2014 VT 48


State v. Hemingway (2011-233)
 
2014 VT 48
 
[Filed 09-May-2014]
 
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.
 
 

2014 VT 48

 

No. 2011-233

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Franklin Unit,


 


Criminal Division


 


 


Todd Hemingway


April Term, 2012


 


 


 


 


Mark
  J. Keller, J.


 

Deborah A. Celis, Franklin County Deputy State’s Attorney,
St. Albans, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Marshall Pahl,
Appellate Defender, Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Defendant appeals from the trial court’s
order revoking his probation.  On appeal, defendant argues that he did not
receive a “certificate explicitly setting forth” his probation conditions, as
required by 28 V.S.A. § 252(c), and that he did not have notice of the
conditions.  He also contends that the court did not make adequate factual
findings regarding the credibility of defendant’s wife, who is the complainant,
and that the court’s findings were erroneous.  We agree with defendant’s
claim as to the failure to comply with the requirements of § 252(c) and
reverse on that ground.
¶ 2.            
On April 12, 2010, defendant pled guilty, by plea agreement, to
first-degree aggravated domestic assault for strangling the complainant, and to
five counts of violations of conditions of release.  The plea agreement,
signed by defendant and his attorney, contained a special condition of
probation that defendant not abuse or harass the complainant.  At the
beginning of the plea hearing, in defendant’s presence, the State noted orally
on the record the conditions of release, which included “no abuse or harassment
of [the complainant].”  After a plea colloquy, the judge said, “Your
probation will be for a period of at least ten years.  And the other
conditions we’ve described here all apply.”  The court accepted the plea
agreement and sentenced defendant to five-to-fifteen years, all suspended but
forty days to serve.  Defendant did not receive a “certificate explicitly setting forth the conditions upon which he [was]
released.”  28 V.S.A. § 252(c).  The State concedes that
defendant never signed a probation order.
¶ 3.            
In July 2010, defendant and the complainant had an altercation in which
the complainant alleged that defendant became violent.  In the beginning
of August, the complainant advised the probation office that defendant
continued to call her, drive by her house, and follow her friends.  He was
then arrested for a violation of probation.  In September, the State filed
a violation of probation complaint against defendant.  A violation of
probation merits hearing was held on March 3, March 30, and April 28, 2011.
¶ 4.            
At the merits hearing, defendant’s probation officer first testified
that he had the opportunity to meet with defendant and to review defendant’s
conditions of probation.  Later, the probation officer was asked whether
he had reviewed the conditions of probation with defendant.  The probation
officer answered, “I don’t recall if I did or not, if we specifically went
over—over those conditions.”  The court asked the probation officer how
defendant knew “what the conditions of probation were,” and the probation
officer replied, “I know—how does he know, I don’t know.” 
¶ 5.            
The complainant testified about the July 2010 incident as follows. 
Defendant became upset when the complainant went to a fair at the end of
July.  When she returned from the fair, defendant began calling her and
her family members.  He then drove to the home at which the complainant
was staying and began to yell at her and call her vulgar names.  She got
in a vehicle with defendant, and he continued to berate her during the drive
and after they arrived back at the complainant’s home.  Defendant slapped
the complainant in the face and grabbed her neck.
¶ 6.            
The complainant also testified that defendant had contacted her and her
supervisor at the campground where she worked during the summer of 2010, that
he threatened to burn down the campground, and that her supervisor would not
rehire her because of her relationship with defendant.  She further
testified that, in the past if she had been upset with someone, she had hit
herself and then claimed that someone had assaulted her.  She testified
that she was currently upset with defendant.  She testified that she had
recanted abuse allegations before “because of the kids and other reasons” and
“[b]ecause he would always tell me that he was
sorry . . . I felt bad for the girls and I was with him and
I just wanted him to get better.”  She testified that she was scared of
defendant.
¶ 7.            
Defendant’s mother testified that she saw no physical contact between
the complainant and defendant on the day of the fair, and that she did not
believe defendant had assaulted the complainant in the past.  The
complainant’s mother testified that the complainant tells the truth sometimes,
and sometimes she does not, “just like everybody else.”  The complainant’s
mother also testified that the complainant had previously asked her to “say
whatever [she] could” to keep defendant out of jail, and that the complainant
had previously recanted allegations of abuse.  By way of stipulation, the
complainant’s campground supervisor’s deposition testimony was admitted. 
The supervisor stated that defendant was very polite, that she would not rehire
the complainant because of the complainant’s character, and that defendant did
not threaten to burn down the campground.
¶ 8.            
The court first found that defendant was on probation and that certain
conditions of probation were imposed.  The court cited State v. St.
Francis, 160 Vt. 352, 354, 628 A.2d 556, 557-58 (1993), reasoning that
defendant had notice of, and agreed to the conditions, because he signed a plea
agreement that was accepted and approved by the court and in which defendant
