Job Control

By Daniel Richardson

State v. Freeman, 2013 VT 25

Most criminal cases end in a plea bargain.  That’s simply a fact.  Why these cases settle rather than going to trial is an interesting mixture of strong evidence of guilt, fear of going to trial (and the resulting consequences), lack of resources, and the ability to strike a good deal.

Yet, just because the State and defendant strike a deal does not relieve the trial court of the obligation to scrutinize the deal.  It also does not foreclose the defendant’s ability to challenge all or some portion of the sentence on appeal.  Plea bargains, while voluntary, must be entered into knowingly and willingly.  The trial court must interview the defendant before accepting the plea bargain to make sure that the Defendant knows what she is accepting and to make sure it is a voluntary deal.  Failure to do so can result in a plea agreement being set aside on appeal and a defendant freed of an involuntary bargain.

The same largely goes with sentencing.  Often parties will agree to an overall guilty plea (defendant pleads guilty to three out of six charges and the remaining are dismissed) with an agreed sentence period, but they will leave some of the terms open for the trial court or the probation officer to add and recommend. 

Today’s Defendant originally pled guilty to four counts of assault for breaking into his ex-wife’s house and savagely beating up her and her house guests.  The basis of Defendant’s bargain was that he agreed to the guilty pleas in exchange for dismissing the remainder of the claims and for a 20-year minimum sentence.

In preparation for sentencing, the trial court ordered a pre-sentencing investigation report.  This report was submitted and contained several additional conditions of probation.

At the sentencing hearing, the trial court inquired with Defendant about the plea agreement.  It then asked if the parties were in agreement with the terms recommended by the pre-sentencing report.  The State said that it agreed with them.  Defendant was silent, and counsel for Defendant stated that they had no objections.  The trial court adopted the conditions entirely and appended them to Defendant’s sentence.

On appeal, Defendant sought to challenge two of the additional conditions as being unfair and unduly restrictive.

The first is a requirement that Defendant take and pay for polygraph examinations during his probation to ensure that he is complying with the other terms of his probation (such as staying drug free). 

The second is a requirement that Defendant only resides and works at places where the probation officer approves. 

Before the SCOV can get to the substance of these two conditions, it has to do a plain error analysis to see if it can even address the issues.  Because Defendant did not object or protest the probation terms, the State argued that he effectively waived them or did not preserve them for appeal.  The SCOV notes that waiver in a plea bargain review and sentencing appeal must be affirmative and not merely a silence.  Defendant’s failure to object does not constitute a waiver. 

But it does mean that the issue was not preserved, which means that the only way the SCOV can address the probations conditions is to determine that accepting them as part of the sentence was plain error. 

After some review of prior decisions, the SCOV rules that the failure to review these additional probation conditions could constitute plain error, and it moves to the substance of Defendant’s claims.

On the first condition, Defendant argued that it took away his due process right to challenge the admission of a polygraph test in future parole revocation hearings.  The SCOV disagrees.  The plain language only requires Defendant to take the tests.  It does require him to consent to their admissibility in a hearing. 

Under the terms of the probation, Defendant will still be able to challenge the admission of any polygraph as being unreliable, inaccurate, or improper on any other ground.  Again, the condition only requires that he take the tests to monitor his progress, which is a legitimate purpose that does not offend due process or Defendant’s other constitutional rights. 

On the second condition, the result is a little different.  Defendant argued that giving the probation officer total control over his work and residence was overbroad and unduly restrictive.  The SCOV agrees and finds no basis to support the substantial delegation of authority over Defendant’s life to the probation officer without standards or limits. 

Such broad grants are too open ended and cannot stand.  Even though the trial court has broad discretion in sentencing, there is no factual or circumstantial basis for this term.  The SCOV reverses on this point and remands the case to the trial court to make further findings, modifications to the condition or to cancel it entirely.

This does not mean a lot for Defendant in the short term.  Already serving his 20-to-life sentence, Defendant will not be entering the private work force or looking for housing anytime soon.  But depending on what the trial court does, in 20 years, Defendant could be updating his resume before too long and asking the probation officer only to correct the spelling mistakes or provide a reference.