2014 VT 97


State v. Bostwick (2013-013)
 
2014 VT 97
 
[Filed 01-Aug-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 97

 

No. 2013-013

 

State of Vermont 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington Unit,


 


Criminal Division


 


 


Patrick Bostwick


May Term, 2014


 


 


 


 


Thomas
  A. Zonay, J.


 

William H. Sorrell, Attorney General, and David McLean,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Anna Saxman,
Deputy Defender General,
  Montpelier, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.
 
 
¶
1.            
DOOLEY, J.   Defendant appeals from a court order finding
him in violation of his conditions of probation.  We hold that his conduct was
not inconsistent with the plain language of his probation conditions, and
reverse.
¶
2.            
Defendant was convicted of lewd and lascivious conduct with a
child, 13 V.S.A. § 2602, and sentenced to three to fifteen years, all
suspended but six months.  Defendant’s probation order contained the following
“special sex offender conditions”:  “You will not live in an apartment complex
that allows children, in neighborhoods with large numbers of children, or in
neighborhoods near parks, schools, playgrounds, etc, unless directed otherwise
by your Supervising Officer”; and “You shall reside where your Supervising
Officer directs.  You shall not change your residence without the prior written
permission of your Supervising Officer.”  
¶
3.            
While defendant was still incarcerated, the State filed a
probation violation complaint, claiming that defendant had violated the
condition stating: “You shall reside where your Supervising Officer directs.” 
The State claimed that defendant had violated this condition because he did not
submit a residence for his probation officer’s approval prior to his release
and therefore he would be homeless upon his release.  The court dismissed the
complaint for “impossibility of performance.”  During the hearing, the court explained:
I’ll
dismiss it without prejudice . . . the sense being that they can
renew it if after a reasonable time, [defendant] shows no effort, for example,
to get housing in an appropriate place, . . . or can’t get it
because of some fault on his part, then certainly they’re free to refile it if
they think they can make out a prima facie showing of a violation based on not
living where he’s supposed to live. . . .  I don’t think that
this is a violation because he hasn’t had an opportunity to try to find a
place.[1] 

