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@vermont.gov 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.


                                          2020 VT 28

                                          No. 2018-240

State of Vermont                                               Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Addison Unit,
                                                               Criminal Division

Austin R. Burnett                                              September Term, 2019


Helen M. Toor, J.

David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua S. O’Hara, Appellate Defender, Montpelier, for
 Defendant-Appellant.


PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.),
         Specially Assigned


        ¶ 1.   ROBINSON, J. Defendant appeals the trial court’s decision that he violated a

condition of his probation. Defendant argues the State both failed to prove the conditions of his

probation and failed to prove that his conduct amounted to a violation. We conclude that the State

failed to prove that defendant’s conduct amounted to a violation of the probation condition (VOP)

and accordingly reverse.

        ¶ 2.   Defendant’s relevant underlying convictions were for sexual assault of a victim

under the age of sixteen (Docket No. 283-6-15) and sexual assault, no consent (Docket No. 284-

6-15). He pled guilty and the court sentenced him to concurrent sentences of four to six years,

suspended except for thirty-eight months, in No. 283, and five years, deferred, in No. 284. During
sentencing, the court stated, “You’ll be on probation until further order of the court with the sex-

offender special conditions as you have already signed, and also with the requirement to undergo

mental health evaluation.” The court also stated that defendant would be subject to certain

“standard” probation conditions.

        ¶ 3.     The court apparently generated one probation order in each docket, and the orders

were filed separately in the court’s corresponding files. Both orders impose eight standard

conditions on defendant. Neither is signed by defendant. In addition to the specified standard

conditions, the deferred-sentence probation order in No. 284 imposes “Sex Offender Special

Conditions,” although there is no record of any specific sex-offender conditions in the court file.

The partially-suspended-sentence probation order in No. 283 imposes “Sex Offender Special

Conditions of probation attached hereto.” This file does contain a signed list of sex-offender

conditions. One of those conditions provides, “You shall participate fully in the Vermont

Treatment Program for Sexual Abusers [VTPSA] during the course of your unsuspended sentence.

Failure to complete said program while incarcerated may result in a violation of your probation.”

        ¶ 4.     This appeal arises from defendant’s alleged violation of this probation condition.1

The State filed substantially identical complaints for violation of probation in both dockets.2 The

trial court heard them at the same time. The affidavit accompanying the State’s VOP complaint

alleges:

                  On 12/31/2017 I received information from Corrections Service
                 Specialist (CSS) Theresa Stone, with the [VTPSA] at the

        1
         In 2017, defendant pled guilty to a different violation of probation in No. 283. The court
changed defendant’s partially suspended sentence for the under-sixteen sexual assault to four to
five years, suspended except for forty-one months. The new probation order generated by the
court included the same standard conditions and referenced the sex-offender conditions. It is
unsigned by defendant. No new list of special sex-offender conditions was generated or signed at
resentencing. The 2017 VOP is not at issue in this appeal.
        2
            The State filed the VOP complaint in No. 283 in December 2017, and in No. 284 in April
2018.

                                                  2
               Nor[th]west Correctional Facility, that [defendant] was facing
               potential removal from the program because he had been convicted
               of a major disciplinary report for attempting to pick the lock on his
               cell door. On 12/13/2017 the VTPSA team evaluated the situation
               and determined these actions, in conjunction with other non-
               compliant behavior [defendant] had been exhibiting were directly
               risk related and resulted in [defendant’s] removal from the VTPSA
               programming.

                At this time it is unclear when and if [defendant] will be reaccepted
               into the VTPSA program.

       ¶ 5.    The parties entered the VOP hearing anticipating that defendant would admit to the

violation.3 At the hearing, the State represented that defendant was “kicked out” of the VTPSA

facility after “he picked a lock.” The court noted that the VOP complaint filed by the State also

listed “other non-compliant behavior,” and asked whether the defendant was planning to admit to

any other behavior. The State said that no other admission was required, and defendant’s attorney

stated that the other behavior was “older” and “I think the lock picking covers it.”