agreed not to abuse or harass the complainant.  The court further found
that defendant violated the no-abuse-or-harassment condition.  The court
found that the complainant “has a spotted history of credibility,” that she may
have lied to the State and the defense regarding defendant’s activities at her
workplace, and that she has lied and had others lie in order to get the State
to dismiss previous charges against defendant.  Nevertheless, the court
credited the complainant, stating that her “testimony regarding the activity
surrounding the evening at the fair had the ring of truth.”  Ultimately,
the court sentenced defendant to serve the underlying sentence of five-to-fifteen
years.
¶ 9.            
Defendant challenges his conditions of probation on two grounds: (1)
defendant never agreed to the condition at issue so he is not bound by it; and
(2) the court failed to comply with the written notice requirements of 28 V.S.A.
§ 252(c), and that failure makes the condition unenforceable against him. 
Defendant also argues that the court did not make adequate factual findings on
the complainant’s credibility and that the court’s findings are clearly
erroneous.  The State contends that defendant had notice of his probation
conditions because he negotiated and signed a plea agreement, which contained
the no-abuse-or-harassment clause, and that the court’s findings are adequate
and supported by the evidence.  Because we agree with defendant that the
court’s failure to comply with § 252(c) makes the probation condition
unenforceable, we do not reach the parties’ arguments as to defendant’s actual
notice of, or agreement with, the condition.
¶ 10.        
The question of whether the failure to comply with 28 V.S.A.
§ 252(c) renders a revocation of probation invalid is a legal question,
which we consider de novo.  See State v. Smith, 2011 VT 83, ¶ 4, 190 Vt. 222, 27 A.3d 362.  
¶ 11.        
The statute at issue provides that a defendant who is placed on
probation “shall be given a certificate explicitly setting forth the conditions
upon which he or she is being released.”  28 V.S.A. § 252(c). 
Generally, the imperative “shall” indicates that the provision is
mandatory.  See In re Green, 2006 VT 88, ¶ 2, 180 Vt. 597, 908
A.2d 453 (mem.).  Accordingly, § 252(c) mandates that a defendant
receive a certificate detailing his or her conditions of probation; however,
the statute does not provide an explicit consequence for the failure to comply
with its terms.  The issue, therefore, is the correct remedy for statutory
noncompliance, as it is undisputed that defendant in this case did not receive
the requisite certificate.  As detailed below, we are persuaded by
defendant’s arguments that the trial court’s failure to comply with the
statutory requirement makes the condition unenforceable.
¶ 12.        
We have recently addressed the question of when failure to comply with a
statutory notice requirement renders notice invalid in Vermont.  In In
re Soon Kwon, 2011 VT 26, ¶ 14, 189 Vt. 598, 19 A.3d 139 (mem.), we
held that the question of whether actual notice is sufficient or whether
statutory notice is required is “dependent on the statutory scheme and the
content of the legislation.”  In that case, which arose in the
landlord-tenant context, we noted that the section of the Landlord-Tenant Act
that provided for notice was a “consumer protection provision,” id.
¶ 15, and recognized a “clear rationale in this context for requiring
specific methods of giving notice,” which was that the purpose of the statute
was to bring about the swift return of security deposits.  Id.
¶ 19.  We reasoned that “[t]he required methods of returning the
deposit are likely to cause expeditious receipt; other methods may not.”  Id. 
Consequently, we found that strict compliance with the statutory provision was
necessary to render the notice valid.
¶ 13.        
We reiterated the holding of Soon Kwon in Daniels v. Elks Club
of Hartford, 2012 VT 55, ¶ 35, 192 Vt. 114, 58 A.3d 925, but found
that in that context—notice from a junior creditor to a mortgagee of his or her
interest in a property—the statutory requirement “appears to have the primary
purpose of ensuring that mortgagees not be burdened with constantly monitoring
for attachments before issuing advances.”  Id. ¶ 36. 
Therefore, we reasoned, “[a]ccepting actual notice in the place of written
notice does not undermine this purpose because it does not impose any
additional burden upon the mortgagee.”  Id.
¶ 14.        
In this case, we must similarly look for special characteristics of the
subject matter and structure of the statute that shed light on whether the
Legislature intended actual notice to suffice.  In this area of law, there
are two reasons for us to insist on § 252(c) compliance—consisting of a
clear, written probation agreement—to find that a probation condition is
effective.
¶ 15.        
First, a probationer may not challenge a probation condition in defense
of a violation complaint, but must do so earlier, before noncompliance is
alleged.  State v. Austin, 165 Vt. 389, 401-02, 685 A.2d 1076,
1084-85 (1996).  To do so, the probationer must have the exact language of
the condition, not the general description in a plea agreement or the
description given orally at sentencing.  In this case, the majority of the
special probation conditions contained in the plea agreement were worded
differently in the probation order.  The wording of § 252(c) shows
that the Legislature intended that defendant receive in writing the exact
wording of the conditions by its requirement that the certificate “explicitly
set[] forth the conditions upon which he or she is being released.”  (Emphasis
added.)  Without enforcement of this requirement, defendant will lose the
opportunity to challenge probation conditions because he or she will not know
that they were imposed.  Essentially, that is what occurred here, where
twenty probation conditions were imposed on defendant without notice.[1]