 
¶
4.            
Defendant was subsequently released and, with approval from his
probation officer, resided at a few temporary addresses in succession.  In
early July 2012, defendant moved to the Budget Inn in Barre, another location
that his probation officer had approved as only temporary because it was “near
children.”  The probation officer told defendant he needed to look for housing
“daily.”  The probation officer also told defendant that “he had 8/1/2012 as a
deadline to show housing search efforts—a genuine housing search effort.”  
¶
5.            
Defendant received a list of available apartments from Community
Action, supplemented by listings his wife found for him.  Defendant’s income
was limited to a Social Security disability check of $720 per month.  Defendant
could not use the internet to look for apartments directly because a condition
of his release as a sex offender prevented him from having access to the
internet.  Defendant was on a twenty-four hour curfew, other than visiting
prospective apartments and a weekly trip for groceries.  He kept a log of calls
he made to prospective landlords.  As required, defendant announced to every
person he called that he was on probation for lewd and lascivious conduct with
a child.  
¶
6.            
Defendant’s log indicates that he made calls or had his wife
email approximately seventy times looking for housing between June 12 and
August 6, 2012.  He testified that his inquiries were denied for a variety of
reasons, including that the buildings had no vacancies, that the landlords did
not want to rent to a convicted sex offender, or the apartments were too
expensive.  On July 23, 2012, he found one apartment that he might have rented,
but his probation officer did not approve it for him because it was too close
to a school.  
¶
7.            
 In its decision revoking defendant’s probation, the trial court
noted that defendant’s call log “shows between June 26th and July 20th—except
for a single telephone call made on July 10th—the Defendant did not make any
housing search.  He also made no search from July 28th through August 3, 2012. 
As of August 1, 2012, the Defendant had not obtained approved housing.”  
¶
8.            
As the trial court noted, the State must show a probation
violation by a preponderance of the evidence, and defendant must have received
fair notice of the condition he allegedly violated.  State v. Gleason,
154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990).  The trial court further noted
that, after the initial proof of violation, the burden shifts to the defendant
to show that the “failure to comply was not willful but rather resulted from
factors beyond his control and through no fault of his own.”  State v.
Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996).  
¶
9.            
In its analysis, the court found that defendant “certainly should
have known that abandoning his efforts to find housing for several
days . . . was not in compliance with his obligations under the
terms of his probation.”  The court determined that finding an approved
residence was “an important component of the defendant’s sex offender
treatment, as well as necessary for public protection.”  Further, “defendant’s
failure to have approved housing, after being afforded a meaningful opportunity
to do so following his release from incarceration, undermines the probationary
goal of protecting society from the defendant.”  The court concluded that
defendant had violated two terms of his probation.  First, he violated the
condition stating:  “You shall reside where your Supervising Officer directs. 
You shall not change your residence without the prior written permission of
your Supervising Officer.”  Next, because the Budget Inn was close to children,
he also violated the condition stating that:  “You will not live in an
apartment complex that allows children, in neighborhoods with large numbers of
children, or in neighborhoods near parks, schools, playgrounds, etc, unless
directed otherwise by your Supervising Officer.”  
¶
10.        
Defendant argues that the requirements that he make housing
search calls every day and find housing by a certain date were not part of his
court-ordered probation conditions.  Therefore, defendant claims that his
probation officer lacked authority to impose those requirements on him and that
defendant had no notice of the consequences of failing to fulfill those requirements. 
Defendant also argues that the condition that he not live in “a neighborhood
near parks, schools, playground, etc” is overbroad and delegates too much
authority to his probation officer.  Defendant further argues that he had no
meaningful opportunity to find housing, that it was in fact impossible for him
to find housing, and that his failure to find housing was not willful.  Lastly,
defendant argues that his probation should not have been revoked because there
was no evidence that his lack of housing interfered with the ability of the
Department of Corrections (DOC) to supervise him or endangered the public, and
that revoking his probation over this issue was tantamount to punishing him for
being poor.  Because we agree with defendant that he did not violate any of his
court-ordered conditions of release, we do not reach the remainder of his
arguments.
¶
11.        
We review the trial court’s determination that defendant violated
his probation in two steps.  First, we examine the trial court’s factual
findings and uphold them “if supported by credible evidence.”  State v.
Sanville, 2011 VT 34, ¶ 7, 189 Vt. 626, 22 A.3d 450 (mem.).  Second,
we examine the trial court’s “implicit legal conclusion that the probationer’s
actions violated his probationary terms.”  Id.  We uphold that legal
conclusion if it is “reasonably supported by the findings and does not