       ¶ 6.    However, the agreement between the parties broke down when the court expressed

doubt about whether picking a lock violated the identified condition. The trial judge began a

colloquy with the defendant, but interrupted herself before the defendant admitted to the conditions

or to a violation, stating: “The allegation here is that you were to—well, actually folks, I guess I

have a question as I’m reading this, since the condition was to fully participate.” The court

expressed doubt as to whether “picking a lock” amounted to a failure to ‘fully participate.’ ” The

State argued that the rules of VTPSA require compliance with security measures, and that

defendant failed to “follow the rules.” However, the court concluded, “I don’t think that I can say

that picking the lock is not participating. It might be breaking a rule, but it’s not exactly what we

think of as non-participation in the program.” The proceedings paused to allow the parties to

confer, after which defense counsel stated, “At this point, Your Honor, we do not have an


       3
          In fact, the entries in both dockets reflect that defendant did admit to the violation; this
ultimately proved to be incorrect.
                                                   3
admission.” The court hesitated to proceed with a hearing, but did so upon the State’s affirmation

that it had “some other evidence to present on some of the other issues, other than the lock picking.”

        ¶ 7.    The State first presented the testimony of a risk-intervention-services manager at

the Department of Corrections (DOC) who testified that defendant “was recently terminated in

December of ’17 for attempting to pick a cell lock on the unit.” He also noted that defendant “had

some concerning behavior,” including “cho[osing] not to follow redirections” during the

Workforce Readiness program, being suspended from the Community High School of Vermont,

stating that he was going to be “a dick to his case worker,” and disciplinary problems resulting in

termination of his employment at the facility’s kitchen. He testified that the programming,

including VTPSA, community high school, and workforce development, is now treated as “all one

giant program,” designed to “help offenders move back into the community.”

        ¶ 8.    The risk-intervention-services manager testified about several of the rules included

in the VTPSA Orientation Handbook that “these guys are advised of when they’re in the VTPSA

program.” The State did not offer the handbook into evidence, but the risk-intervention-services

manager testified that the “active rules of the VTPSA program” include the following: no physical

violence or threats of physical violence; no use of alcohol or drugs; no disobeying orders given by

treatment providers or facility staff; no sexual contact with others or propositioning others for

sexual contact; no unauthorized contact with, or possessing pictures of, any person that the

offender has sexually victimized; follow the DOC policy of not using or possessing materials that

feature nudity or sexually explicit pictures, drawings, or writing; participate actively; be respectful;

maintain good hygiene; get approval for computer use outside the offender’s treatment living unit;

follow television guidelines; possess and display only appropriate pictures; and get approval for

contact with minors.      The risk-intervention-services manager said that the statement about

defendant’s case worker violated the rule that participants must “be respectful,” and that



                                                   4
defendant’s going into his cell when he had been locked out of it would violate the rule not to

disobey orders.

        ¶ 9.     The State presented the testimony of two witnesses regarding the lock-picking

incident, and it became clear that defendant had picked the lock to enter, rather than exit, his cell

instead of waiting to be let in as instructed. First, a correctional officer testified that on the date of

the incident she was “doing a tour” of the unit. While she was checking other cells, defendant and

another inmate “insisted on getting into their cell.” She told them to wait, and when she returned

to them, the door had been opened. She testified that defendant told her he had unlocked the door

with a hairbrush because “he just felt like it.” On cross-examination, she testified that the door

“looks like a wooden door” and is not a barred or all-metal door. Second, the State called a facility

shift supervisor, who testified that he reviewed camera footage of the incident and that defendant

had in fact picked the lock. On cross examination, he testified that the doors are “like a car door.

You can open it from the inside, but you can’t open it from the outside.”4

        ¶ 10.    The State did not seek admission of the probation conditions themselves, and

neither called any witnesses who attested to reviewing the written probation conditions with

defendant nor offered any evidence that defendant had signed the written probation conditions or

the special sex-offender conditions incorporated into the probation conditions.

        ¶ 11.    At the conclusion of the hearing, the court determined that defendant failed to obey

the correctional officer’s order to “wait for her to come and unlock the door when she was ready.”