¶ 16.        
The second reason, however, is probably the more important one.  In
light of what is at stake for the probationer—loss of liberty for a
violation—it is vital that the probationer have a clear and certain
understanding of the obligations assumed.  Endorsing a requirement that
probation conditions be in writing, Professor LaFave observed that “when that
is not done the probationer will probably misunderstand the precise terms of
his obligations.”  6 W. LaFave, J. Israel, N. King & O. Kerr, Criminal
Procedure § 26.9(a), at 861 (3d ed. 2007).  Indeed, probation
revocation cases that have come before us in which the scope and nature of the
probationer’s obligation is in dispute show the need for clear probation
obligations and notice of what those obligations are.
¶ 17.        
A good example of such a dispute is seen in the recent decision in State
v. Blaise, 2012 VT 2, 191 Vt. 564, 38 A.3d 1167 (mem.), which dealt with
oral instructions given by a probation officer pursuant to a probation
condition requiring compliance with any such instructions.  We acknowledge
that the statute does not require such instructions by a probation officer to
be in writing, but the confusion in Blaise caused by insufficient
written instructions demonstrates the type of dispute that this Court would
regularly find itself policing if we did not require statutory written notice
of probation conditions.  The probation officer in that case purported to
enter into a written contract with the probationer with respect to the most
important probation conditions, but the terms of the contract were sparse,
incomplete and vague.  Thus, the trial court relied upon the testimony of
the two probation officers who worked on defendant’s case, whose memories of
their oral instructions to the probationer were also incomplete and
vague.  In a split decision, a majority of this Court found that the
evidence, either the writing or the testimony, did not support the State’s
claim of the probation conditions that defendant was alleged to have
violated.  The majority concluded, with respect to the main condition at
issue, that it did not require that defendant attend a particular treatment
program that he had chosen voluntarily to attend but stated only that
attendance at that program met the applicable probation condition.  Id.
¶ 20.  The dissent responded: “It is not a finer point of the Geneva
Convention we are interpreting, but an everyday probation condition.  Its
terms and requirements were plain enough to the defendant, the officer, and the
court.”  Id. ¶ 35 (Burgess, J., dissenting).  The lesson
of the confusion and the ultimately divided decision in Blaise is that
we need clear, explicit terms in writing.
¶ 18.        
This case similarly presents a compelling example of that need. 
The first page of the plea agreement states in summary terms the six additional
probation conditions defendant will agree to for the three offenses covered by
that page.  The second page, which is separately signed by defendant, the
prosecutor, and the judge, covers three additional offenses but contains no
special probation conditions for those offenses.  On the backs of both
pages is a list of the standard conditions that will be imposed by the
court.  Not all the standard conditions ultimately included in the court
order are stated on this back side.  At the change-of-plea hearing the
prosecutor described the six additional probation terms to be imposed as “the
probation conditions” and never mentioned the standard probation
conditions.  The only statement from the judge was: “And the other
conditions we’ve described here all apply,” even though the judge had described
no probation conditions.  We recognize that the probation condition for
which there is the strongest claim that defendant had actual notice is the one
at issue, at least as to the three offenses covered by it.  The statement
of this condition in the plea agreement is the same as in the probation
order.  If the violation were based on one of the standard conditions, the
State would have to argue actual notice based on the boilerplate terms on the
back of the plea agreement—that defendant probably never saw—and in the face of
the prosecutor’s statement that the probation conditions were the six special
conditions, without mentioning the standard conditions.  If the violation
were based on a condition added by the court, with no notice to the defendant,
this case would be even clearer.
¶ 19.        
We conclude that the Legislature reached a balance between justice in
the individual case and proper administration of the probation system by
requiring that there be explicit, written notice of probation terms in every
case.  Turning this notice requirement into a paper tiger, by holding that
there is no consequence for its violation, would undermine its purpose. 
The main incentive to obey the command would be eliminated, and we would be
required to determine what actual notice was given based on an imprecise
record.  We decline to perpetuate a world in which it could take a divided
vote of this Court to figure out the terms of probation.  
¶ 20.        
The State relies in particular on our decision in St. Francis,
160 Vt. 352, to argue that the conditions of probation are effective at the
moment they are read aloud in open court—at the change-of-plea hearing—rather
than at the moment the probation order is signed.  That case, however, is
fully consistent with our decision today.  In St. Francis, the
defendant signed a probation order on the same day he was sentenced.  The
issue in that case was whether his probation could be revoked for acts that
occurred before he was officially on probation and before he signed a
“probation contract,” but after he had been sentenced and signed a probation
order.  We held that the probation order itself was sufficient basis on
which to revoke that defendant’s probation, even prior to the beginning of the
probationary period.  Id. at 355, 628 A.2d at 558.  Thus, the
obvious distinguishing factor between St. Francis and this case is that
the defendant in St. Francis had, in fact, signed a probation order
issued by the court.
¶ 21.        
The State also argues that the plea agreement, signed by defendant and
the prosecutor prior to the sentencing hearing, is enforceable as a contract in
its own right and therefore may be used to prove that defendant violated his
conditions of probation.  In this case the plea agreement, which was
signed by defendant, contained the same condition that the State is attempting