constitute an erroneous interpretation of the law.”  Id.  The trial
court’s factual findings here are undisputed, so we analyze only the court’s
legal conclusions.
¶
12.        
The trial court here found violations of two probation
conditions.  We conclude that neither violation was justified by the language
of the probation condition at issue.  To the contrary, “the probation officer
crossed the line between condition interpretation and modification” in imposing
the new requirements regarding the rate of call frequency and the deadline by
which defendant needed to find housing or be found in violation.  State v.
Rivers, 2005 VT 65, ¶ 19, 178 Vt. 180, 878 A.2d 1070.  
¶
13.        
In Rivers, the defendant had a probation condition which
prohibited him from having contact with children under the age of sixteen
without prior written approval from his probation officer.  The trial court
found the defendant to be in violation of that condition because he went to the
Champlain Valley Fair and stood near children in the lines for rides.  There
was no evidence that the defendant touched, spoke to, or stalked any children. 
The defendant had previously been warned by his probation officer “that attendance
at the fair would place him in contact with children, and that he could not
have that contact unless he was supervised by an approved adult.”  Id.
¶ 14.  The trial court accepted the probation officer’s warning to the defendant
as fair notice that going to the fair would violate the defendant’s probation
condition.  
¶
14.        
We found that the problem with the trial court’s reasoning was
that it gave “the probation officer authority to determine which public places
[the] defendant may frequent without any judicially-imposed standards to
restrain her authority. . . .  [T]his results in an improper
delegation of the court’s power to impose probation conditions.”  Id.
(citing State v. Moses, 159 Vt. 294, 300, 618 A.2d 478, 481-82 (1992)). 
We noted that the courts retain exclusive power to modify probation conditions under
28 V.S.A. § 253(a).  Rivers, 2005 VT 65, ¶ 15; see also Moses,
159 Vt. at 301, 618 A.2d at 482 (“Such [a contrary] approach depends for
fairness on the probationer coming forward to challenge decisions of a person
who has a great deal of power over her life.  To avoid these consequences, the
Legislature placed the power to impose probation conditions on the
court . . . .”).  Before being subject to any modification
to a probation condition, a defendant must have a reasonable opportunity to
challenge that modification.  28 V.S.A. § 253(b).  We concluded that
the probation officer’s application of the probation condition—that the
defendant could not attend the fair unsupervised—was not “evident” from the
plain language of the probation condition prohibiting contact with children.  Rivers,
2005 VT 62, ¶ 16.  We found that the probation officer’s interpretation
materially and impermissibly changed the condition from a contact-based
condition to a location-based one.  Id. ¶ 19.  We therefore
reversed the trial court’s decision finding that the defendant violated his
probation condition.  Id.  
¶
15.        
As noted above, the case at issue here involves two different
probation conditions.  We find that our analysis in Rivers properly
disposes of both, but we address and reverse the trial court’s conclusions
regarding each condition separately.
¶
16.        
First we address the trial court’s conclusion that defendant
violated the condition reading “You shall reside where your Supervising Officer
directs.  You shall not change your residence without the prior written
permission of your Supervising Officer”[2]
because defendant did not find permanent, approved housing by August 1 and
because there were periods of time in which defendant did not call any
landlords.  
¶
17.        
As in Rivers, the plain language of the probation
condition simply does not support this conclusion.  The second sentence of the
condition was not violated because defendant indubitably did not change his
residence without written permission.  The first sentence of the condition—requiring
defendant to reside where his supervising officer directed—likewise was not
violated.  Defendant resided exactly where his supervising officer directed, at
the Budget Inn.
¶
18.        
The State points out that the probation officer’s approval of the
Budget Inn was only temporary.  The State therefore argues that the officer’s
imposition of a deadline on the Budget Inn residence was simply a means of
implementing the probation condition, not interpreting it.  The State contends
that this case is therefore more like State v. Peck, 149 Vt. 617, 547
A.2d 1329 (1988).  In Peck, the defendant was required by a probation
condition to “complete mental health counseling to the full satisfaction of his
probation officer.”  Id. at 618, 547 A.2d at 1330.  At the direction of
his probation officer, he enrolled in a sexual offender’s counseling group, in
which admitting to a sex offense was mandatory.  The defendant refused to admit
his offense and was eventually terminated from the group, at which time he was
found in violation of his conditions of probation.  We upheld the violation
over the defendant’s contention that he lacked notice that his conduct would
constitute a probation violation.  Id. at 620, 547 A.2d at 1331.  
¶
19.        
We do not agree that this case is like Peck.  In Peck,
the probation officer had the authority to oversee the completion of mental
health counseling; mental health counseling was not completed.  In this case,
the State characterizes the condition at issue as “a general probation
condition requiring that [defendant] find a residence approved by his probation
officer.”  This is a mischaracterization of the condition.  The probation
