Thursday, November 12, 2015

Criminal Conditions

State v. Putnam, 2015 VT 113

By Amy Davis

On a beautiful spring day in 2013, Defendant’s neighbor was driving along the dirt road to his house at a leisurely 10 m.p.h. with the music turned up and the windows rolled down—the perfect start to a country song. Just then, Defendant raced up behind him faster than Kyle Busch, pulled ahead of him, slammed on his brakes, and skidded down the road. Defendant got out of the car, yelling for the neighbor to turn down his music. For this, Defendant was charged with and convicted of grossly negligent operation and disorderly conduct.

Defendant appeals the court’s denial of his motion for judgment of acquittal. Defendant contends that the State needed to show that he “exercised no care due to others in a situation where there is great potential for immediate danger” and the State failed to do that. Under the applicable statute, gross negligence is a “gross deviation from the care that a reasonable person would have exercised in that situation.” Sometimes it’s hard to tell the difference between negligent operation and gross negligent operation, but even mere inattention can suffice for grossly negligent.

In this case, the court instructed the jury that the State needed to show that Defendant “disregarded a risk of injury or death” and the State rose to that challenge. If you pass on a narrow road, then turn your car sideways in said road causing another car to slam on its brakes to avoid hitting you, that’s gross negligence—so don’t do that. Defendant says, "Well I didn’t run him off the road or drive him into oncoming traffic, so it’s not that bad."  The SCOV says it is still bad and upholds the denial of Defendant’s motion for judgment of acquittal.

Now, time for the interesting stuff: probation conditions. In June 2011, Defendant was involved in another motor vehicle accident where he fell asleep at the wheel. Defendant says, "Well actually I swerved to avoid a crash and saved a lot of lives in doing so." The detective involved in that accident says, "Well, Defendant seems off and there is something wrong with him. Then, in another incident, Defendant reported a large pot (marijuana, not cookware) operation near his home launching a helicopter search finding no evidence of marijuana. Defendant also cussed out the town clerk, and then brought a handgun to construction site, telling wild stories and making everyone uncomfortable. Then there’s something about a chainsaw running in the woods near his home which only Defendant could hear. Defendant also claimed to be working for the Drug Enforcement Agency—probably why he’s so concerned about reefer.

For this, the State asked for a one-to-six month sentence, all suspended with two years of probation. Probation could maybe compel Defendant to act nicer to his neighbors, the police, and the entire community. In addition to the “standard conditions of probation,” (except restrictions on defendant’s out-of-state travel, the imposition of a curfew, and the restriction on his associations), the State asked for a special condition that Defendant visit a mental-health counselor for initial screening and follow any recommendations thereafter. Defendant asked for a deferred sentence without any probation conditions, and if probation was imposed, the only condition should be that he not be convicted of another crime or engage in conduct prohibited by law.

The court sentenced Defendant to two concurrent thirty-to-sixty day sentences, all suspended, with two years of probation. The court imposed “the standard conditions of probation” with two exceptions, and also ordered Defendant have no contact with his neighbor, undergo a mental-health screening, follow any counseling recommendations, and sign any release so his probation officer can monitor his participation with counseling.

In regards to the “Standard Conditions”, the SCOV looks to this statute that says the court can impose conditions of probation that the court “in its discretion deems reasonably necessary to ensure that that the offender will lead a law-abiding life or to assist the offender to do so.” The statute includes more than a dozen conditions that a court may require like paying a fine, no contact with the victim, community service etc. But the term “standard condition” refers to the probation-order template generated by the Office of the Court Administrator, which identifies Conditions A through S as “standard conditions of probation.” Thus, they are only standard in the sense that they’re on a template and a standard plea-agreement form. They’re not actually standard because there’s been no judicial determination that each one is presumptively valid. So, Defendant is correct in saying the only “standard” condition is the one that says you can’t get convicted of another offense.

Defendant challenges conditions A-S (except condition B, prohibiting him from being convicted of another crime), condition K (requiring counseling), and condition N (precluding behavior that would cause a reasonable person to fear property damage or bodily injury). The SCOV says, look, we’ve said it before and we’ll say it again: the conditions have to be reasonably related to the crime. A condition is related if it's designed to promote the probationer’s rehabilitation and protect the public. Anything that restricts the probationer’s freedom must be fine-tuned.