to enforce in the unsigned probation order.  In essence, the State is
arguing that we ignore § 252(c) or hold that a violation of the statute does
not invalidate a condition if there is a plea agreement containing the same
condition.  This argument is a variation of the State’s argument that
actual notice should be sufficient, irrespective of compliance with § 252(c),
and we reject it for the same reason.
¶ 22.        
Additionally, we reject the State’s argument because plea
agreements—although binding on the prosecutor—are not binding on the sentencing
court.  V.R.Cr.P. 11(e)(2).  If the court accepts a plea agreement,
it is bound to adopt a disposition “provided for in the plea agreement or a
less onerous disposition.”  V.R.Cr.P. 11(e)(3).  Thus, the
requirement that defendant be provided with a “certificate explicitly setting
forth the conditions upon which he or she is being released,” 28
V.S.A. § 252, is not satisfied by the plea agreement, because the
conditions of release are ultimately still set by the court at sentencing, and
not by the prosecutor during plea negotiations.  The conditions of release
thus do not necessarily reflect all the prosecutor seeks.[2]  The terms of the plea agreement,
therefore, may not be used alone to prove a violation of probation; only a
signed probation order may be so used.  None of the cases cited by the
State persuade us to ignore this explicit requirement of § 252.
¶ 23.        
In sum, we uphold defendant’s challenge based on the failure to meet the
requirements of § 252(c).  Without the explicit written notice
required by law, defendant’s violation of probation cannot stand.  Because
we reverse on this ground, we do not reach the other claims defendant makes on
appeal.[3]
Reversed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 24.        
REIBER, C.J., dissenting.   While defendant did not
receive a formal certificate setting forth the conditions of his probation,
there is no question that he had actual notice of the plea condition that he
refrain from abusing and harassing his wife, the victim of his domestic
violence.  Not only was this an obvious restriction on defendant’s conduct
given the nature of his offense, but the condition was stated orally at the
change-of-plea hearing, written on the plea agreement, which defendant signed,
and contained in the resulting probation order.  The main purpose of the
statutory requirement is to provide defendants with notice of their probation
conditions.  Because defendant had actual notice of the condition against
abusing or harassing his wife, the failure to provide a certificate was
harmless and the condition can be enforced.  I dissent. 
¶ 25.        
The undisputed relevant facts demonstrate that defendant was well aware
of the condition that he violated.  Defendant pleaded guilty to violations
of conditions of release and to first-degree aggravated domestic assault for
strangling his wife.  Not surprisingly, the plea agreement signed by
defendant contained the following hand-written special condition “No abuse or
harassment of [defendant’s wife].”  Defendant signed the plea
agreement.  At the plea hearing, the state’s attorney explained the terms
of the plea agreement, including the no-abuse-or-harassment condition. 
The court accepted the plea and sentenced defendant to five-to-fifteen years,
all suspended but forty days to serve, and instructed that the condition would
be imposed.  The resulting probation order included the
no-abuse-or-harassment condition.  Defendant did not, however, receive a “certificate explicitly setting forth the conditions upon
which he [was] released.”  See 28 V.S.A. § 252(c).  After
an altercation with his wife, defendant was charged with violating the
no-abuse-or-harassment condition of his probation.  Following a hearing,
the court found defendant had notice of the conditions.  The court found
defendant violated his conditions and revoked his probation. 
¶ 26.        
Defendant’s defense to the probation violation is that he lacked notice
of the condition precluding him from abusing or harassing his wife, the victim
of his domestic assault.  The majority does not reach the question of
whether defendant had actual notice of the condition because it concludes that
lack of a certificate invalidates the conditions as a matter of law.  Such
a technical and extreme reading of the statute is neither mandated by the
statute’s language nor necessary to effectuate the statute’s purpose of
providing notice of probation conditions to defendants.  Based on the
court’s findings that defendant had actual notice of the prohibition against
abusing or harassing his wife, the failure to provide a certificate was
harmless and the court’s finding of a violation and consequent revocation of
defendant’s probation should be affirmed.
¶ 27.        
The relevant statute states: “When an offender is placed on probation,
he or she shall be given a certificate explicitly setting forth the conditions
upon which he or she is being released.”  28 V.S.A. § 252(c). 
Ascertaining whether a statutory provision is mandatory or directory is a
matter of legislative intent, which is gleaned from the statute’s language and
purpose.  In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892
(1987).  The difference between a mandatory and directory statute is the
consequence for failing to perform the delineated duty.  The difference
rests on whether the failure to perform a statutory duty will invalidate the
governmental action to which the requirement is related.  1A Sutherland
Statutory Construction § 25:3 (7th ed. 2013).  
¶ 28.        
Certainly, a statute’s use of the term “shall” generally indicates that
the provision is mandatory.  See In re Green, 2006 VT 88, ¶ 2, 180
Vt. 597, 908 A.2d 453 (mem.) (concluding that elections statute using word
“shall” and containing a specific consequence for failure to comply created a
mandatory requirement).  But, this is not the only relevant
question.  Even where a statute uses “shall,” if it does not contain a
consequence for failure to act, the provision is directory.  See, e.g., Shlansky
v. City of Burlington, 2010 VT 90, ¶ 17, 188 Vt. 470, 13 A.3d 1075; Mullestein,
148 Vt. at 173-74, 531 A.2d at 892.
¶ 29.        
Here, the statute neither identifies a person or entity particularly
charged with providing the certificate, nor does it prescribe a consequence for
failing to give the certificate to a particular defendant.  The lack of an
express requirement to complete the duty and a specified consequence for
