Monday, May 1, 2017

Wave That Waiver

Wave (waive?) it wide, and high.
In re: Jankowski


Let’s stroll through how a criminal case proceeds. Normally criminal cases start with an allegation, which must be proven by the State. If the defendant is convicted, then he or she gets sentenced. If there’s a sentence that involves probation, there will be probation conditions or requirements. If the defendant then violates one or more terms of probation, we sort of start over again with having a hearing where the State has to prove the merits of the violation allegation. If the State proves the violation the case goes to sentencing. If something goes legally wrong relative to legal issues within the merits or sentencing hearing, normally the defendant is allowed to appeal. If something goes wrong collaterally to the proceeding, the defendant can file for post-conviction relief (PCR). If the PCR is granted, the case jumps back to the stage of the case where things went sideways.

In this case, Mr. Jankowski filed a PCR based on things that happened during a probation violation. In 2010, he pled guilty to a sexual assault charge and was sentenced to 5-20 years, split with 3 years to serve. That means he’d serve 3 years in jail and then be released on probation. If he were to violate his probation and have his probation revoked, his full sentence of 5-20 years could be imposed. Under normal circumstances he’d be eligible for release at his minimum, or, the 5 year mark, but would be on supervision for the balance of time between 5 and 20 years.


In 2011, roughly 10 months after he was sentenced, Mr. Jankowski was served with a probation violation. The opinion doesn’t specify whether he was in jail or not at the time, but it is worth noting that where there’s a probation sentence split with jail, that probation conditions apply while the person is in jail before release. By the end of the probation violation portion of this case he did have credit toward his sentence, and that does become a relevant in a moment.

In late 2011 there was a hearing on the merits of the probation violation. The judge took the matter under advisement and issued a written decision finding a violation. At the end, the judge included a sentence saying there needed to be a sentencing hearing.

A sentencing hearing was scheduled for sometime in 2012. They didn’t actually have a full-blown hearing, though. Mr. Jankowski was present with his lawyer. The parties went on the record and said they had an agreement where Mr. Jankowski’s sentence would be transformed from 5-20 years split with 3 years to serve to 4-20 years to serve. There was some mention about how much credit he had. Reading between the lines, I’m guessing he was close to having served 4 years, and that by revoking the probation and making his minimum 4 instead of 5 years it put him closer to a minimum release date with furlough-level supervision. There are times when this sort of sentence makes a lot of sense, and this might have been one of them.

The problem, though, was that it wasn’t clear that Mr. Jankowski agreed to this. His lawyer told the judge this is what they wanted to do. The lawyer said it was discussed and that Mr. Jankowski was A-OK with the situation. The judge went along with it, imposed the sentence, and that was the end of this story.

Oh, and Mr. Jankowski may have waived his right to appeal, as well, but there wasn’t a lot of discussion about that.

He filed a PCR with a complaint that the judge did not address him directly during the hearing. The trial court that heard the PCR denied the complaint, saying that once there was a violation of probation (VOP) merits hearing, Mr. Jankowski had had his due process and that was it. He appealed, and SCOV reversed sending the case back to the trial court for a new VOP merits hearing and sentencing.

SCOV doesn’t say specifically that the court has to address the defendant personally during a VOP sentencing hearing. But what is clear, based on Vermont and federal case law, is that a defendant is entitled to process. He’s entitled to an evidentiary hearing on the merits and an evidentiary hearing at sentencing. A defendant, of course, can waive that, but the court has to make a finding that such a waiver is knowing, voluntary, and intelligent. The court will look to the totality of the circumstances surrounding the waiver to make a determination about whether the waiver is valid.

SCOV found that what happened here was not a knowing, voluntary, and intelligent waiver. The hearing lasted about 10 minutes, 7 of which was spent with the two lawyers talking to each other, and maybe with the defense lawyer also talking to the defendant (although this is unclear). The rest of the time was the lawyers talking to the judge and explaining the plan to amend the sentence. The defense lawyer said this had been discussed with the defendant and the defendant agreed. The defendant, who was present in court, never said anything. He wasn’t asked anything and he didn’t volunteer anything.