condition at issue here gives the officer the authority only to direct defendant
to live somewhere.  If the officer has given defendant no direction as to where
he should live, or gave and then somehow withdrew his direction, defendant
cannot be said to be violating his probation officer’s nonexistent direction.[3]
¶
20.        
The trial court considered and rejected as “unreasonable” this
plain-meaning interpretation of the probation condition in its decision
imposing a sentence for the alleged violations.  The court concluded that it
was “more reasonable to interpret this special condition as not requiring DOC
to pick a specific residence for Defendant, but rather for DOC to set out
certain guidelines within which a probationer—on his or her own initiative—is
to locate housing and subsequently seek approval from DOC.”  
¶
21.        
The trial court’s preferred interpretation may be a more accurate
representation of what commonly happens to probationers with residence
restrictions, but it is not what defendant’s probation condition says.  “Reside
where your Supervising Officer directs” does not support a probation officer
imposing requirements of either housing search call frequency[4]
or a final, hard deadline for finding permanent housing, punishable by probation
revocation.  It does not even say that defendant needs a permanent residence. 
Like the probation officer’s attempt to change a condition from contact-based
to location-based in Rivers, these are the kinds of modifications to conditions
that defendants are entitled to contest.  28 V.S.A. § 253(b).
¶
22.        
We also differ with the trial court on the responsibility of the
DOC.  The condition could have been drafted to require the probation officer to
give approval to a residence selected by the probationer.  Indeed, the failure
to phrase the condition in that way is part of the reason that we have found it
invalid when properly challenged.  See supra n.2.  The plain language of
this condition gave the selection power to the probation officer, not the
probationer.  The probation officer gave very limited help to defendant to find
a residence when he was released from jail.  Thereafter, he gave no help and
acted only to supervise and judge defendant’s search for housing.  We cannot
conclude that the probation officer’s method of implementation was consistent
with the language of the condition.
¶
23.        
Next, we address the trial court’s conclusion that defendant’s
living at the Budget Inn violated the condition stating: “You will not live in
an apartment complex that allows children, in neighborhoods with large numbers
of children, or in neighborhoods near parks, schools, playgrounds, etc, unless
otherwise directed by your Supervising Officer.”  The court found that the
probation officer had allowed defendant to live temporarily at the Budget Inn
as a direction made notwithstanding the location requirements.  It found that the
Budget Inn was in “proximity to children” and therefore violated this
condition.  The court did not explain this finding further, but the only evidence
it heard on the issue was the probation officer’s testimony that “[t]he Budget
motel is directly in front of the police station with a playground that’s
available to children’s use.”  
¶
24.        
It is impossible to separate out this condition from the first
one discussed above because of the way the probation officer supervised
defendant’s conduct.  The probation officer directed defendant to live at the
Budget Inn despite its proximity to a playground and withdrew that direction
only because of defendant’s alleged noncompliance with the first condition.  As
we have found above, the officer’s implementation of the first condition was
not in compliance with its language.  Under these circumstances, we reverse the
trial court’s conclusion that defendant violated this second condition.  We do
not reach defendant’s argument that the condition is also overbroad and unduly restrictive.[5]
 We also do not reach defendant’s argument that defendant could not comply with
this condition and that his probation cannot be revoked in that circumstance.
Reversed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
¶
25.        
REIBER, C.J., concurring.   I write separately today, not
because I disagree with the outcome in this particular case, but rather to
express my concern that the direction taken by our recent decisions in
violation-of-probation (VOP) cases hampers trial judges’ discretion in constructing
appropriate probation conditions and determining when those conditions have
been violated.  This Court has necessarily focused on the due process rights of
the defendant and the specificity of the probation conditions imposed at
sentencing.  While our decisions are meant to ensure that notice of prohibited
conduct is communicated to defendants, the trend of those decisions in
insisting on more detailed conditions has created an incentive for prosecutors
and the Department of Corrections (DOC) to craft increasingly specific and
lengthy lists of conditions in an effort to address every contingency to
deflect later challenges by defendants at VOP hearings.  Concurrently, defense
attorneys are not disposed to argue about conditions at sentencing for fear
that they might compromise their position for lesser or no jail time.  As a
result, our decisions on appeals from VOP proceedings focus on parsing the
language of the sentencing conditions imposed.  This, in turn, results in
decreased discretion in the trial court, both at sentencing and at violation,
and presents a separation-of-powers problem.  Indeed, over time, our decisions
have inadvertently eroded the authority of the trial courts to use their
discretion and apply common sense and judgment at sentencing, effectively
