2016 VT 40
By Elizabeth Kruska
I was all charged up that this was another probation condition case, and it kind of is but it kind of isn’t.
Mr. Anderson was convicted in 2003 of sexual assault on a minor. He received a sentence of 19-20 years to serve, all suspended but 11 years. This means he would serve eleven years in jail and then be released on probation. If he were to violate his probation, the balance of his sentence could be imposed, less any credit. One of his conditions of probation was that he had to do the sex offender treatment program while in jail.
So, he gets to 2014 and entered the program (this wasn’t clear, but it is probably when he was eligible to begin the program based on the length of program clinically indicated and the portion of sentence he had remaining). He was suspended from it on June 10 for failing to admit responsibility for his actions. The suspension period was 90 days, and in order to get back in to the class, Mr. Anderson had to do a questionnaire consisting of five questions. He had to turn in the questionnaire no later than a week before the end of the suspension period. I took a look at the 2014 calendar, and it looks like the 90 day period would have been up on September 8. If he had to turn in the questionnaire no less than a week before the expiration of the 90 day period, that would be September 1.
July 11, though, Mr. Anderson’s probation officer filed a probation violation, alleging that Mr. Anderson was in violation of his probation for not having completed the program while in the facility. Mr. Anderson filed a motion to dismiss because he could show that he had never actually received a probation certificate setting forth his conditions. The court granted the motion, and asked the clerk to prepare a probation certificate. That happened and Mr. Anderson received and signed the certificate on July 29.
The opinion uses July 29 as kind of a marker in the history of this case for behavior before and after.
On August 27 (still a couple days before the week before the 90-day period), Mr. Anderson’s PO filed another probation violation alleging failure to participate in programming. Mr. Anderson filed another motion to dismiss, this time arguing that his probation conditions were not enforceable until after July 29 when he finally got the probation certificate. He also argued that it was impossible for him to comply with the requirement that he had to complete the program before the end of the jail part of his sentence because there wasn’t enough time left for him to do it. The court said that it was Mr. Anderson’s burden to show that it was impossible, and that he didn’t. So the court scheduled a merits hearing.
The probation merits hearing was held on December 10. The court found a violation. At that point Mr. Anderson still hadn’t completed the five-question questionnaire that he would have needed to do to get back in to the program. The PO testified that if he had done the questionnaire and, depending on the answers, he might have been found to be eligible to do treatment in the community rather than in jail.
SCOV looks at all this and says that the finding of a violation was appropriate. Even after July 29 when he finally received the probation certificate, Mr. Anderson didn’t do the five-question questionnaire that he needed to get in to the program. SCOV points out that even though there wasn’t enough time to start and complete the program, that he, at the very least, could have done the questionnaire. SCOV also points out that because the language of the condition includes that the program needed to be completed to the PO’s satisfaction, that it didn’t necessarily mean it had to be finished. Someone could, in theory, start a program, and then for reasons that are not the defendant’s fault, not finish, but the PO could still be satisfied with the work the person did do.
In a probation violation case, the burden is on the state to prove the fact of the violation. Then, if that occurs, the burden shifts to the defendant to prove that the violation wasn’t willful. Let’s make an example. Suppose the condition said, “go to counseling with Counselor Joe Smith.” Then Joe Smith dies from a heart attack, or some other reason having nothing to do with the defendant. Obviously the defendant can no longer fulfill that specific condition and it’s due to no fault of his own. Or, as SCOV points out, there could be situations where a person participates and gets a lot of good out of a particular program but doesn’t finish. The PO could be satisfied that the person got the benefit, even though it wasn’t finished.
In this case, Mr. Anderson argued that he did not complete the treatment program, but that it was not possible for him to do so, because he didn’t have enough time. When a court looks at a probation violation case, first it has to determine if the state can prove that a violation occurred. Then the burden shifts to the defendant to show that the violation was not willful or intentional. Running out of time is not something willful, so long as it’s not because of an intentional act by the defendant.
SCOV was not really feeling that argument here. Although Mr. Anderson was correct that he could not complete a lengthy program between July 29 and September 8, he could have at least done the five-question questionnaire that he was asked to do. He didn’t take necessary steps to re-enter the program. If he had done the questionnaire, SCOV might have looked at this differently. In fact, the PO testified that depending on the information in the questionnaire, it might have been possible for Mr. Anderson to do the sex offender treatment program in the community rather than in jail.
SCOV also points out that even though he didn’t have a written probation order until July 29, Mr. Anderson had actual knowledge that he was supposed to participate in the sex offender treatment program. He had been a part of the program, was removed from the program, and was given instructions about how to get back in. Neither before nor after receiving the probation certificate did he complete the five re-entry questions.