failure to comply indicates a lack of legislative intent to create a mandatory
requirement.  State v. Singer, 170 Vt. 346, 348, 749 A.2d 614, 616
(2000).  The majority’s contrary conclusion runs counter to our case law.
¶ 30.        
Most importantly, the act of providing the certificate is not essential
to the main purpose of the statute.  If an action is essential to the main
objective of the statute, then the statute is ordinarily mandatory and
violation of its terms will invalidate subsequent proceedings.  Warner
v. Mower, 11 Vt. 385, 394 (1839).  If, however, the provision merely
explains “the manner of doing a thing, and is not of the essence of the
authority for doing it,” the statute is directory and a violation will not
invalidate subsequent proceedings.  Id.
¶ 31.        
Here, the statute at issue falls into the latter category.  The
main purpose of the statute is to provide defendants with notice of probation
conditions in accordance with due process requirements.  See State v.
Gleason, 154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990) (holding that due
process requires that defendant has fair notice of what acts will violate
probation, and that instructions from probation officer can provide such
notice).  This is reflected in the limited discussion of § 252(c) in
our cases.  In State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988),
this Court held that “due process requires that a convicted offender be given
fair notice as to what acts may constitute a violation of his probation,
thereby subjecting him to loss of liberty.”  Id. at 619, 547 A.2d
at 1331.  This Court described that such notice could be accomplished
through the § 252(c) certificate requirement or it could “be provided by the
instructions and directions given to defendant by his or her probation
officer.”  Id. at 619-20, 547 A.2d at 1331.  This indicates
that § 252(c) is one, but not the sole, means to provide defendants with
notice.  Thus, where the statute is not followed, but the defendant
otherwise receives notice of a condition, the subsequent proceedings to enforce
the noticed condition are valid.
¶ 32.        
Absent consequences for noncompliance or a more definitive statement
from the Legislature that it intended to invalidate probation violations where
a certificate was not provided, § 252(c) should be construed in concert
with the rest of the statutory scheme, which aims to effectuate general goals
of rehabilitation and protection of the public.  The same bill that included
the certificate requirement also contained a general purpose section, which has
changed little since its enactment.  1971, No. 199 (Adj. Sess.), § 20
(codified as amended at 28 V.S.A. § 1).  The following section
directs that the entire title shall be “construed in order to effectuate the
general purposes,” 28 V.S.A. § 2(a), which include “developing and
administering a correctional program designed to protect persons and property
against offenders of the criminal law and to render treatment to offenders with
the goal of achieving their successful return and participation as citizens of
the state and community.”  28 V.S.A. § 1(a).  
¶ 33.        
Therefore, probation has a rehabilitative purpose, but it is also
intended to protect society.  State v. Lockwood, 160 Vt. 547, 552,
632 A.2d 655, 659 (1993).  Invalidating known conditions that were not
provided in a certificate does not further the purpose of providing defendant
with notice of his conditions, but actually interferes with the legislative purpose
of protecting particular citizens and the public in general.  See Howard
v. Banks, 544 S.W.2d 601, 603-04 (Mo. Ct. App. 1976) (explaining that
public policy may impel interpreting statute containing word “shall” as
directory so that failure of public official to act does not prejudice rights
of citizens having no direct control over officials).  Here, the court’s
failure to provide a certificate caused defendant no harm since he was aware of
the condition.  On the other hand, invalidating the probation revocation
based on the ministerial failure to provide the certificate prejudices the
victim for whose protection the condition was imposed.  Absent more
specific direction from the Legislature, this Court should avoid a construction
that elevates technicality over the general purpose of protection.
¶ 34.        
Several states with statutes requiring that a probationer receive a
written statement of probation conditions have similarly held that the purpose
of the statute is to provide defendants with notice of their probation terms,
and conditions can therefore be enforced as long as a defendant receives actual
notice.  For example, in People v. Zimmerman, 616 P.2d 997 (Colo.
App. 1980), the defendant argued that his conditions were unenforceable due to
failure to provide notice as required by a statute that stated the defendant
“shall be given a written statement explicitly setting forth the conditions on
which he is being released.”  Id. at 999.  The court concluded
that the purpose of the statute was to provide defendants with notice of their
probationary terms, and that where a defendant had actual notice, failure to
comply with the statute did not require reversal.  Id.; see also State
v. White, 363 A.2d 143, 151 (Conn. 1975) (concluding that statute stating
court “shall” deliver written copy of probation conditions to defendant was
directory because it did not provide penalty, and enforcing condition against
defendant who had actual notice of condition); Seals v. State, 700
N.E.2d 1189, 1190 (Ind. Ct. App. 1998) (rejecting defendant’s claim that
failure to provide him with written statement of conditions precludes court
from revoking probation, and holding that failure was harmless where defendant
was advised and acknowledged he understood condition); Whitlow v.
Commonwealth, No. 2002-CA-000683-MR, 2003 WL 21949135, at *3 (Ky. Ct. App.
Aug. 15, 2003) (holding statute was intended to provide defendant notice, and
failure to provide written statement did not preclude enforcement of conditions
where defendant had actual notice).
¶ 35.        
Federal courts have uniformly reached the same result.  There is a
similar requirement under federal law pertaining to supervised release: 
  The court
shall direct that the probation officer provide the defendant with a written
statement that sets forth all the conditions to which the term of supervised
release is subject, and that is sufficiently clear and specific to serve as a
guide for the defendant’s conduct and for such supervision as is required.
 
