Sunday, November 29, 2015

Mama Tried

State v. Lucas, 2015 VT 92

By Jeffrey M. Messina

There are generally certain probation requirements placed on a defendant who enters into a deferred sentence. For those not "in-the-know," a deferred sentence is one where a defendant pleads guilty, then jumps through a series of court-imposed hoops for a predesignated amount of time, and upon successful completion of said hoop-jumping, has the charge(s) dismissed from his or her record. Some requirements are specific to the particular defendant while others are more or less universal. This case is an appeal from a trial court ruling finding that defendant violated two conditions of his probation, which resulted in the revocation of his deferred sentence.

The defendant in this case was charged with sending inappropriate pictures to the wrong audience. He pled guilty to a misdemeanor, accepting a deferred sentence for two years, with specific probation requirements relevant to this appeal, that: (1) required him to notify his probation officer within two days of a change of address; and, (2) that he could not change his address without the prior permission of his probation officer.

The State filed a probation violation against defendant based on these facts: defendant’s mother and probation officer (PO) played a bit of phone tag, but the initial call from mom was meant to tell the PO that her son had moved in with her. The PO subsequently investigated and approved the residence. After hearing, the trial court determined that that defendant moved to his mother’s home before PO approved the new residence. On such basis, the court denied defendant’s motion to dismiss, struck the deferred sentence and imposed a zero-to-one-year suspended sentence. 

Defendant appeals. The appeal is “on the record,” so SCOV will reverse only where plain error exists. (Hint: It doesn’t find any.)

On appeal, defendant first argues that the conflicting probation requirements—one requiring that he tell PO he moved within two days of doing so; the other requiring permission prior to move—did not provide him with adequate notice of conduct that would establish a violation. Defendant also argues that the condition requiring prior approval to move is “unduly restrictive of his liberty, and an overly broad delegation of authority” to his PO. Finally, he argues that because the residence was subsequently approved, the violation shouldn’t count. SCOV addresses each in turn—quickly.

SCOV disposes of defendant’s first argument with the tried-and-true "too-bad-you-forgot-to-mention-that-below" approach. Since defendant failed to raise this argument below, SCOV need not consider it. Defendant’s second argument meets a similar fate.

Here, SCOV points out that defendant entered into a deferred-sentence agreement and therefore had the opportunity to challenge this PO delegation-of-authority condition at sentencing. Because he failed to do so, attempting to do so with the trial court (or with SCOV now) amounts to an impermissible collateral attack of his probation conditions. SCOV then looks to defendant’s third and final argument.

SCOV reiterates that in a case like this, a trial court’s ruling “will not be set aside absent a finding of abuse of discretion,” and finds none here. While the Court acknowledges that the order of events indeed had significant consequences for defendant, it “cannot conclude that the trial court abused its discretion in finding a violation of probation and revoking [the] deferred sentence” because, after all, the defendant had been informed of his probation conditions, signed those conditions, and ultimately changed his residence without the prior approval of his PO.

Be careful out there, kids.