The problem is that for Mr. Jankowski to have had his due process rights fulfilled, he would have needed to have had a hearing. SCOV surveyed federal case law and made an analogy to the parole context. Parole hearings and process are similar, and the United State Supreme Court found that there must be the two steps; a finding on the merits of the allegation and a hearing on the sentence if a violation is found. The federal rules of criminal procedure reflect this procedure. Vermont’s rule is patterned after the federal rule, which SCOV points out, and reasons that Vermont would need to follow the way the federal system handles this kind of hearing. There is also some support from other courts in other states to indicate that the federal parole process guides how states ought also handle their parole and probation hearings. Vermont is no different, and due process demands that a probationer get a merits and a sentencing hearing.

Alternatively, a defendant can waive this process. But the waiver is personal to the defendant, and it has to be clear that it’s what the defendant wishes to do. On the record before SCOV, they couldn’t find that there was enough evidence to support a knowing, intelligent, and voluntary waiver on the part of the defendant. Since this was insufficient, the court reversed.

The other thing is that maybe this sentence structure wasn’t legal. There’s a period of time after sentencing when reconsideration is possible, but this was way outside that time frame. By statute, the court has only a couple options at sentencing after a probation violation is found. The court could continue the person on probation, possibly adding or changing some conditions of probation. The court could give the person a stern talking-to (which maybe the court would do anyway). The court could re-suspend some of the sentence with some jail. Or the court could, in its discretion, revoke probation and impose the whole underlying sentence.

There’s nothing in the statute that says the court can re-work the sentence and impose something other than the original sentence structure. So, this business about making the sentence go from 5-20 split with 3 years to serve to 4-20 years was not the right thing to do, even though the parties agreed. SCOV doesn’t spend a lot of ink on this, though, and I’m guessing it’s because by the time it got to the appeal, Mr, Jankowski was probably well past his original minimum of 5 years anyway, making it moot.

So, SCOV reverses the denial of the PCR and sends the case back for another violation of probation proceeding.

There’s a separate concurrence/dissent. Judge Bent was specially assigned, and wrote this opinion, joined by Justice Skoglund.

This opinion agrees that in order to determine whether the waiver was knowing, voluntary, and intelligent, it is necessary to examine the totality of the circumstances surrounding the waiver. It was a little confusing about whether there’s a necessity to address the defendant personally or not. On one hand, the majority says no, but then points to the fact the defendant was not addressed personally as a factor in determining whether the waiver was valid.

Judge Bent finds that the record below actually was sufficient to determine whether there was a valid waiver, and would have so found. It appears that one persuasive factor for Judge Bent in opining that the waiver was valid had to do with the sentence amendment and Mr. Jankowski’s reaction (or lack thereof) to it.

When Mr. Jankowski got the new sentence of 4-20 years, he wasn’t prejudiced by that change. It sounds like he had credit for time served – probably close to 4 years’ worth of credit. Getting this amendment would have done two very practical things for him (the opinion doesn’t note this, but I will). First, it would get him off probation, which probably would have lasted the rest of his life. Having a finite end, or max date, means he knows what the light is at the end of the tunnel and at the end of the sentence he’d be done with supervision by the Department of Corrections. Second, he would be closer to his new minimum of 4 years, and eligible for release sooner than if it stayed at 5 years. That doesn’t mean he’d get out for sure, but if he was eligible for release it would be sooner rather than later.

Mr. Jankowski didn’t complain that he didn’t like the sentence and he didn’t complain that his lawyer somehow misrepresented that he agreed to the amended sentence. And that’s because there wasn’t any prejudice from it. If Mr. Jankowski didn’t get a benefit from an amended sentence, and didn’t like it, or was upset that his lawyer misrepresented his position somehow, he would have spoken up. But, he didn’t, and this silence helped the concurring/dissenting portion of the court opine that this was actually a valid waiver.


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