The court stated that “it wasn’t entirely clear that all of the requirements that we’ve heard about

work and employment were actually part of this program, as opposed to some other program, so I

don’t think that I can make a finding that failure to comply in those elements violated this

program.” However, the court did find “that he violated an order, [and] that there was a specific


        4
            The inmates shared a bathroom, so inmates had to be able to exit their cells without a
key.
                                                    5
condition of the program to follow orders.” Upon finding the probation violation, the court

revoked probation in No. 283, resulting in a sentence four to five years to serve. It also struck the

five-year deferred sentence in No. 284 and imposed the mandatory sentence of three years to life.

       ¶ 12.   On appeal, defendant argues: (1) the State failed to prove that defendant violated

the terms of his probation and deferred sentence, because he was expelled from VTPSA for reasons

unrelated to the program and the condition did not provide him notice that his conduct would

constitute a violation; (2) the State failed to meet its burden to prove that defendant received written

notice of the terms of defendant’s probation and deferred sentence, because it presented no

evidence as to the conditions; and (3) the State failed to prove defendant had any sex-offender

special conditions in connection with his deferred sentence (No. 284), because the court’s file

contains no record of any sex-offender conditions.

       ¶ 13.   Defendant preserved his arguments that his act of picking a lock to enter his room

did not violate the VTPSA condition, or that the condition did not provide him reasonable notice

that such conduct would amount to a probation violation. Accordingly, we will affirm in the face

of error only if the error is harmless.5 State v. Larkin, 2018 VT 16, ¶ 21, 206 Vt. 535, 183 A.3d

589. The State has the burden of establishing by a preponderance of the evidence that defendant

violated a term of his probation. State v. Decoteau, 2007 VT 94, ¶ 8, 182 Vt. 433, 940 A.2d 661.

“We review the trial court’s determination that defendant violated his probation in two steps.”

State v. Bostwick, 2014 VT 97, ¶ 11, 197 Vt. 345, 103 A.3d 476. We will uphold the court’s

factual findings if supported by credible evidence. Id. We will uphold the court’s “implicit legal

conclusion that the probationer’s actions violated his probationary terms” if it is reasonably




       5
          Because we reverse the revocation on the basis that the VTPSA condition did not provide
reasonable notice to defendant that his act of picking a lock to return to his room when he had been
instructed to wait would constitute a probation violation, we do not reach defendant’s alternate
arguments.
                                                  6
supported by the findings and is not an erroneous interpretation of the law. Id. Here, only the

legal conclusion is at issue.

       ¶ 14.   We conclude that the State failed to prove that defendant’s conduct—picking the

lock to return to his room after the corrections officer instructed him to wait—amounted to a

violation of the condition requiring him to “participate fully in the Vermont Treatment Program

for Sexual Abusers.” We reach this conclusion because, when the State seeks to revoke probation

on account of a probationer’s expulsion from court-ordered programming, the court must

independently assess whether the conduct that gave rise to the expulsion amounts to a violation of

the probation condition. State v. Stuart, 2018 VT 81, ¶ 20, 208 Vt. 127, 196 A.23d 306. In making

that determination, the court must construe probation conditions such that they give fair notice to

a probationer of what conduct will give rise to revocation. Id. ¶ 13 n.5. In this case, the condition

requiring defendant to “participate fully” in and complete the VTPSA program did not give him

notice that the conduct that triggered the VOP complaint violated the terms of his probation. For

that reason, the trial court erred in concluding that defendant had violated the condition and in

revoking his probation. We expand on these considerations below.

       ¶ 15.   We have repeatedly held that “ ‘[w]hen determining the merits of a probation

violation based on a probationer’s expulsion from a court-ordered treatment program, the ultimate

question for the court is whether the probationer participated satisfactorily in the program.’ ” Id.

¶ 20 (quoting State v. Coyle, 2005 VT 58, ¶ 9, 178 Vt. 580, 878 A.2d 1062 (mem.)). “The court

must look beyond the fact of a probationer’s termination from a program to the reasons for that

termination because the court, not the treatment provider or probation officer, is the ultimate judge

of whether the defendant has violated a probation condition.” Id. (citing State v. Masse, 164 Vt.

