State v. Provost, 2014 VT 86A
By Andrew Delaney
This is an amended opinion. If you notice a few similarities between this summary and last year’s, you’re probably not alone. The amended opinion issues based on Mr. Provost’s motion for reargument, but the end result is the same—the SCOV majority concludes that Mr. Provost violated his probation.
Among other things, Mr. Provost pled guilty to an aggravated 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.
According to the intake counselor, Mr. Provost was belligerent from the get-go, starting with a hostile response when she called his name for the appointment. When asked about convictions, Mr. Provost accused her of going through his records. He refused to admit to committing the offense, and the intake counselor said she was going to terminate the interview. Mr. Provost then allegedly blocked the doorway. The intake counselor called for a probation officer (PO) to help. Then Mr. Provost began yelling at the PO.
The intake counselor testified that she felt threatened by Mr. Provost, and that in eight years of doing the gig, she hadn’t before felt a need to call a PO for help. Mr. Provost denied threatening the counselor, but admitted that he was “not very civil” and he “wasn’t very nice that day.”
So, Mr. Provost’s PO filed a violation of probation (VOP) complaint against defendant—alleging that Mr. Provost failed to complete the DV Solutions program in a timely fashion and engaged in threatening behavior. There was a merits hearing; the trial court found that Mr. Provost had violated both conditions, and set it for sentencing.
Mr. Provost’s PO wanted the trial court to lock defendant up and make him do the program in prison. Mr. Provost 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 Mr. Provost’s position, extended probation by a year, and ordered defendant to write an apology letter to the intake counselor.
Mr. Provost appealed. While the appeal was pending, he picked up another two VOP complaints, admitted one, and was sent to “the joint” based on his underlying sentence. Or maybe it was for a simple-assault-on-a-police-officer charge. There’s a somewhat-confusing footnote—I’m not sure it’s that important in this context.
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.
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.
Mr. Provost’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. Because he didn’t raise the issue below, we’re in plain-error territory. Figuratively, this is like the “ERROR”-must-be-tattooed-in-block-letters-across-the-forehead zone.
The majority reasons that there’s no plain error here because Mr. Provost’s PO told him he’d be violated if he didn’t complete the third scheduled intake. This kinda makes sense. On the other hand, in my mind, it opens the door to situations like this: “Oh, so you don’t want to sing ‘I’m a little teapot,’ eh? Well, that’s a violation. Show me your handle and spout, or else.”
The majority reasons that Mr. Provost 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. The majority further reasons that Mr. Provost undisputedly “failed to complete the third intake” and that it was his own fault. On this basis, the majority concludes that the VOP finding was justified based on Mr. Provost’s delay in completing the DV program, and doesn’t get into the whether-the evidence-supported-the-violation-of-the-threatening-behavior-condition issue. As before, the majority affirms the trial court’s decision.
Justice Robinson dissents. She notes that the SCOV has generally scrutinized ambiguous probation conditions. She points to this case for the a-probationer-needs-fair-notice-of-what-conduct-is-prohibited-or-required proposition. “Mouthing off” is not violent or threatening behavior. She also points to this case for threatening behavior’s ambiguity.
Then there’s the infamous unplanned-boom-boom-time-isn’t-a-violation case. Justice Robinson concludes that the SCOV doesn’t “read unwritten terms into probation conditions, or . . . enforce a probation officer’s interpretation of a condition to impose requirements not expressly reflected in the language of the condition itself.” This case covers that proposition.
I can’t phrase the root of the issue in this case any more beautifully than Justice Robinson: “I turn to the text of Condition 31. It reads as follows: ‘31. DV Solutions.’ That’s it. That’s all it says. The entirety of the condition reflected in the certificate of probation is the name of a program for domestic-violence offenders.” Nice.
While Justice Robinson concedes that completion of the program can reasonably be inferred from its inclusion as a term of probation, she then notes that the condition explicitly does not include all the stuff the majority reads into it. “The condition decidedly does not say, ‘Complete the DV Solutions program within a reasonable time, as determined by your probation officer.’ Nor does it say, ‘Begin the DV Solutions program within a reasonable time, as determined by your probation officer.’” Because Justice Robinson is not about to read a bunch of stuff that isn’t there into the phrase “DV Solutions,” she dissents.