transferring that discretion to the executive branch.
¶ 26.        
Our jurisprudence concerning the terms of probation conditions
has elevated the need for courts to “fashion [conditions] in a precise
manner.”  State v. Rivers, 2005 VT 65, ¶ 19, 178 Vt. 180, 878 A.2d
1070.  “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.”  State v. Hemingway, 2014 VT 48, ¶ 16, ___ Vt. ___, ___ A.3d
___.  We recognized in Rivers that “[p]robation conditions must retain some degree of
flexibility, and probation officers may be granted a limited amount of
discretion in implementing conditions—especially conditions designed to address
situations that the court cannot anticipate.”  2005 VT 65, ¶ 15.  However,
we also highlighted that “ ‘the
conditions must be
sufficiently precise so that probation officers do not in fact establish
them.’ ”  Id. (quoting American Bar Association Standards for Criminal
Justice 2d § 18-2.3(c)(ii)).  This specificity requirement has constitutional
dimensions because “[d]ue process requires that the defendant receive fair
notice as to what acts may constitute a violation of his probation, thereby
subjecting him to loss of liberty.”  State v. Gleason, 154 Vt. 205, 216,
576 A.2d 1246, 1252 (1990) (quotation omitted).  Further, we have couched this
principle of specificity in the trial court’s statutory authority to impose
conditions under 28 V.S.A. § 252, and the consequent impermissibility of
delegation of this authority to probation officers.  See Hemingway, 2014
VT 48, ¶ 15 (“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’ ”);  State v. Moses, 159 Vt.
294, 300-01, 618 A.2d 478, 482 (1992) (stating that “[i]t is improper for the
court to delegate the power to impose probation conditions to a probation
officer,” and noting that Legislature “placed the power to impose probation
conditions on the court, and not on the corrections department and its
employees”). 
¶ 27.        
It is important to
keep in mind that requiring courts to impose specific probation conditions is also intended to preserve the integrity of the judicial
branch, including its authority over probationary sentences.  Although
sentencing is not “solely a judicial function derived from constitutional
mandates,” State v. Saari, 152 Vt. 510, 518, 568 A.2d 344, 350
(1989), and judicial discretion may be curbed in certain instances, see id.
at 519, 568 A.2d at 350, the Legislature has specifically authorized the courts
to impose probationary sentences and provided guidance for the imposition of
those sentences.  See 28 V.S.A. § 252; see also Rivers, 2005 VT 65,
¶ 19 (reversing trial court’s finding of probation violation because probation
officer crossed line between enforcement and modification of probation, and
authority to craft conditions was thus impermissibly delegated to probation
officer).
¶ 28.        
Despite the importance of these goals—due process notice
requirements, the fulfillment of statutory objectives, and separation of
powers—they may not always be furthered by the chosen means—precision and
specificity in the articulation of conditions at sentencing.  Indeed, if taken
too strictly, the means employed may actually undermine these ends.  The
primary benefit of a more flexible interpretative scheme is that it allows the
trial court, on a petition claiming that a respondent violated a probation condition,
to apply the condition to novel situations that were unforeseen, even
unforeseeable, at the time the condition was imposed.  See Rivers, 2005
VT 65, ¶ 15.  Such indeterminacy is an inherent part of complex human
social life, and cannot be avoided by mandating that courts and corrections
officers anticipate every possible behavior or the shifting social, political,
or economic contexts that may affect those behaviors.  For this reason, in
overturning the probation violation in State v. Austin, we did not mean
to “cast doubt upon
the trial court’s role in evaluating a probationer’s” compliance with the
condition at issue, but rather “adhere[d] to our belief that a probation agreement
is not to be treated
as a strait-jacket that defies common sense.”  165 Vt. 389, 400, 685 A.2d 1076,
1083 (1996) (quotations omitted).
¶
29.        
A rule that calls for an overly literal interpretation of
probation conditions, and that leaves little room for discretion by probation
officers and the trial court for interpreting and applying those conditions,
creates an incentive for prosecutors and probation officers at the outset to
fashion wordy, complex, and specific conditions that regulate ever-broader
aspects of defendants’ lives in ever-more stringent ways.  These conditions may
be designed not merely to “reasonably assure that the offender will lead a law-abiding
life,” as required by 28 V.S.A. § 252, but also to limit later challenges
by defendants claiming that they did not violate the precise language of the
condition.  That this incentive is already in play is evidenced by the
expansion of conditions in Vermont in recent years, in terms of their
increasing number, complexity, and the use of specialized conditions for
particular offenses.
¶
30.        
This trend is problematic.  First, though the due process notice
requirement is often seen as procedural—without consideration of the substance
of the offense or violation charged—procedural due process is fundamentally rooted
in substantive rights, including a respect for liberty and a suspicion of
arbitrary government power.  Daniels v. Williams, 474 U.S. 327, 331 (1986) (“[B]y
barring certain government actions regardless of the fairness of the procedures
used to implement them, . . . [the Fifth Amendment Due Process Clause] serves
to prevent governmental power from being used for purposes of oppression.” (quotation omitted)); Hurtado
