. Amidon, 2010 VT 46A, ¶ 9, 188 Vt. 617, 8 A.3d
1050 (mem.) (quoting State
v. Austin, 165 Vt. 389, 401, 685 A.2d 1076, 1084 (1996)).  Because
this is defendant’s only opportunity to challenge the condition, we will not
preclude his plain-error arguments based on an implied waiver.
¶ 13.         Defendant’s
first argument is that condition 38 must be vacated because it violates his due
process rights by requiring him to agree to the admission of polygraph results
at any future revocation proceeding.  The problem with this argument is
that its premise is incorrect—condition 38 does not require defendant to agree
to admission of polygraph results at any future probation revocation
proceeding.  The challenged portion of the condition states that the
polygraph examinations “will be used to determine your compliance with supervision
and treatment requirements.”  This statement indicates only that the
polygraph examinations will be used as an investigative tool to determine
whether defendant is remaining in compliance with other probation
conditions.  There is no explicit or implicit requirement that defendant
agree to admission of polygraph results in any future revocation proceeding,
and thus we do not address whether in fact such evidence would be admissible in
probation revocation proceedings.
¶ 14.         The
fact that the challenged condition is not what defendant claims it to be is
best illustrated by examining Carswell v.
State, 721 N.E.2d 1255 (Ind. Ct. App. 1999).  In Carswell,
the defendant challenged several probation conditions, including one that: (1)
required him to submit to a lie detector test “to determine personal drug
and/or alcohol use and your knowledge of drug trafficking”; and (2) provided
that positive test results “may be used against you in a court proceeding and
will constitute a violation of your probation.”  Id.
at 1264 (quotations omitted).  The court concluded that “[a]lthough a condition requiring [the defendant] to submit to
a polygraph examination is appropriate, a trial court cannot coerce a defendant
to agree to the admissibility of evidence that otherwise would be inadmissible
because it had not been found to be scientifically reliable.”  Id.
(quotations omitted).  Accordingly, the court struck only that part of the
condition making the polygraph results admissible in a later court
proceeding.  The portion of the condition that is essentially identical to
the challenged condition here was left intact.  Defendant’s plain-error
argument with respect to condition 38 is unavailing.
¶ 15.         Defendant’s
second argument is that condition 40 must be vacated because it is not
reasonably related to his offenses and is overbroad and unduly
restrictive.  We agree that the condition is plainly overbroad and unduly
restrictive given the lack of findings tying the broad condition to the
offenses for which defendant was convicted.
¶ 16.         Condition
40 requires defendant to reside and work where his probation officer approves
and not change residence or employment without his probation officer’s
permission.  We reviewed a similar condition in State v. Moses, 159
Vt. 294, 618 A.2d 478 (1992).  There, the defendant, who had been
convicted of kidnapping, elderly abuse, and assault, challenged several
probation conditions, including one that required him to reside where his
probation officer directed him to reside.  We concluded that the condition
was “unduly restrictive of the probationer’s liberty and autonomy” and was “not
fine-tuned to the specific rehabilitative and preventative goals applicable to
the case” in that it gave the defendant’s probation officer “open-ended
authority . . . to create any location-of-residence” requirement that the
officer deemed appropriate.  Moses, 159 Vt. at 300-01, 618 A.2d at 482.  We explained that instead of the
court “fashioning a specific restriction relating to defendant’s choice of
residence,” the condition effectively “turned over to a probation officer the
complete power to determine defendant’s residence.”  Id. at 300, 618 A.2d at 481.
¶ 17.         The
same can be said of the challenged condition in this case.  Without any
findings indicating the necessity of such a broad condition in this particular
case, condition 40 essentially allows the probation officer to dictate where
defendant will live and work.  “[W]here fundamental rights are involved, special care should be used to avoid overbroad or
vague restrictions.”  State v. Whitchurch,
155 Vt. 134, 137, 577 A.2d 690, 692 (1990) (citing American Bar Association,
Standards for Criminal Justice 2d § 18-2.3(e)).  We recognize that the
trial court has “great discretion in setting conditions of probation,” State
v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1202
(1985), and that defendant is making a plain-error argument in this case. 
Nevertheless, in light of this Court’s previous rejection of a near-identical
probation condition in Moses, we conclude that the trial court’s
imposition of this broad special condition without any findings explaining its
necessity is plain error.  See Spooner, 2010 VT 75, ¶ 22 (stating
that plain error will be found “where the error is both obvious and strikes at
the very heart of the defendant’s constitutional rights or results in a
miscarriage of justice if we do not recognize it” (quotations omitted)). 
Accordingly, the condition must be struck and the matter remanded for the court
to justify the condition or make it more specific.
Defendant’s sentence is
affirmed in all respects except that probation condition 40 is stricken and the
matter is remanded to give the criminal division of the superior court an
opportunity to justify, revise, or remove the restrictions on defendant’s
residence and employment consistent with this opinion, and to make findings
supporting any such restrictions if the court deems them necessary.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 