18 U.S.C. § 3583(f).  All the
circuits to consider the issue have held that the “ultimate goal” of this
statute is to provide notice to the defendant, and, therefore, if the defendant
has actual notice of the condition he is charged with violating, then the
statute’s purpose is satisfied, and any error in providing a written statement
is harmless.  See United States v. Felix, 994 F.2d 550, 551-52 (8th
Cir. 1993); see also United States v. Arbizu, 431 F.3d 469, 470-71 (5th
Cir. 2005) (per curiam); United States v. Ortega-Brito, 311 F.3d 1136,
1138 (9th Cir. 2002); United States v. Ramos-Santiago, 925 F.2d 15, 17
(1st Cir. 1991).
¶ 36.        
The majority’s reliance on In re Soon Kwon, 2011 VT 26, 189 Vt.
598, 19 A.3d 139 (mem.), is misplaced.  In that case, this Court
considered a statute directing that a landlord “shall” provide notice of a
security deposit statement to former tenants “ ‘by hand-delivering or
mailing the statement . . . to the last known address of
the tenant.’ ”  Id. ¶ 10 (quoting 9 V.S.A.
§ 4461(d)).  The statute also explained that if a landlord failed to
return the security deposit with a statement within fourteen days, “ ‘the
landlord forfeits the right to withhold any portion of the security deposit.’ ”
 Id. ¶ 17 (quoting 9 V.S.A. § 4461(e)).  This Court held that
the statute created a bright-line rule and that even if a tenant had actual
notice, failure to comply with the notice provision resulted in forfeiture of
the deposit.  In so holding, this Court considered several factors. 
First, the statute had a consumer-protection purpose, and the focus was on
prompt return of a deposit.  Id. ¶¶ 15, 19.  Second, the use
of the word “shall” was mandatory language that obligated compliance by the landlord. 
Id. ¶ 16.  Third, in contrast to this case, the statute contained a
consequence for failure to comply.  Id. ¶ 17.  Finally, also
unlike this situation, the interpretation was consistent with the rest of the
statutory scheme.  Id. ¶ 18.  
¶ 37.        
The only similar factor is that the statutes in both cases employ the
word “shall.”  Unlike the statute in Soon Kwon, § 252
specifies no consequence for failure to provide a probation certificate. 
In addition, while the purpose of the statute in Soon Kwon was
frustrated if strict compliance was not required, furthering the legislative
purpose of requiring notice to probationers does not require that failure to
provide a certificate makes the resulting conditions unenforceable.  To
the contrary, the majority’s argument frustrates the purpose of the
statute.  This is not a consumer-protection statute, like the one in Soon
Kwon.  As explained above, the certificate requirement is part of a
statutory scheme that aims to both assist defendants and protect the
public.  Therefore, here, the statute must be read with the protection
goal in mind.
¶ 38.        
In more analogous circumstances, in several criminal cases, we have held
that failure to provide notice as required by rule or statute is harmless error
if the defendant had actual notice and did not suffer any prejudice from the
omission.  See State v. Ingerson, 2004 VT 36, ¶¶ 4-5, 176 Vt.
428, 852 A.2d 567 (holding that court’s failure to read indictment in open
court harmless error where defendant had actual notice of charges); State v.
Davis, 165 Vt. 240, 251-52, 683 A.2d 1, 8 (1996) (concluding State’s
failure to amend information harmless where defendant knew State sought life
imprisonment).  Similarly, reversal based on failure to provide a
certificate should only be granted in cases where the defendant was prejudiced
because he had no notice of the condition.
¶ 39.        
The majority proffers several reasons to support its interpretation of
§ 252(c), but none are persuasive.  The majority first posits that
because probationers must make any facial challenge to a condition prior to its
violation, the probationer requires notice of the condition’s exact
language.  The majority states that without § 252(c)’s requirement that
the defendant receive a certificate “defendant will lose the opportunity to
challenge probation conditions because he or she will not know that they were
imposed.”  Ante, ¶ 15.  Certainly, if a defendant does
not have notice of a condition, he or she cannot challenge it, but it is also
true that a condition cannot be enforced against a defendant without notice of
the terms.  State v. Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75
(2001) (mem.) (explaining that due process requires that defendant know prior
