By Jeffrey M. Messina
Most criminal defense attorneys get frustrated with the Department of Correction’s (DOC) apparently unfettered autonomy. Here's a case where the Vermont Supreme Court gives some power back to the trial courts.
This case comes on appeal of a superior court decision which concluded that Defendant violated a condition of his probation requiring him to complete the Vermont Treatment Program for Sexual Abusers (“VTPSA”). The trial court found Defendant failed to complete the program, though it refused to review the underlying disciplinary action taken by the DOC that resulted in removal from the program.
Defendant was charged with aggravated sexual assault and sentenced to a term of 5 to 15 years, all suspended except 4 to serve. At sentencing, the court imposed Condition 34, which states: "You shall participate fully in the [VTPSA] during the course of your suspended sentence. Failure to complete said program while incarcerated may result in a violation of your probation."
Defendant attended VTPSA orientation where he went through the orientation handbook. Included in the handbook was a "cardinal rule" against "physical violence or threats of physical violence." Additionally, the handbook stated that breaking the cardinal rule "may result in termination from the program." Defendant had to acknowledge that he received the handbook and would follow all the rules and regulations outlined therein.
At some point, Defendant met with a corrections officer investigating two disciplinary reports against him. At the meeting, Defendant sat on the opposite side of a desk from the officer. According to the officer, Defendant was upset and agitated, speaking in a "higher-pitched and louder than normal" voice, and was flushed. The officer also said that Defendant crumbled the disciplinary report and threw it, hitting her in the face when she attempted to duck. Generally, he wasn't happy.
Defendant denied he intentionally threw the paper at the corrections officer; rather, he was trying to throw the paper in the trash. There was video recording of the incident which showed Defendant lobbing the paper; but due to the video quality, it was not possible to tell whether the paper was lobbed directly towards the officer or to her right. As a result of this incident, Defendant was terminated from the program. Due to the termination, a violation of probation (“VOP”) was filed against Defendant.
A hearing was held on the VOP. Defendant argued: (1) he did not understand the scope of the rule against violent behavior; (2) the video clearly showed the paper throwing incident was not violent; (3) because his behavior was not assaultive, he should not have been terminated from the program; and, (4) because he should not have been terminated from the program, he cannot be found in violation of his probation.
The court reviewed the video recording and conceded that "if the Defendant had been brought before the court for violation of probation based upon violent behavior, the court might not have found a violation." However, the court concluded it was unable to review the underlying determination by the DOC that resulted in Defendant's termination from the program. As such, the court found that Defendant violated Condition 34 for failing to complete the program. Defendant appeals.
Defendant on appeal argues four points in support of his position that the trial court erred in concluding it lacked jurisdiction to consider DOC's decision to terminate him from VTPSA: (1) the court is authorized by statute to make a final determination of whether there are grounds for revocation; (2) the court's delegation of decision-making authority to the DOC in a probation violation matter violates the separation-of-powers doctrine; and, (3) violation-of-probation hearings involve constitutional questions that the court has the power to review. Defendant also argues the trial court erred in relying on Inman and Rheaume because a probation violation hearing differs from a Rule 75 action.
The State argues that the DOC has exclusive authority to determine Defendant's compliance with program requirements, which are therefore absolutely unreviewable. The State does, however, concede that constitutional questions are reviewable; but it also stubbornly maintains that in this case Defendant has no colorable constitutional claim.
SCOV reviews the trial court's conclusion that it lacked authority to review the DOC's programming decision de novo, noting that's a question of law.
The Court begins with an examination of Inman and Rheaume to determine their applicability in this case, concluding that the cases are not controlling here because they specifically address the availability of a remedy under Rule 75 for specific DOC program requirements. Imman and Rheume involved jurisdictional questions in which SCOV held a trial court has no jurisdiction to review programming decisions of the DOC, even where those decisions affect the length of the inmates' incarceration. SCOV distinguishes those from this case, stating the court in the present matter was not reviewing DOC's programming decision or its internal consequences, but rather deciding whether to revoke Defendant’s probation, which is an action the trial court has exclusive jurisdiction over.
Because the alleged substantive ground of the VOP is a violation of the program's "cardinal rule" against physical violence or threats of physical violence, the court had jurisdiction to determine whether the requirement was violated. Since the court did not exercise its discretion to determine whether the alleged violation was such that the revocation should be ordered, SCOV reverses. Because SCOV reverses on these grounds, it does not review Defendant's other arguments.