v. California, 110 U.S. 516, 527 (1884) (explaining that Due Process Clause
was “intended to secure the individual from the arbitrary exercise of the powers
of government” (quotation omitted)).  Where applications of procedural
due process contribute to the proliferation of substantive restrictions by the
other branches of government to evade these procedural protections, its use has
strayed from its underlying purpose.
¶
31.        
Second, although the majority here, in line with our prior cases,
grounds application of the specificity requirement in the trial court’s
authority to establish conditions, the effect of its decision may, ironically,
be just the opposite.  DOC employees author many if not most of the probation
conditions, usually by suggesting a laundry list of standard conditions that
apply to all offenders and then adding a second list of specialized,
offense-specific conditions.  In the vast majority of cases, these conditions
are accepted by defendants and incorporated in a signed plea agreement—a
contract between the State and the defendant—before they are reviewed by a
judge.  Alternatively, they may be imposed by a judge in the first instance as
part of a suspended sentence.  28 V.S.A. § 205(a)(1).  
¶
32.        
At sentencing, the court’s role is to ensure that the conditions
are applicable to the particular defendant, tailoring the conditions to the defendant’s
situation.  28 V.S.A. § 252(b)(18) (“The Court shall not impose a
condition prohibiting the offender from engaging in any legal behavior unless
the condition is reasonably related to the offender’s rehabilitation or
necessary to reduce risk to public safety.”); see also State v. Whitchurch,
155 Vt. 134, 137, 577 A.2d 690, 692 (1990) (quoting
American Bar Association, Standards for Criminal
Justice 2d § 18-2.3(e) for proposition that “conditions imposed by the court
should be reasonably related to the purposes of sentencing, including the goal
of rehabilitation, and should not be unduly restrictive of the probationer’s
liberty or autonomy”).  But there are practical limitations on the court’s
ability to do so.  The court has limited information, and relies
heavily on the recommendations and expertise of the prosecutor and the
probation officer.  It is unlikely that the probation conditions will be
rigorously tested through the adversarial process at the sentencing stage,
because defense attorneys often, as a tactical matter, focus on arguing for a
suspended sentence for their client instead of jail time.  Moreover, in cases
where defendants have signed a plea agreement, the court is more likely to
abide by the voluntary contract between the State and defendant than to hold an
evidentiary hearing.[6] 
This confluence of factors has resulted in a situation where at sentencing the
adversarial process is at its nadir.  Thus the courts’ duties are greatest at
the time when they are most difficult to fulfill.   
¶
33.        
 In this case, while acknowledging defendant’s efforts to find
housing and the difficulties he faced, the VOP court addressed the problem in a
practical, common-sense manner, basing its conclusion on a balancing of factors
with concern for public safety.  Although ultimately we conclude that the
court’s finding of a violation was not justified by the plain language of the
conditions, the court’s thoughtful, discretionary approach is one that we
should encourage.
¶
34.        
The majority recognizes the practicality of the court’s approach,
stating that “[t]he trial court’s preferred interpretation may be a more
accurate representation of what commonly happens to probationers with residence
restrictions,” but holds that this is “not what defendant’s probation condition
says.”  Ante, ¶ 21.  According to the majority, the requirement to
“ ‘[r]eside where your Supervising Officer directs’ does not support a
probation officer imposing requirements of either housing search call frequency
or a final, hard deadline for finding permanent housing, punishable by
probation revocation.”  Ante, ¶ 21.   While it is true that the
condition does not itself impose the requirements used by the probation
officer, I am concerned that our holding will lead to more specific conditions
as to these requirements—the number and frequency of calls or a hard deadline
for housing. Such specificity reduces discretion at sentencing and transfers
greater authority to DOC.
¶
35.        
Just as specificity can protect defendants if they do not
technically violate the condition’s plain language, it can be equally
unforgiving if they do.  Our holding that probation officers cannot cross the
line between implementing and modifying conditions, see Rivers, 2005 VT
65, ¶ 19, should not be construed to require courts to abandon common
sense when interpreting probationary agreements.  Austin, 165 Vt. at 400, 685 A.2d at 1083 (stating
that probation agreement is “not to be treated as a strait-jacket that defies
common sense” (quotations omitted)).
¶ 36.        
The challenge here is to refrain from
elevating procedure over substance.  The understandable desire to bring
uniformity, determinacy, and predictability to probationary sentences must not
take precedence over the duty of judges to use their common sense and judgment
to do justice in individual cases.  The alternative, a rigidly determinate
sentencing scheme, has superficial appeal but ultimately creates the risk of
ceding the trial judges’ authority, even if inadvertently, to the executive
branch charged with enforcement.[7] 
For these reasons, I encourage trial courts to use their discretion in imposing
probation conditions or finding violations and urge this Court to avoid, if
possible, micromanaging the articulation of those conditions. 
¶ 37.        
I am authorized to state that Justice
Crawford joins this concurrence.

