Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

              SUPREME COURT DOCKET NO. 2010-194, 2010-195 & 2010-196

                                       JANUARY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    District Court of Vermont,
                                                       }    Unit No. 2, Bennington Circuit
                                                       }
 Todd E. Maddox, Sr.                                   }    DOCKET NOS. 918-8-09, 932-8-09 &
                                                                        972-9-09 Bncr

                                                            Trial Judge: David Suntag

                          In the above-entitled causes, the Clerk will enter:

       Defendant appeals from a district court order finding that he violated two conditions of
probation and imposing the underlying sentence of eighteen to thirty-six months with credit for
time served. Defendant contends that one of the probation conditions was void for vagueness
and consequently that the sentence must be vacated. We affirm.

        In November 2009, defendant pled guilty to several violations of abuse prevention orders
obtained by his former wife, was sentenced to a total of eighteen to thirty-six months, all
suspended except for forty-five days, and placed on probation. In early January 2010,
defendant’s probation officer filed a complaint alleging that defendant had violated a probation
condition requiring that he inform the officer “of the name and contact information of any person
with whom you are planning to have a date or with whom you are planning to begin a dating or
romantic relationship, prior to the date or beginning the relationship.” The complaint was based
upon a report from an acquaintance of defendant that, on several occasions, defendant had
appeared without notice at her home and place of employment offering her rides—and on one
occasion a flower—and had sent her emails asking her to spend time with him. Defendant had
told the complainant not to say anything about his visits with her because he was not allowed
contact with females.

        Based on the report, the probation officer met with defendant on January 12, 2009, and
directed him not to have any contact with the woman in question. Later that month, however, the
probation officer filed another VOP complaint based upon defendant’s admission that he had
given the woman a ride in direct contravention of the probation officer’s directive.

        Following a hearing in February 2010, the court found that defendant had committed both
violations. The court rejected defendant’s assertion that the probation condition prohibiting a
“dating” or a “romantic” relationship without prior notice was unconstitutionally vague, finding
that the concept was reasonably clear, and that, in any event, defendant understood the
prohibition. The court further found that even if the condition was vague and unenforceable, the
evidence clearly supported a finding that defendant had committed the additional violation of
failing to comply with the probation officer’s directive not to contact the complainant, rejecting
defendant’s claim that the contact was inadvertent. Moreover, the court observed that the latter
violation was far from de minimus, finding that it was “precisely why he’s on probation,” that he
“must follow court orders” and had not done so. “[H]e was specifically told not to have contact
with her, and he did.”

        At the subsequent sentencing hearing in May 2010, the court indicated that it viewed
imposition of the underlying sentence to be the only viable sentencing option based upon the
underlying history of physical and violent confrontations that had resulted in the abuse-
prevention orders in the first place, the numerous violations of those orders that had followed,
and the intimidating behavior defendant displayed toward the complainant, all of which
suggested that he was unable to comply with court orders. Based on that history, the court
concluded that a behavioral-counseling program in prison, followed by a transitional furlough or
parole program on the outside, was the only reasonable option that remained. Accordingly, the
court revoked probation and imposed the underlying sentence of eighteen to thirty-six months
plus credit for time served.

        Defendant renews his claim that the probation condition requiring notice before
beginning “a dating or romantic relationship” is unconstitutionally vague. He relies on a recent
federal circuit decision invalidating as unconstitutionally vague a probation condition requiring
notice before the supervisee enters into a “significant romantic relationship.” United States v.
Reeves, 591 F.3d 77, 79 (2d Cir. 2010). The federal court found that “[w]hat makes a
relationship ‘romantic,’ let alone ‘significant’ in its romantic depth, can be the subject of endless
debate that varies across generations, regions, and genders” and thus provided insufficient notice
of the prohibited behavior. Id. at 81. The State responds that Reeves is distinguishable because
the condition there required the additional showing of a “significant” relationship, and that
defendant understood the prohibited conduct in any event.

        We are not persuaded that the probation condition at issue failed to provide adequate
notice to defendant of the conduct prohibited. Unlike Reeves, the probation condition at issue
here did not contain a qualitative element predicated upon a showing that defendant was seeking
to initiate a “significant” romantic relationship; it merely required that defendant inform the
probation officer of his intent to begin a romantic or dating relationship, and we are satisfied that
these terms were sufficiently clear to put defendant on notice of the conduct subject to the
requirement. See State v. Danaher, 174 Vt. 591, 593-94 (2002) (mem.) (holding due process
satisfied where ordinary language of probation condition would put reasonable person on notice
of conduct prohibited). Moreover, even if the condition were somehow unclear in the abstract,
the facts here demonstrate that defendant plainly understood that it applied to this relationship, as
evidenced by his request to the complainant not to say anything about his contact with her.
Accordingly, we find no infirmity in the finding of a violation.

        Furthermore, the trial court here also found that defendant had unquestionably violated
the probation officer’s additional order not to contact the complainant, a finding which defendant
has not challenged on appeal. See State v. Hammond, 172 Vt. 601, 602 (2001) (mem.) (holding
that defendant may be put on notice as to what may violate probation condition by instructions


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and directions of probation officer). Accordingly, we find no error in the court’s decision to
revoke probation and impose the underlying sentence, a decision predicated, in the court’s view,
on the threatening nature of the underlying criminal behavior, defendant’s demonstrated history
of noncompliance with court orders, and the need for institutional programming.

       Affirmed.

                                            BY THE COURT:

                                            _______________________________________
                                            Paul L. Reiber, Chief Justice

                                            _______________________________________
                                            Denise R. Johnson, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice




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