to probation revocation proceeding what conduct is forbidden).  Because
enforcement depends on notice, there is no circumstance under which a defendant
will be bound by a condition that was not noticed.  While a certificate is
a means to provide such notice, it is not the sole avenue for giving defendant
notice.  An error in failing to comply with the statute’s requirements is
harmless if defendant received notice by some other means.  Having
received notice, he is no lesser a position than an individual who received
notice that complied with § 252(c).[4]
¶ 40.        
Moreover, strictly enforcing the § 252(c) certificate requirement does
not ensure that the conditions provided therein will be unambiguous and clear,
as asserted by the majority.  Ante, ¶ 16.  The majority cites State
v. Blaise, 2012 VT 2, 191 Vt. 564, 38 A.3d 1167 (mem.), as an example of
the type of confusion that may arise when conditions are not expressly
certified in writing.  In Blaise, a general condition requiring
participation in counseling or training to the satisfaction of the probation
officer was imposed.  After the defendant was charged with violating
conditions for failing to complete a particular program, he argued that the
probation officer’s instruction to attend the program was communicated either
ambiguously or not at all.  Id. § 13.  The trial court
found otherwise, but even assuming there was uncertainty in Blaise, it
would not be averted by the majority’s holding today.  In Blaise,
there was no question regarding whether the defendant received the required §
252(c) certificate; the issue was the meaning of the condition.  Simply
requiring conditions to be in writing and included in a certificate does not
ensure that those conditions will be unambiguous and clearly stated.  Conversely,
even without a § 252(c) certificate, a condition can be plainly stated and
understood by all parties, as the trial court here found.  
¶ 41.        
Such was the situation in this case.  While the majority claims
that it wants to avoid perpetuating “a world in which it could take a divided
vote of this Court to figure out the terms of probation,” ante, ¶ 19,
there is no question here about the condition at issue.  Defendant was
prohibited from harassing or abusing his wife, who was victimized by
defendant’s domestic violence.  Defendant was so told in open court.
¶ 42.        
Finally, the majority’s concern about providing conditions in writing
does not necessitate its holding.  Receiving the certificate is not
necessary to the purpose of providing a defendant the conditions in writing
even if this were the purpose of the statute.  Here, the condition was
contained in writing.  It was set forth explicitly and identically in the
plea agreement and in the probation order.  The majority notes that conditions
in a plea agreement are not always adopted verbatim in the probation order, and
therefore without a certificate there could be confusion over the exact terms
of a condition.  This may be true in some circumstances, but it is
certainly not in this case.  Here, the condition in the plea agreement
matched identically to the condition imposed by the court in the plea
agreement.
¶ 43.        
The purpose of § 252(c) is to ensure that defendants have notice of
their probation conditions.  Without an express indication from the
Legislature that it intended the notice requirement of § 252(c) to act as
a strict bar against enforcement of probation conditions, defendants who know
their probation bars certain conduct should not be immunized from the consequences
of violating those conditions.  To allow defendant to escape
responsibility for violation of conditions known to him, but not received in a
formal certificate, elevates procedure over substance.  See State v.
White, 363 A.2d 143, 151 (Conn. 1975) (“Sentencing should not be a game in which a wrong
move by a judge means immunity for the prisoner.”).  Further, it is at
odds with the overall purpose of the probation statutes, which aim to
rehabilitate defendants while providing protection to the public.  Here,
invalidating the probation violation based on the court’s failure to provide
defendant a certificate harms foremost the victim of defendant’s crime. 
Such a result should not be reached lightly, especially where the language of
the statute does not particularly provide for this consequence.  I
respectfully dissent.  
¶ 44.        
I am authorized to state that Justice Burgess joins this dissent.