 


 


 


 


 


 


 


 


Chief Justice

 


[1]
 Defendant argues that the court modified the probation condition when it ruled
on the first revocation complaint, and that the modified condition should have
been applied by the trial court and should be applied by this Court.  In the
probation revocation decision on appeal, the court noted the initial decision
but applied the probation conditions as written.  Because of our disposition,
we do not consider whether a modification occurred.


[2]
 We struck down a virtually identical condition in Moses, 159 Vt. 294,
618 A.2d 478, and again, recently, in State v. Freeman, 2013 VT 25, 193
Vt. 454, 70 A.3d 1008.  In Moses, we concluded:
 
Rather than
fashioning a specific restriction relating to defendant’s choice of residence,
however, the court turned over to a probation officer the complete power to
determine defendant’s residence with no guiding standards.  Under this
condition, the probation officer can require defendant to live in a specific
place within or without the State of Vermont, for reasons unrelated to
rehabilitation or the prevention of future criminal offenses.
 
  . . . .
 
  Condition 18 goes
beyond implementation.  In effect, it gives open-ended authority to the
probation officer
to create any location-of-residence probation condition the officer deems
appropriate.  It is this type of wholesale delegation that other courts have
struck down. . . .  [T]his condition is unduly restrictive of
the probationer’s liberty and autonomy and is not fine-tuned to the specific
rehabilitative and preventative goals applicable to this case.  The
court is capable of creating more precise standards to guide the probation
officer in imposing restrictions on defendant’s residence.  Unlike
interpersonal contact, which is intimately connected with associational rights,
the changing of one’s residence is not an incident of daily life; there is no
reason why the court cannot anticipate the relevant issues and construct a
proper condition.  This is not an instance where the court must authorize a
probation officer to use substantial discretionary power to implement the
probation condition.
 
159 Vt. at 300-01, 618 A.2d at 481-82. 
We reiterated this holding, again with respect to the same condition, in Freeman,
2013 VT 25, ¶¶ 16-17.
 
