Verified Violation

State v. Provost, 2014 VT 86

By Andrew Delaney

This is yet another case about probation and what is and isn’t a violation. Is it just me or does it seem like there’s been one of these cases nearly every week for the past several months?

Among other things, defendant pled guilty to a domestic assault. One of his probation conditions was that he participate in the “Domestic Violence (DV) Solutions program.” His intake—which took a couple tries to get to because defendant canceled twice when he didn’t have the required fee—did not go well. “The counselor terminated it because she perceived defendant’s behavior as threatening and because defendant denied committing the offense.”

Based on that encounter, defendant’s probation officer (PO) filed a violation of probation (VOP) complaint against defendant—alleging that defendant to failed to complete the DV Solutions program in a timely fashion and engaged in threatening behavior. Defendant admitted that he could’ve been more pleasant during the meeting. There was a merits hearing; the trial court found that defendant had violated both conditions, and set it for sentencing.

Defendant’s PO wanted the trial court to lock defendant up and make him do the program in prison. Defendant and his attorney asked the court to keep defendant on probation and give him more time to complete the DV Solutions program. The court agreed with defendant’s position, extended probation by a year, and ordered defendant to write an apology letter to the intake counselor.

Defendant appealed. While the appeal was pending, defendant picked up another two VOP complaints, admitted one, and was sent to “the joint” based on his underlying sentence.

The SCOV’s analysis begins with the State’s burden of proof in a VOP proceeding. Though this is a criminal case, with serious consequences, and television might suggest the beyond-a-reasonable-doubt standard, that doesn’t apply in a VOP. It’s a more-likely-than-not standard—the same standard that applies in civil cases. Defense attorneys hate this standard; prosecutors love it.

Whether a violation occurred is a mixed question of fact and law. Basically, the trial court has to look at defendant’s conduct and determine whether that conduct in fact violated the applicable condition. The SCOV uses a semi-deferential standard of review here: affirming findings if fairly and reasonably supported by credible evidence and affirming legal conclusions if reasonably supported by the findings.

Defendant’s argument is that his original term of probation expired while this appeal was pending, so he can’t be punished for the after-expiration violations. It’s a good lawerly argument, but the SCOV doesn’t buy it.

The SCOV reasons that “the evidence is undisputed that defendant failed to enter or complete the DV Solutions program in a timely manner.” He canceled two scheduled intakes and then was rude when he actually came in.

The SCOV notes that defendant and his attorney pretty much conceded that the delay could be seen as a violation, and asked the court to extend the term of probation. On this basis, the SCOV concludes that the VOP finding was justified, notes the trial court’s authority to extend a probationary period in the event of a violation, and affirms the trial court.

And so it goes. As the SCOV continues to explore the dark, dank nether regions of probation and its vagaries, who knows what interesting twists we’ll see next. Until next time . . .