The State says this requirement does not apply to conditions specifically included in the statutory list of permissive conditions. First of all, SCOV says, there must be a reasonable relationship and this applies to the conditions in the statutory list, too. Second, the SCOV’s repeated holdings requiring a reasonable nexus between the crimes and the conditions rest on statutory and constitutional considerations. Third, to say that all seventeen permissive conditions are appropriate in every case is not conducive with the principles of individualized sentencing. Finally, the State’s approach is not the best reading of the statute because there is a difference between “shall” and “may” and the conditions thereafter listed.

Starting with the conditions relating to the probation officer’s supervision of Defendant, the SCOV concludes that Conditions A, F, G, H, and J are all properly related to his supervision. All of these are linked to the mandatory condition that Defendant not be convicted to another crime and assists the probation officer in knowing if he has been involved in any criminality.

Condition C requires that Defendant regularly work a job, look for work, or get job training if required by the probation officer. The State says that active participation in the workforce is important to rehabilitation. Generally true, but nothing in the record that says it should be imposed on this defendant. Condition C gets axed.

Conditions D, Q, and R all relate to community service and restitution. In this case, the court neither ordered community service nor imposed restitution, so the conditions don’t have anything to do with Defendant. Gone!

Condition E requires that a defendant must support his dependents and meet other family responsibilities. There’s no evidence that Defendant was subject to any court orders regarding support, no evidence that he failed to meet his legal obligations to his family members, and no evidence that Defendant’s conduct leading to his conviction was part of a broader pattern of neglecting familial responsibilities. Condition E is struck.

Condition L says Defendant must not buy, have or use any regulated drugs unless prescribed. Defendant argues that his crime was not connected to drug use, but the SCOV says a condition that forbids criminal conduct is valid. Because the condition precludes criminal conduct, the trial court is not required to find a reasonable relationship between conviction and condition. Condition L survives.

Conditions M and P relate to alcohol use and drug testing. There is no evidence in this case that the crime was related to drug or alcohol use, nor any evidence that Defendant has a problem with drugs or alcohol. Therefore, condition M allowing for random urinalysis testing is struck. Condition P requiring Defendant not to drink alcoholic beverages in excess is also struck. Cheers!

Condition O precludes Defendant from operating a motor vehicle on a public highway unless in possession of a valid Vermont operator’s license. Because Defendant’s crime relates to the operation of a motor vehicle, a court could conclude that the requirement to not drive without a license is reasonably related to defendant’s rehabilitation. Condition O lives.

Condition S requires Defendant to repay any unpaid amounts due for legal services provided at the state’s expense. In this case, Defendant was required to pay $50 for his legal services within 60 days or the debt would go to the Tax Department for collection. $50 for two years’ worth of legal services. Really? That’s it? I can’t keep my cat alive for two years on fifty bucks. The SCOV concludes that this condition arises from the crime from which defendant was convicted and therefore is sufficiently related to his rehabilitation. If it was related to feeding my cat her Science Diet dental food, then that’s not reasonably related.

And finally, Condition K requires Defendant to attend counseling and training programs designated by the probation officer. Defendant says, yeah I don’t mind mental health counseling or anger management—probably a good idea. The problem with this particular condition is that it gives the probation officer broad discretion over what type of counseling and training programs Defendant would need to partake in. The SCOV concludes the condition gives the probation officer an overbroad delegation of authority not supported by findings. The court imposed a condition that Defendant participate and complete “mental health counseling to include anger management” but the condition is too broad and gives too much authority to the probation officer. The SCOV remands this condition to the trial court to make specific findings to support the condition of broad delegation, revise the condition, or strike it.

Dissenting Justice Skoglund agrees with everything except Condition S requiring Defendant to repay charges for public-defender legal services. Not only is there no reasonable relationship, but it is “a blatant attempt as using probation as a debt-collection agency.” Her dissent notes that a condition requiring Defendant to repay amounts due for a public defender lacks a nexus to his criminal conduct or rehabilitation. The whole point in getting a public defender is because you can’t afford an attorney on your own. Revoking probation for not repaying the amount due for legal services is an “inappropriate consequence.”

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