            In this case,
defendant did not challenge the probation condition at the time of sentencing. 
The State argues that under State v. Austin, he therefore could not
challenge it collaterally at the time of the probation revocation proceeding.  165
Vt. 389, 402, 685 A.2d 1076, 1084 (1996).  We need not address whether Moses
and Freeman provide a separate basis for reversing the probation
revocation in this case because we reverse on the basis set forth above in the
text.


[3] 
This principle was nicely illustrated by defendant’s probation officer’s
testimony at the hearing on the merits of the violation.  When asked, “Was he
ever directed to live anywhere he didn’t then move?” she answered, “No.”  
 


[4] 
The trial court and the parties focus mainly on the August 1 deadline as the
more important of the probation officer’s newly imposed requirements.  Although
it does not matter to our analysis, we note in passing that the State’s brief
inadvertently highlights the absurdity of faulting defendant for not making at
least one call daily in his housing search by discussing whether
defendant averaged “slightly more” or “slightly less” than one call per day.  


[5] 
We also do not, of course, reach the question of whether defendant’s proximity
to the playground truly endangered the public as the trial court found it did,
despite the fact that the playground was attached to a police station.


[6] 
These difficulties are further compounded by our holding in Austin that
defendants may only bring facial challenges to conditions at sentencing or on
direct appeal, and may not raise such challenges for the first time during a
VOP hearing.  165 Vt. at 402, 685 A.2d at 1084.  As the majority notes,
practically the same condition at issue in this case was struck down by this
Court in Moses, 159 Vt. at 300-01, 618 A.2d at 482, and again in State
v. Freeman, 2013 VT 25, ¶¶ 16-17, 193 Vt. 454, 70 A.3d 1008.  Yet DOC
still proposed, and defendant is bound by, the condition because he did not
previously challenge it.  Under Austin, courts do not have the authority
during a VOP hearing to correct errors, even constitutional ones, in the
conditions that were imposed at sentencing.     


       [7] 
There are parallels with the Federal Sentencing Guidelines, which were
originally enacted to impose greater uniformity and certainty in sentencing in
response to the perception that unlimited judicial discretion was contributing
to unfairness in sentencing.  See generally, S. Breyer, The Federal
Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L. Rev. 1, 4-5 (1988) (explaining rationales
of “honesty in sentencing” and uniformity in Federal Sentencing Guidelines);
see also United States v. Booker, 543 U.S. 220, 253 (2005) (“Congress’
basic goal in passing the Sentencing Act was to move the sentencing system in
the direction of increased uniformity.”).  The Guidelines may have produced
greater uniformity and certainty in sentencing, but with a commensurate
reduction in judicial discretion at sentencing.  Because
the Guidelines are complex, rigid, and heavily fact-dependent, they had the
unintended consequence of encouraging prosecutors to be more proactive in
adjusting the charges to the desired sentence, thereby significantly
controlling sentencing determinations before the case would ever be heard
before a judge.  This led to a shift in
sentencing power from the judicial to the executive branch.  F. Bowman, III, The
Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1340 (2005).
 
In Booker,
the U.S. Supreme Court encouraged greater judicial discretion in sentencing by
making the Guidelines advisory—thereby permitting the sentencing judge to
tailor the sentence in light of other statutory factors—and by providing a more
deferential standard of review in case of departure from the applicable
Guideline range.  543 U.S. at 248-49.  Commentators have opined that the
ultimate effect of making the Guidelines advisory and providing for more
discretionary appellate review of sentences was to “br[ing]
to a halt the drive to shift the power to punish away from the judiciary and
put it in the hands of federal prosecutors.”  S. Klein & S. Thompson, DOJ’s
Attack on Federal Judicial “Leniency,” the Supreme Court’s Response, and the
Future of Criminal Sentencing, 44
Tulsa L. Rev. 519, 542 (2009).  This Court should take heed regarding the imposition and
interpretation of probation conditions.  The price of certainty at the outset
may be limitations on the judge’s discretion and consequent ability to do
justice in particular cases later on.


