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State v. Lucas (2014-047)
 
2015 VT 92
 
[Filed 10-Jul-2015]
 
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.
 
 



2015 VT 92



 



No. 2014-047



 



State of Vermont


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Orleans Unit,




 


Criminal Division




 


 




Jeremy Lucas


January Term, 2015




 


 




 


 




Howard
  E. Van Benthuysen, J.




 



James Lillicrap, Orleans County
Deputy State’s Attorney, Newport, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, Anna Saxman, Deputy
Defender General, and
  Kaitlyn Keating, Legal Intern, Montpelier, for
Defendant-Appellant.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund,
Robinson and Eaton, JJ.
 
 
¶ 1.            
ROBINSON, J.   Defendant Jeremy Lucas appeals a
trial-court order finding him in violation of a probation condition, imposed as
part of a deferred-sentencing agreement, requiring prior approval from a
probation officer before he changed his residence.  Defendant argues that
because his probation conditions included two inconsistent provisions governing
his choice of residence, he did not have adequate notice that his conduct would
violate the conditions of his probation.  Defendant also argues that the
condition in question contained an overly broad delegation of authority to his
probation officer, and that the trial court abused its discretion in revoking
his deferred sentence because the violation was minor and the probation officer
ultimately approved the place to which he had moved.  We affirm.
¶
2.            
In August 2013, pursuant to a deferred-sentencing agreement, 13 V.S.A.
§ 7041, defendant pleaded guilty to a misdemeanor charge of disseminating
indecent material to a minor, id. § 2802(a)(1).
 The charge arose from an incident in which defendant sent a photograph of
his genitals by text message to two minors, between thirteen and fifteen years
old, and received a picture of one of the minor’s breasts.  Defendant
entered his plea following a competency evaluation, in which defendant was
found competent.
¶
3.            
The court accepted defendant’s plea, entered a judgment of guilty,
deferred defendant’s sentence for two years, and issued a probation order.
 The probation conditions imposed by the court included what the court
referred to as “standard conditions A-P inclusive.”  Condition G provided,
“If you change your address or move, you must tell
your probation officer within two days.”  (Emphasis added.) 
In addition, the court imposed what it referred to as “special sex offender
conditions,” which appeared on an attached form produced by the Department of
Corrections listing other conditions, which could be checked off if applicable.
 The final checked box on this attached form stated, “You shall
reside/work where your Probation Officer or designee approves.  You shall
not change your residence/employment without the prior permission of
your Probation Officer or designee.”  (Emphasis added.)  During the
plea-entry hearing, the trial court outlined some, but not all, of the special
conditions of probation to which defendant was subject.  The court asked
defendant if he understood these conditions.  The court did not specifically
discuss either residence condition with defendant.
¶ 4.            
On October 23, 2013, the State filed a probation-violation complaint,
alleging that defendant had violated the requirement that he not change his
residence without the prior permission of his probation officer.  Before
the merits hearing on the probation-violation complaint, defendant moved to
dismiss the complaint and strike the residency condition.  In support of
his motion, defendant argued that under State v. Freeman, 2013 VT 25,
193 Vt. 454, 70 A.3d 1008, the condition requiring that defendant’s probation
officer give advance approval of his residence is unconstitutional because it
unduly restricts his liberty and gives too much discretion to probation
officers.
¶ 5.            
The undisputed testimony at the probation-violation hearing reflects the
following.  On October 3, 2013, defendant’s mother telephoned defendant’s
probation officer, and left a message asking the probation officer to return
her call.  The probation officer returned the call, but did not reach
defendant’s mother.  The following day, defendant’s mother left the
probation officer another message informing the officer that defendant had
moved from his previous residence to her home.  Defendant’s mother testified
that she had her son move to her home because she believed that his former
residence, which was located near a preschool, two churches, and a school, was
not a safe environment given his probation conditions.  The probation
officer investigated defendant’s new residence with his mother and subsequently
approved it.  The evidence at the hearing confirmed that defendant had
moved to his mother’s home before his probation officer approved the new
residence.
¶ 6.            