630, 631-32, 674 A.2d 1253, 1255-56 (1995) (mem.)); see also State v. Cavett, 2015 VT 91, ¶ 15,

199 Vt. 546, 126 A.3d 1287 (holding that court must assess basis for defendant’s termination from

program to determine whether it amounted to violation of probation condition).

                                                 7
        ¶ 16.    In meeting its burden to prove a VOP, the State must establish “that there has been

a ‘violation’ of the express conditions of probation, or of a condition so clearly implied that a

probationer, in fairness, can be said to have notice of it.” State v. Austin, 165 Vt. 389, 398, 685

A.2d 1076, 1082 (1996) (quoting Resper v. United States, 527 A.2d 1257, 1260 (D.C. 1987)); see

also State v. Bryan, 2016 VT 16, ¶ 15, 201 Vt. 298, 142 A.3d 204 (explaining that to make out

case of VOP, “the State must establish by a preponderance of the evidence that the defendant

violated an ‘express’ condition of probation” that “gives fair notice as to what acts may constitute

a violation” (quotation omitted)). “Fair notice requires that probation conditions are well-defined

and transparent.” Stuart, 2018 VT 81, ¶ 13 n.5.

        ¶ 17.    For that reason, we have reversed trial court decisions revoking probation where

the condition purportedly violated did not provide the defendant clear enough notice that the

conduct giving rise to the VOP complaint would constitute a violation. See, e.g., State v. Galanes,

2015 VT 80, ¶ 24, 199 Vt. 456, 124 A.3d 800 (holding that condition requiring probationer to

inform probation officer of name and contact information of any person with whom probationer

was planning to begin sexual relationship did not provide sufficiently clear notice that unplanned

sexual encounter with housekeeper would constitute violation); State v. Blaise, 2012 VT 2, ¶ 1,

191 Vt. 565, 38 A.3d 1167 (mem.) (reversing determination that defendant violated three

conditions of probation when neither conditions nor contract with probation officer gave defendant

sufficient notice that conduct for which he was sanctioned would constitute violation); State v.

Sanville, 2011 Vt 34, ¶ 10, 189 Vt. 626, 22 A.3d 450 (mem.) (reversing VOP determination where

condition prohibiting “violent or threatening behavior” did not give defendant notice that

expressing his displeasure at perceived injustice in “mouthy and obnoxious” way would amount

to violation).

        ¶ 18.    In this case, the requirement that defendant “participate fully” in VTPSA did not

give him notice that his conduct here would violate his conditions of probation. Again, the

                                                  8
condition at issue provides: “You shall participate fully in the Vermont Treatment Program for

Sexual Abusers during the course of your unsuspended sentence. Failure to complete said program

while incarcerated may result in a violation of your probation.” The State did not present evidence

concerning defendant’s attendance, engagement, or progress in VTPSA itself. It did not present

evidence concerning his interactions with staff of the treatment program. Instead, the State proved

that defendant picked a lock to enter a room after a corrections officer instructed him to wait. The

State’s case rests on reasoning that: 1) defendant was required to “participate fully” in and

complete the VTPSA program; 2) in order to “participate fully” in and complete the VTPSA

program defendant is required to comply with all of the rules of the program; 3) one of the rules

of the program is that participants comply with orders from treatment providers or facility staff;

and 4) defendant’s act of picking the lock to enter his room after being instructed to wait by a

correctional officer violated this program rule. The trial court’s initial skepticism that defendant’s

insubordinate act could be reasonably understood as a violation of the probation condition

requiring him to complete VTPSA was well founded. Based on the State’s logic, failure to

maintain good hygiene or to follow television guidelines—both apparently requirements of

VTPSA—would be probation violations as well.

       ¶ 19.   We do not mean to suggest that violating a rule of VTPSA that regulates conduct

outside of the treatment sessions themselves cannot constitute a violation of the condition requiring

full participation in VTPSA. Many of the rules of VTPSA—such as rules prohibiting sexual

contact with others, or propositioning others for sexual contact, as well as unauthorized contact

with or possession of pictures of a person the participant has sexually victimized—are clearly

designed to advance the core objectives of VTPSA. Evidence that defendant was on notice of

these program rules would likely suffice to establish defendant’s notice that violation of the rules

would constitute a probation violation; that compliance with such rules is part and parcel of the

probation condition requiring participation in and completion of the program is “so clearly implied

                                                  9
that [defendant], in fairness, can be said to have notice of it.” Austin, 165 Vt. at 398 (quotation

omitted).

