Unsatisfactory Discharge

By Daniel Richardson

State v. Nolen, 2012 VT 106.

Today’s case is a brief but interesting foray into the world of probation. 

Defendant was convicted of the misdemeanor charge of negligent operation of a motor vehicle.  He received a 9-to-10-day sentence, but all of it was suspended, and he was put on probation for several years.

One year later, the Department of Corrections sought to have Defendant unsatisfactorily discharged from probation because he was not cooperating with the Department and the terms of his probation.  He failed to complete his treatment and mental health programs and would not avoid the victim of his crime (both conditions of his probation).  Defendant further was uncooperative in setting up probation appointments and had a host of medical ailments that kept him from attending most of the meetings (paragraph 2 of the decisions lists these numerous, serious conditions).

Unsatisfactory discharge from probation means that the probationer is dismissed from probation but has not met the terms or objectives of the probation.  The determination carries negative consequences, including becoming a factor in future sentencing and probation schemes.  It is bad credit, and it will follow you.

Defendant disputed the Department’s motion and sought a hearing on the matter.  The State’s Attorney also disputed the Department’s request and argued that if Defendant was in violation of probation, then he should be found as such and should not be rewarded with the termination of probation for bad behavior.

In the parties motions were a number of disputed facts.  The trial court scheduled a hearing, and Defendant asked to appear by phone because his chemotherapy left him weak and with a depleted immune system.  The trial court denied the motion, canceled the hearing, and ordered Defendant unsatisfactorily discharged from probation.

On appeal Defendant argues that this decision was in error because he was entitled to a hearing to dispute the Department’s facts and to defend himself.  The State’s Attorney does not appeal, but it argues, ironically, the same thing. 

The SCOV agrees.  When a motion involves such an important classification, disputed facts, and a request for a hearing, it is an abuse of discretion to deny the Defendant an opportunity to submit and cross-examine evidence at a hearing. 

And that is it.  The SCOV reverses and remands to the trial court for a hearing on the arguments and contested facts.  It also suggests that the trial court revisit the question of whether it can even issue such an unsatisfactory discharge under 28 V.S.A. § 251 since that statute allows for a discharge but does not explicitly empower the court to make a ruling of an unsatisfactory discharge. 

Given the contested nature of this and the underlying factual basis, the hearing is likely to be heated, and another appeal is not unforeseeable.  

Of course, this also depends on whether Defendant survives his various conditions to take the case forward.