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| Wave (waive?) it wide, and high. |
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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