       ¶ 20.   Likewise, when the State presents evidence that a probationer has received clear

notice that a program rule governing behavior throughout the facility is intrinsic to participation

in the program and may lead to termination, the probationer’s violation of that rule can constitute

a violation of the probation condition requiring participation in the programming. In State v.

Cavett we implicitly held that a defendant could be found in violation of a probation condition

requiring him to participate fully in and complete VTPSA on the basis of throwing a crumpled

paper toward a correctional officer who was investigating disciplinary reports lodged against the

defendant. 2015 VT 91. In that case, the court heard testimony that the defendant had attended a

brief VTPSA orientation where he went over the VTPSA Treatment Agreement and received the

VTPSA Orientation Handbook. Id. ¶ 3. The rules in the handbook described a “cardinal rule”

against “physical violence or threats of physical violence” and cautioned that breaking this cardinal

rule “may result in termination from the program.” Id. The defendant had signed a statement

attesting that he had read the VTPSA Orientation Handbook and agreed to follow all the rules and

regulations in the handbook. Id. We remanded for the trial court to determine whether defendant’s

actions violated a “cardinal” rule of the program, and to exercise its discretion as to whether to

respond to a violation by revoking the defendant’s probation. Id. ¶ 19.

       ¶ 21.   In this case, the State presented no evidence that the disobedience rule was a

“cardinal rule” of VTPSA, and its evidence that defendant was even advised of the rules is thin.

In contrast to evidence that defendant was informed of a “cardinal rule” of VTPSA against violence

or threats that could lead to termination from the program, the rule at issue here is only one of a

litany of rules—including rules requiring participants to maintain good hygiene and follow

television guidelines. The State offered no evidence that the rule was highlighted in a way that

provided defendant notice that any violation of the rule would be tantamount to violating

                                                 10
conditions of probation. Moreover, the State did not offer the handbook into evidence or establish

that defendant had an opportunity to read its requirements. The only evidence in the record from

which the court could infer that defendant was advised of the program rules was the

acknowledgment of a State witness, on cross-examination, that “these guys are advised of” the

rules when they are in VTPSA.

       ¶ 22.   On this record, we cannot conclude that it is “clearly implied” in the probation

condition requiring defendant to complete VTPSA that his act of picking the lock and entering a

room he was otherwise authorized to enter when he had been told to wait would be a probation

violation. This might be a different case if defendant had picked a lock to exit his room at a time

when he was supposed to be confined, or if he had picked a lock to enter another inmate’s room

without authorization. But the State seems to argue that any act of insubordination, because it

violates the VTPSA rules, constitutes a probation violation. We emphasize that we do not endorse

defendant’s insubordinate conduct. The question of whether he may properly be disciplined under

applicable prison rules is not before us. Nor is the question of whether defendant was properly

terminated from the VTPSA program. But if the State seeks a probation condition pursuant to

which any act of disobedience to facility staff amounts to a violation of probation, it must do so

expressly. If a court imposes such a condition, then defendant will be on notice of the court’s

expectations. Alternatively, to the extent the State rests its violation complaint on a probation

condition requiring the defendant to complete a program, the State must show that the defendant

was on reasonable notice of express requirements of the program clearly identifying the conduct

that could lead to termination.

       ¶ 23.   The stakes are high for probationers facing VOP proceedings, which is why we

must ensure that they are subject to VOP findings, and the possibility of probation revocation, only

when their conduct violates clear probation conditions. In this case, as a result of entering his cell

when a corrections officer told him to wait, defendant faces imposition of a sentence of five years

                                                 11
to life. On this record, the State has not shown that defendant violated a probation condition of

which he had clear notice.

       Reversed.

                                              FOR THE COURT:



                                              Associate Justice




                                               12