Following the hearing, the trial court denied defendant’s motion to
dismiss the complaint on the ground that defendant was “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.”  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 defendant agreed
to the deferred-sentence agreement and did not appeal his conviction, the trial
court ruled that he cannot now challenge the probation condition that he is
accused of violating.  Based on the above evidence, the court found that
the State had proven a violation of the conditions, struck the deferred
sentence, and imposed a zero-to-one-year suspended sentence, under the same
terms and conditions as the previous plea agreement.  See 13 V.S.A.
§ 7041(d) (“The court may impose sentence at any time if the respondent
violates the conditions of the deferred sentence during the period of
deferment”); id. § 7041(e) (“Upon violation of the terms of
probation or of the deferred sentence agreement, the court shall impose
sentence.”).
¶ 7.            
On appeal, defendant first argues that because his probation order
contained two conflicting conditions relating to his residence—one requiring
prior approval before he moved and one requiring only notification to his
probation officer within two days of moving—the order did not provide him
adequate notice that his conduct, which complied with one of the two
conditions, would constitute a violation.  The State argues that because
defendant is raising this argument for the first time on appeal, we should not
reach the merits of the argument.  The State further argues that
defendant’s challenge constitutes an impermissible collateral challenge to the
probation condition.
¶ 8.            
We agree with defendant that a challenge to a probation condition
based upon lack of notice that the condition prohibits conduct alleged to constitute
a violation is not an impermissible collateral challenge to the
condition.  As we have explained, “To be charged
with violating probation, a defendant must have notice before the initiation of
a probation revocation proceeding of what circumstances will constitute a
violation of probation.”  State v. Sanville, 2011 VT 34, ¶ 8, 189 Vt. 626, 22 A.3d
450 (mem.) (quotation omitted).  Where a
probation condition fails to “fairly inform defendant
of what actions might subject him [or her] to probation revocation,” the
defendant may raise an argument based on a lack of fair notice at a
probation-revocation proceeding, even if the defendant did not object to the
condition at the time it was imposed.  Id. ¶¶ 8-11 (reversing judgment that defendant had violated
unchallenged probation condition prohibiting “violent or threatening behavior”
because defendant was not fairly informed that
conduct in altercation with landlord could constitute violation).
¶ 9.            
We agree with the State, however, that defendant did not raise an
argument related to lack of fair notice or any argument arising from the
asserted conflict in the probation conditions regarding his residence before
the trial court at the revocation hearing.  “It is the established
rule in this jurisdiction not to consider questions that have not been raised
below.”  State v. Welch, 136 Vt. 442, 444, 394
A.2d 1115, 1116 (1978).  We have previously held that this policy
applies in the context of probation hearings, “even when the defendant asserts
a violation of constitutional rights.”  State v.
Gleason, 154 Vt. 205, 210-11, 576 A.2d 1246, 1249 (1990). 
Thus, the trial court’s ruling will stand unless the revocation of probation
constitutes plain error.  Id. at 211, 576 A.2d at
1249.  Plain
error exists “only in extraordinary situations where [the error]
is obvious and strikes at the heart of defendant’s constitutional rights or
results in a miscarriage of justice.”  State v. Bruno,
2012 VT 79, ¶ 33, 192 Vt. 515, 60 A.3d 610 (quoting State v. Koveos, 169 Vt. 62, 66-67, 732 A.2d 722, 725 (1999)).
¶ 10.         We conclude that on this record, the trial court’s
enforcement of the more restrictive of the two residence-related conditions did
not rise to the level of plain error.  Assuming without deciding that the
conditions at issue are objectively inconsistent and fail to give fair notice,
there is no evidence in the record that this defendant was confused about his
obligations or misled by the conditions.  This is not an extraordinary
situation where the error, if any, results in a miscarriage of justice.[*]
¶ 11.         Next,
defendant argues that that the condition requiring prior approval of his
relocation is unduly restrictive of his
liberty, and an overly broad delegation of authority to defendant’s probation
officer, given our holding in State v. Freeman, 2013 VT 25, ¶ 17.
 The State argues that defendant’s argument constitutes an impermissible
collateral challenge to the unappealed probation
condition that is barred by our decisions in Austin and Amidon.
¶ 12.         We
revisited Freeman recently in the case of State v. Campbell, 2015