By Andrew Delaney
This is an amended opinion. If you notice a few similarities between this summary and last year’s, you’re probably not alone. The amended opinion issues based on Mr. Provost’s motion for reargument, but the end result is the same—the SCOV majority concludes that Mr. Provost violated his probation.
Among other things, Mr. Provost pled guilty to an aggravated 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.
According to the intake counselor, Mr. Provost was belligerent from the get-go, starting with a hostile response when she called his name for the appointment. When asked about convictions, Mr. Provost accused her of going through his records. He refused to admit to committing the offense, and the intake counselor said she was going to terminate the interview. Mr. Provost then allegedly blocked the doorway. The intake counselor called for a probation officer (PO) to help. Then Mr. Provost began yelling at the PO.
The intake counselor testified that she felt threatened by Mr. Provost, and that in eight years of doing the gig, she hadn’t before felt a need to call a PO for help. Mr. Provost denied threatening the counselor, but admitted that he was “not very civil” and he “wasn’t very nice that day.”
So, Mr. Provost’s PO filed a violation of probation (VOP) complaint against defendant—alleging that Mr. Provost failed to complete the DV Solutions program in a timely fashion and engaged in threatening behavior. There was a merits hearing; the trial court found that Mr. Provost had violated both conditions, and set it for sentencing.
Mr. Provost’s PO wanted the trial court to lock defendant up and make him do the program in prison. Mr. Provost 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 Mr. Provost’s position, extended probation by a year, and ordered defendant to write an apology letter to the intake counselor.
Mr. Provost appealed. While the appeal was pending, he picked up another two VOP complaints, admitted one, and was sent to “the joint” based on his underlying sentence. Or maybe it was for a simple-assault-on-a-police-officer charge. There’s a somewhat-confusing footnote—I’m not sure it’s that important in this context.
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.
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.
Mr. Provost’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. Because he didn’t raise the issue below, we’re in plain-error territory. Figuratively, this is like the “ERROR”-must-be-tattooed-in-block-letters-across-the-forehead zone.
The majority reasons that there’s no plain error here because Mr. Provost’s PO told him he’d be violated if he didn’t complete the third scheduled intake. This kinda makes sense. On the other hand, in my mind, it opens the door to situations like this: “Oh, so you don’t want to sing ‘I’m a little teapot,’ eh? Well, that’s a violation. Show me your handle and spout, or else.”
The majority reasons that Mr. Provost 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. The majority further reasons that Mr. Provost undisputedly “failed to complete the third intake” and that it was his own fault. On this basis, the majority concludes that the VOP finding was justified based on Mr. Provost’s delay in completing the DV program, and doesn’t get into the whether-the evidence-supported-the-violation-of-the-threatening-behavior-condition issue. As before, the majority affirms the trial court’s decision.
Justice Robinson dissents. She notes that the SCOV has generally scrutinized ambiguous probation conditions. She points to this case for the a-probationer-needs-fair-notice-of-what-conduct-is-prohibited-or-required proposition. “Mouthing off” is not violent or threatening behavior. She also points to this case for threatening behavior’s ambiguity.
Then there’s the infamous unplanned-boom-boom-time-isn’t-a-violation case. Justice Robinson concludes that the SCOV doesn’t “read unwritten terms into probation conditions, or . . . enforce a probation officer’s interpretation of a condition to impose requirements not expressly reflected in the language of the condition itself.” This case covers that proposition.
I can’t phrase the root of the issue in this case any more beautifully than Justice Robinson: “I turn to the text of Condition 31. It reads as follows: ‘31. DV Solutions.’ That’s it. That’s all it says. The entirety of the condition reflected in the certificate of probation is the name of a program for domestic-violence offenders.” Nice.
While Justice Robinson concedes that completion of the program can reasonably be inferred from its inclusion as a term of probation, she then notes that the condition explicitly does not include all the stuff the majority reads into it. “The condition decidedly does not say, ‘Complete the DV Solutions program within a reasonable time, as determined by your probation officer.’ Nor does it say, ‘Begin the DV Solutions program within a reasonable time, as determined by your probation officer.’” Because Justice Robinson is not about to read a bunch of stuff that isn’t there into the phrase “DV Solutions,” she dissents.
If you want to read the opinion from last year, which has "disappeared" from the official website, click here.
Which interpretation do you agree with? Let us know.
Which interpretation do you agree with? Let us know.
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