Tuesday, April 19, 2016

More Probation Conditions

State v. Gauthier2016 VT 37

By Elizabeth Kruska

In this episode’s installment of probation condition woes, SCOV affirms some probation conditions, saying that the defendant had adequate notice of his conditions, and that they were not contradictory or vague.

When Mr. Gauthier was 20, he got charged with a sexual assault on a minor and furnishing alcohol to a minor. It was alleged that he and a fifteen-year-old young woman drank alcohol and smoked pot together, and then had sex in the back of a car. Mr. Gauthier agreed this happened, and in exchange for a guilty plea to the sexual-assault charge, got a five-year-deferred sentence. The alcohol charge got dismissed.

A word about deferred sentences; they can be a double-edged sword. Essentially, what happens is a defendant pleads guilty to a charge and then is placed on probation for a period of time while any actual sentence is deferred. If the person makes it all the way through the probation term without any violations or new charges, the charge gets expunged from the record and treated as if it never happened. However, if the person does violate probation, a violation gets filed and if a violation is found, a sentence gets imposed and the charge stays on the person’s record. This is generally a good deal and totally puts the defendant in the driver’s seat as to whether or not the charge gets expunged.

About seven months after getting his deferred sentence, the State filed a probation violation, alleging he had gone out of state when he was not allowed to do that. He admitted the violation and the court imposed a sentence of zero to four years, which was all suspended. His original probation conditions got re-imposed, and some new conditions relative to sex offenses also got imposed. The new conditions were all written on a list, and the list had a check box in front of each item. None of the items were checked. This is starting to feel like déjà vu all over again. However, Mr. Gauthier signed off on the conditions, indicating that he understood them and did not appeal.

A flurry of violation complaints got filed based on new behavior, alleging drinking alcohol, accessing and loitering in places where children congregate, and violating his curfew. The court held a hearing, found violations, and revoked Mr. Gauthier’s probation, imposing the zero to four year sentence.

Mr. Gauthier appealed, making several arguments.

First, he said that the conditions were not enforceable because he did not receive a certificate setting forth his conditions. SCOV says no to this argument. They indicate that he didn’t preserve this argument in the trial court. The right standard of review here is plain error, and this doesn’t rise to the level of plain error. SCOV says that Mr. Gauthier had full notice of the probation conditions imposed and that were expected of him.

Mr. Gauthier also appealed findings with respect to particular violation allegations. Probation violation findings are mixed questions of fact and law. SCOV upholds legal conclusions if there is credible evidence to support the factual findings, and the factual findings support the legal conclusions.

It appears Mr. Gauthier tried to attack the alcohol condition, but SCOV says this is not permissible at this stage of the proceedings. On one hand, he had a condition that said not to drink to the extent it interferes with himself or others. On the other hand, he had a stricter condition that said not to drink at all. He raises confusion, saying that the two conditions say two different things, and it’s unclear what he’s supposed to do. SCOV says, “follow the stricter condition and you’ll always be able to follow the lesser.”

Moving on to another violation, the Department of Corrections believed there to be a violation of the “don’t go where kids congregate” condition when Mr. Gauthier went to the Tunbridge World’s Fair, or as we in the middle of the state refer to it, “The Fair.” As if there’s any other fair. The facts were that the PO texted him and specifically told him not to go to The Fair. Then the PO went to The Fair, because where else are you going to eat fried dough and watch an ox pull (if you’re lucky enough to get a seat, that is), and saw Mr. Gauthier there.

Mr. Gauthier appeals this finding and raises an issue for the first time on appeal. SCOV again says that it’s got to be a plain error review, since it wasn’t raised below. Mr. Gauthier argued that the list of places he was not allowed to go was an exclusive list, and that it did not include The Fair. His argument hinges on the use of “i.e.” in the language of the condition. He argues that since it says “i.e.” which means “id est” which means “that is,” that the list that follows is an exhaustive list. If the list had been preceded by “e.g,” it would have meant that the list that follows is simply a list of examples. Confused about when to use “i.e.” instead of “e.g.”? Don’t be! Here’s a brilliant, handy way to keep these sorted out.

Had Mr. Gauthier had this handy poster from The Oatmeal, he’d have known that “i.e.” is meant for clarifying a statement, rather than making an exhaustive list. SCOV points out that the list ended with “etc.” meaning that there are probably more places, but that they’re not on the list. SCOV also says that the condition is not overly broad or vague. They bust out the ol’ Merriam-Webster and look at the ordinary definition of “congregate” and decide that it’s a common enough definition that Mr. Gauthier would have known what the condition means. A similar condition has been struck down in some jurisdictions as being overbroad. This one is okay, though, because the illustrative list of locations that follows helps to clarify what the condition means.

Last, Mr. Gauthier argued that the condition impermissibly delegated too much power to his probation officer. On one hand, the courts can’t give all the power to the probation officers. On the other hand, POs are often in the position to know best what’s really going on in the community and in the probationers’ lives, so they do have some discretion in implementing conditions. SCOV says that between the condition and the PO telling him not to go to The Fair, he had sufficient notice of what he could or couldn’t do.

So, SCOV affirms.

Justice Robinson writes separately, partly concurring and partly dissenting. Justice Skoglund joins in. Justice Robinson finds that there was no error with respect to the alcohol conditions, but disagrees with the majority’s analysis.

In terms of the alcohol condition, Justice Robinson sees where there could be some confusion. The “do not consume to the extent it interferes” condition would suggest that someone could have a glass of wine with dinner so long as it doesn’t interfere with his or someone else’s welfare. The subsequent condition, which is a complete prohibition on alcohol, was listed on a page with an unchecked check box. These are two inconsistent conditions. A defendant can run afoul of conditions when they are not consistent with one another.

Here, there was a long list of conditions with check boxes. None of them were checked, and all of them were imposed, which contradicts SCOV’s gentle reminder from State v. Putnam that probation conditions have to be tailored to the individual case and circumstance.

All that having been said, though, this isn’t plain error, so Justice Robinson and Justice Skoglund agree that the probation violation finding was proper.

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