 


 


 


 


 


 


 


 


Chief Justice

 
 





[1] 
See infra, ¶ 18 (describing the standardized probation agreement forms
used in this case).  In theory, each probation order is the order of a
judge, and each order can be different.  In reality, the order is produced
by the court’s computer system, with the only variation being in the number of
conditions and the wording of some of them.


[2] 
The State’s general assertion that “[t]he special conditions of the order
simply mirror those contained on the plea agreement” may reflect common
practice, but may not be taken as a foregone conclusion.
 


[3] 
In reaching this result, we have not considered either the 911 call transcript
or the letter contained in the State’s printed case, nor have we relied upon
the State’s characterization of the execution of plea agreements and probation
orders contained in its brief.  Thus, we deny defendant’s motion to strike
as moot.


[4] 
The majority claims that this case is an example of how confusion in the
conditions that were imposed may arise without a certificate because some
conditions were stated orally at the change-of-plea hearing, some were included
in the plea agreement, and others were on the probation order.  It may be
that where a condition was included only in a plea agreement and not read at
the change-of-plea hearing or only included in the probation order, there would
be insufficient notice to defendant, but that is certainly not the case
here.  The identical no-harassment-or-abuse condition was read at the
change-of-plea hearing, included in the signed plea agreement, and written in
the probation order.  Based on these uncontested facts, the court properly
found that defendant had notice of the condition.



