State v. Cornell, 2014 VT 82
By Elizabeth Kruska
Probation conditions are apparently quite the battlefield. SCOV has decided what seems like eleventy hundred cases about probation conditions recently. Why? Because if the conditions are too vague or not written correctly, there’s room for a probationer to misunderstand what is (or isn’t) required. On the other hand, if there are too many conditions, there’s also room for confusing overlap. Or, if you’re involved in this particular case, all the above apply. If a defendant doesn’t agree with a probation condition being proposed, he or she can object to it at the time of sentencing. That also applies here. Sort of.
Owen Cornell was convicted of a sex crime and sentenced to a split sentence after a contested sentencing hearing. The State wanted 2-8 years to serve. Mr. Cornell wanted probation. The court split the difference and imposed a split sentence of 2-6 years, all suspended but 20 months to serve in jail, with credit for time already served.
The court ordered a pre-sentence investigation (PSI), which was completed and filed by the Department of Corrections (DOC). At the time of sentencing the court stressed the importance of Mr. Cornell doing sex offender treatment, and imposed “all sexual offender conditions as mentioned in the PSI.”
Unfortunately, this was unclear. Although the PSI had a list of conditions, the list also had check boxes (or lines, I’m not sure) next to each condition. One would think that if a condition was being recommended, it’d be checked or have an x next to it or something. But all the boxes were blank. Some of the conditions also conflicted with the so-called “standard probation conditions” (of which there are 20 or so), like one that prohibited alcohol use but another that prohibited excess alcohol use. Confusing. In all, between the “standard” conditions and all the “sex offender” conditions, there were a total of 53 probation conditions. That’s a whole lot of conditions.
Mr. Cornell didn’t object in writing to the conditions in the PSI, nor did he object at the time of sentencing. It’s possible it’s because it was unclear as to which the conditions were actually being imposed, because none of them were checked.
Mr. Cornell appealed, and sought special permission to SCOV, asking for a remand to the trial court to clarify the conditions that were to be imposed. SCOV said "ok" and remanded “for the specific purpose of providing clarification of the special probation conditions imposed.” At this point Mr. Cornell filed written objections to several different conditions (many of which have been challenged in other courts, and may have various constitutional flaws, but that’s a different conversation for a different day).
The trial court thereafter issued an order pretty much imposing all the probation conditions from the PSI. The court also said it wouldn’t consider the objections raised by Mr. Cornell, because the right time for him to have done that was at sentencing, and that the point of the remand was only for clarification, not for a time to object. Mr. Cornell filed a motion asking the court to reconsider, to which the trial court said, “nope.” Then he filed a motion seeking to modify his probation conditions and the court denied that, too, saying it no longer had jurisdiction since the case was on appeal.
There was an odd procedural hiccup that also occurred in this case. While the remand and motion to reconsider were being filed in the trial court, SCOV granted an extension of the remand and allowed the court to reconsider. Unfortunately, those things got crossed in the mail. Long story short, SCOV now says it was proper for Mr. Cornell to object to the conditions when he did.
Why’s that? Well, at the time of sentencing, he didn’t know what objection he could make. The PSI didn’t specify conditions, it just listed lots of possible conditions. Then, during the hearing, the court imposed a vague, nonspecific order, just saying “all the sex offender conditions” or something similar. Because it wasn’t specific, he couldn’t object to the conditions he didn’t like. Finally, the post-hearing entry order said “all sex offender conditions as directed by your probation officer.” Again, it’s not specific, and it also has the appearance of delegating choice of conditions to the probation officer. But he couldn’t object because he didn’t know what he could object to. (I object to ending a sentence with a preposition, but it just happened.)
The State says he should have appealed at the sentencing hearing, or he should file a motion for post-conviction relief, saying that in arguing for probation instead of jail he focused on the structure of the sentence and not the conditions. Because he didn’t object, he lost his opportunity to challenge the conditions once they were imposed.
SCOV says no. Here’s the problem: notice. There’s no way Mr. Cornell could’ve objected to the conditions because he didn’t know what they were. Although the State argues that it’s routine just to impose all the sex offender conditions, there’s really no way Mr. Cornell would know that. It’s not a rule or a statute, it’s just the local practice. Furthermore, SCOV was unhappy that there was clearly a place to check off some boxes, and none of them were checked. If they were all sought, check all the boxes.
You can’t object to something if you don’t know what it is your objection can or should address. That’s like going out for lunch and being told that you have to say what you’re not going to order before you get to look at the menu. Telling the waitress you’re not having the liver and onions doesn’t do you any good if they don’t even serve that. Since the conditions were not explicitly set forth, the case gets remanded back to the trial court to impose explicitly stated conditions.
Oh, and by the way, SCOV wants conditions to be imposed that are “reasonably necessary to ensure that [Mr. Cornell] will lead a law abiding-life.” Sounds like perhaps SCOV would like to see some findings connecting the specifically-ordered conditions to Mr. Cornell’s situation. It doesn’t say so; that’s just an informed guess on my part.
Enter Justice Dooley with a concurrence. He points out a few things. First of all, he points out that there are about 53 conditions being imposed, which can be “a muddle” where things should be clear, especially where “special” and “standard” probation conditions are at odds with one another.
Secondly, he points out that it might not be totally clear where a defendant can raise an objection to a probation condition. Sure, it has to happen at sentencing. But there’s no rule requiring, or even allowing for, an objection to proposed conditions from a PSI. PSI objections only go to facts.
In this particular situation, Mr. Cornell only learned what the conditions were after the sentence was imposed and he received a list of them. He couldn’t have objected not knowing what they were, and after the sentence was imposed is arguably too late.
Finally, Justice Dooley points out that the rule is unclear as to when findings by the court are necessary to support a particular probation condition.
His solution: amend the rule to make it more clear about PSI and probation condition objections. That would probably make a lot of sense.