Wednesday, January 25, 2012

Teen Challenges

State v. Blaise, 2012 VT 2 (mem.)

Today’s case is about probation, including the important lesson of how to not do what your probation officer tells you, but still convince the SCOV that you have not violated probation. 

Before we launch into the facts, it will help to have the following key legal rules in mind:

§  The State bears the initial burden of proving a violation of probation (VOP), and the standard is “preponderance of the evidence.”

§  If the State carries its burden, the defendant then gets a chance to prove that the violation was not willful, but resulted from factors beyond the defendant’s control.

§  The district court’s decision on a VOP is a mixed question of fact and law, which the SCOV therefore reviews under two different standards:  the factual determinations are accepted as long as they are supported by credible evidence; the legal conclusion will stand if it is supported by the evidence.

§  Conditions of probation imposed by a probation officer need not be in writing.

§  Probation contracts are treated as any other contracts and subject to the “normal rules of contract construction.”

§  Given that probation revocations involve liberty, there are also due process requirements involved that don’t play a role in your normal contract case—specifically, “due process requires that a defendant know “what conduct is forbidden before the initiation of a probation revocation proceeding.”

Our story begins in May 2007, when Defendant pled guilty to a few things in Grand Isle District Court—most involving a motor vehicle and one count of violating probation (unfortunately, we do not get to learn what crimes had given rise to this earlier probation).  For his guilty plea, Defendant was able to avoid imprisonment and instead received a suspended sentence of 2–4 ½ years, with probation (yes, probation again, despite the fact that he was already pleading guilty to a probation violation).  Some of the probation conditions this time around were to complete 40 hours of community service, pay some fines, and, if his probation officer required it, to attend a counseling or training program. 

Defendant’s life began to get busy in the late spring and summer of 2007.  At some point after his May 2007 plea agreement in Grand Isle, Defendant entered a residential counseling program called Teen Challenge.  Defendant told his probation officer about the Teen Challenge program in August.  During this same summer, the State charged Defendant with several more crimes (these appear to have been crimes that occurred prior to his May 2007 guilty pleas and not crimes he committed post-May 2007)—this time in criminal court in Chittenden County.  Again, most of these charges were for crimes involving a motor vehicle and again, Defendant copped a plea. 

Things began to settle down a bit in October as Defendant reached a plea agreement with the State on the Chittenden County charges—resulting in a suspended sentence of 6–18 months, with two years of probation, 100 hours of community service, and some more fines.  Nine days after reaching this plea agreement, Defendant signed a probation contract with his probation officer, which contained some requirements regarding his fines and community service, and stated that Defendant was enrolled in Teen Challenge.  Because Teen Challenge was a residential program located in Johnson, Defendant’s probation case was transferred to the probation office in Morrisville, and a different probation officer took over his case.

Unfortunately, it appears that Defendant was not up to the Challenge, teen or otherwise.  In January 2008, the Teen Challenge program notified Defendant’s probation officer that Defendant had left the program.  The probation officer then filed a VOP (violation of probation) complaint against Defendant in his Grand Isle case on the basis that he had left the Teen Challenge and had not notified the probation officer of his change in address.  After a couple of months, the probation officer filed a VOP complaint in Defendant’s Chittenden County case for Defendant’s failure to pay his fines, failure to complete community service, and failure to participate in required counseling.  After a hearing on these alleged violations, the Chittenden District Court found Defendant guilty for failing to attend counseling as required by his probation officer, failing to perform community service, and failing to pay the fines. 

By the time of Defendant’s June 2, 2008 sentencing hearing, a new VOP claim was at issue—this one was for engaging in violent or threatening behavior.  Defendant admitted to this VOP, which was based on his having physically and verbally abused an ex-girlfriend.  At the hearing, the parties jointly proposed a “global settlement” for all the VOPs, which was a prison sentence of two and a half to eight years.  The trial court ordered the sentence proposed by the parties. 

After serving about two years of this agreed-upon sentence, Defendant realized that something was amiss and filed a post-conviction relief (PCR) petition on the basis that his lawyer had failed to tell him that he could have appealed the district court’s VOP decision.  Rather than fight out the PCR, everyone agreed that Defendant could just go ahead and have his appeal of the VOP decision.  This brings us to our divided SCOV.

The three Justices in the majority agree that the State failed to meet its burden in proving the VOP.  The majority states that the so-called probation contract did not contain any clear requirements that Defendant was to attend Teen Challenge or any other counseling program.  Consequently, Defendant’s decision to leave Teen Challenge was not a violation of any condition of his probation.  The majority also concludes that the so-called contract did not contain a payment schedule for the court-imposed fines that would have required Defendant to pay those fines at any specific time.  Without a set date by which the fines were due, Defendant’s non-payment of the fines could not be considered a violation of any condition of his probation.  Finally, the majority states that the State did not offer any proof that Defendant had failed to complete his community service.  Therefore, it did not carry its initial burden of proof. 

According to the majority, there was no basis for the trial court’s findings that Defendant violated probation.  He should have been a free man (albeit with some conditions) for those two years that he was locked up.

But wait . . . what about his admitted physical and verbal abuse of his ex-girlfriend?  Surely that can stand as a VOP, right?  Well, perhaps.  But because the “global settlement” was reached and ordered by the trial court based on all of those other erroneous VOPs, the majority holds that the prison sentence cannot stand.  Defendant is ordered to return to the district court with his appellate victory and the district court will have the opportunity to decide on a sentence for him based on the admitted VOP alone.

Our dissenting Justices are not impressed by the majority’s reasoning on the Teen Challenge issue.  Justice Burgess, writing for himself and Chief Justice Reiber, explains that the majority skipped rather too quickly over the facts surrounding the creation of the probation contract and the testimony of the first probation officer at the VOP hearing—and in doing so, the majority came to the wrong conclusion.  In particular, Justice Burgess notes that probation conditions may be imposed by a probation officer without a written contract—as long as the probationer has adequate fair notice of what is required or prohibited, this is sufficient. 

The facts of this case, in dissent’s view, show that the probation officer had made it abundantly clear to Defendant that he was required to be in counseling.  The dissent contends that the whole point of the probation contract was to establish requirements—otherwise, why create a contract?  And since the contract mentioned the counseling, that evidence, paired with the probation officer’s testimony, was sufficient to show that the counseling requirement had been clearly imposed and given to the Defendant.  This was sufficient evidence for the trial court to find a VOP when Defendant dropped out of Teen Challenge without discussing it with his probation.    

But without the third vote, the dissent’s voice is simple a word of caution to the contracting winds.

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