Friday, March 18, 2016

Probation Conditions: Yes, We’re Doing This Again

State v. Careau

Not even kidding. This is another SCOV reversal of an overbroad probation conditions regarding restrictions on residence. This is something like the eighty-fourth of these cases in the last couple years. OK, maybe eighty-four is a little on the high side, but it’s a lot. One of these opinions is going to come right out and say to the trial court lawyers and judges, “oh, for heaven’s sake, we actually mean it when we say stop doing this and that means actually really stop doing this.” It’s a little bit like having a cat who likes to go on the countertop. You can tell the cat every single time not to go up there, and you can move him and put him on the floor, but he’s going to keep jumping onto the counter. Not that I live with any such cat who does that, or anything.

Mr. Careau got charged with one count of sexual assault on a minor and a count of unlawful restraint. He and his attorney worked out a deal where he pled guilty to the sexual assault and a count of unlawful restraint and would get sentenced to five to fifteen years to serve, all suspended but eighteen months to serve. Effectively, this means he would spend eighteen months in jail, and then come out on probation. An additional count of unlawful restraint got dismissed. A pre-sentence investigation was done and the corresponding report was filed with the court. Mr. Careau objected to some things in the report, and filed the objections in writing. Also, Mr. Careau indicated in writing that he was going to argue for a lesser sentence than had been agreed upon.

The State wasn’t having this. The State said that they had come to an agreement, like parties to a contract, and that the Court needed to impose the sentence. The trial court said that under the rule on pleas that Mr. Careau could certainly ask the court to impose a less onerous sentence. The judge wasn’t totally sure about how this would work in a binding plea agreement. The courts all have these pre-printed plea agreement forms that indicate the parties have read and understand the agreements. The form also says “this is a binding Rule 11 Agreement,” but SCOV didn’t mention that specifically.

The State filed a motion asking the court to impose the sentence as written. The State’s position was that the Defendant would be in breach of their express agreement if he argued for something less. The State also said that if the court denied the State’s request to impose the agreed-upon sentence that it would withdraw from the plea agreement. The court thought about it, and decided that Mr. Careau actually was bound by his agreement, and that if he changed his mind that the State could withdraw from the agreement.

So, they had a sentencing hearing a month or so later. Mr. Careau raised a bunch of objections to various probation conditions, but did not object to a condition that said he could only live and work in places approved by probation. The judge imposed a sentence, sent Mr. Careau to jail, and this appeal followed.

Mr. Careau appealed the probation condition that restricted the residence and workplace, arguing that for the court to have imposed that was plain error (spoiler alert: it was). He also argued that the trial court should have allowed him to argue for a lesser sentence despite the plea agreement.

SCOV deals with the probation condition issue very quickly. Since Mr. Careau didn’t object to it at the time it was imposed, SCOV can only review for plain error. SCOV had already dealt with this issue about a year before in another case, and dealt with how a condition regarding residence and employment should be handled by trial courts. That procedure didn’t happen here, so SCOV says this piece gets reversed for the trial court to either justify the condition or get rid of it all together.

I really wonder if the next probation condition probation case is going to go like this:

Stop doing this. 

SCOV then turns to Mr. Careau’s argument about arguing for a downward departure from an agreed-upon sentence. Vermont Rule of Criminal Procedure 11 says that if the court accepts an agreement, that it will impose the judgment and sentence called for, or a less onerous one. Rule 32 allows a defendant to allocute, or to tell the court whatever he or she would like to say that would be relevant to sentencing before the court imposes sentence.

SCOV looks at the rules together, along with some case law, and decides that plea agreements are contractual in nature, and that the parties are entitled to rely on the express terms of the agreement. If a defendant decided he or she wanted to argue for a lesser sentence, that argument would be violating the agreement.

Defendants, of course, can choose to have a contested sentencing hearing. In that situation, both sides make their respective arguments to the court so the judge can create a sentence. A lot of times that situation will have a cap – meaning the parties agree a sentence won’t be higher than a certain sentence. That’s not what went on in this case. Here, there was an actual firm set of numbers that was said to have been agreed-upon by the parties.

SCOV says the rules Mr. Careau cited don’t apply to the situation here. Rule 11 says that the court is not bound to an agreement, meaning the court is allowed to impose the agreed-upon sentence or could impose a lesser sentence. So, suppose you’ve got a person charged with disorderly conduct who ended up getting held in jail overnight before an arraignment. The parties could agree that the person would serve 5 days in jail as a sentence. The judge might look at that and say, “meh, you know what? Overnight was enough” and impose that lesser sentence. It doesn’t mean that the parties, in that situation, could agree to 5 days in jail, and then the defendant pops up and makes an impassioned plea for just an overnight.

SCOV also cites a federal case where a defendant argued for a downward departure at sentencing, despite an explicit agreement that he wouldn’t do that. The remedy in that situation is that either the agreement would have to be imposed as agreed-to, or the government could withdraw from the contract.

Finally, SCOV says that allocution is important, but isn’t a time for the defendant to argue for something different than is agreed-to. If that were the case, the state or government would never have an incentive to enter into agreed-upon sentences. Ultimately, of course, that would hurt defendants in the long run if parties could never come to agreements.

So, SCOV sends back that pesky probation condition issue, but affirms the rest of the sentence.

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