VT 50, ¶¶ 25-27, ___ Vt. ___, ___ A.3d ___ and summarized its core
holding:  “[A] probation condition . . . that authorizes a
probation officer to control a probationer’s place of employment without any
guiding standards contained within the condition itself, may be acceptable
where the sentencing court makes sufficient findings of fact justifying use of
a probation officer’s substantial discretionary power to implement the
condition.”  Id. ¶ 27.  This
principle applies with equal force to conditions allowing a probation officer
to control a probationer’s residence.  Freeman,
2013 VT 25, ¶ 17.
¶ 13.         This
understanding of our holding in Freeman, and now Campbell,
informs our analysis of the State’s waiver argument.  Relying on Freeman,
defendant cannot argue that, on its face, the broad probation condition is
necessarily unconstitutional, amounting to plain error. Instead, he is
necessarily arguing that the broad condition was imposed without the
necessary findings to support such a condition.
¶ 14.         The
conditions in this case were imposed pursuant to a deferred-sentencing
agreement.  The trial court did not hold a trial on the merits of the
underlying charges, and did not have the benefit of evidence at a sentencing
hearing.  By entering into the plea agreement for a deferred sentence,
defendant gave up the chance to obtain factual findings from the trial court to
support the broad condition.  He then failed to appeal the ensuing
deferred sentence and conditions.  Defendant has essentially given up the
opportunity to challenge the adequacy of the trial court’s findings in support
of the otherwise overly broad condition.  Under these circumstances, we
conclude that the trial court did not err in declining to entertain defendant’s
challenge to the enforcement of the condition requiring pre-approval of his
residence.  A Freeman-style challenge to the adequacy of the court’s
findings in support of a probation condition cannot be raised by collateral
attack.  See Austin, 165 Vt. at 401-02, 685 A.2d at 1084 (declining
to allow challenge to probation condition in revocation hearing where condition “ ‘could have
been challenged on direct appeal of the judgment of conviction or on an attack
to the sentence through a [Vermont Rule of Criminal Procedure] 35
motion’ ” (emphasis omitted) (quoting United States v. Stine,
646 F.2d 839, 846 (3d Cir. 1981))).
¶ 15.         Finally,
defendant argues that because he promptly notified his probation officer of his
relocation, and because his residence with his mother was subsequently
approved, any violation of his probation conditions was de minimis
and could not support imposition of his sentence.
¶ 16.         As we
have said, “[d]ecisions regarding probation status
are entrusted to the sound discretion of the trial court.”  State v.
Nolen, 2012 VT 106, ¶ 7, 193 Vt. 116, 71 A.3d 1213.
 “Under 28 V.S.A. § 251, the 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.”  Id. (alteration and quotation
omitted).  A trial court’s ruling will not be set aside absent a
finding of abuse of discretion.  Id. (citing State v. Merchant,
173 Vt. 249, 254, 790 A.2d 386, 391 (2001)).  To prove an abuse of
discretion, a “defendant must show ‘that the court failed to exercise its sound
discretion or exercised it for clearly untenable reasons.’ ”  Id. (quoting State v. Daudelin,
151 Vt. 214, 217, 559 A.2d 668, 670 (1989)).
¶ 17.         The
State’s decision to pursue this particular violation even though defendant’s
mother promptly notified defendant’s probation officer of his move to her home,
and even though her home proved to be an acceptable residence for defendant,
had profound consequences for defendant.  But we cannot conclude that the
trial court abused its discretion in finding a violation of probation and
revoking defendant’s deferred sentence.  Here, after hearing testimony
from defendant’s probation officers, the court concluded that defendant had
been informed as to the conditions of his probation, that he signed the
conditions, and that he changed residences without the prior approval of his
probation officer in violation of the special condition.  The court went
on to find that the residence-approval condition had been imposed specifically because
defendant was convicted for a sex-related offense and that defendant could have
called his probation officer and received permission before moving.  Given
its reasoning, the trial court’s conclusion that defendant violated the
conditions of his deferred-sentence probation and its decision to impose
sentence were within its discretion.
Affirmed.
 
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 







[*]  We
do not reach the question of whether, if defendant had properly raised his
argument at the revocation hearing, he would prevail in his contention that the
disparate conditions regulating the same general subject matter create
confusion that undermines defendant’s fair notice of his obligations under the
probation order.



