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By Elizabeth Kruska
Here’s a new twist on an old theme: probation. For a little while there SCOV was deciding a probation-related case almost every other day. This case answers a probation-related question that does come up from time to time but isn’t as common as some of the other probation issues we frequently see.
When we’re talking about probation, there are a couple different ways to get there in Vermont. Someone could be sentenced to a suspended sentence and supervised on probation with a requirement to complete certain conditions for a period of time. Often, it’s a fixed period of time, sometimes it’s an indefinite period. Let’s suppose someone gets a sentence of 6-12 months, all suspended, and a probation term of 2 years. That means they’re on probation for 2 years, and if they screw up on probation, they could have to serve that 6-12 month sentence in jail. If the person does well, or with permission of the court, they can be discharged from probation supervision earlier than their ordered term.
The other way someone ends up on probation is with a deferred sentence. Deferred sentences operate a little differently. A person is adjudicated guilty, but isn’t sentenced just yet. Sentencing gets deferred for a certain period of time. During that period of time, he or she could be supervised on probation, and have to follow certain probation conditions. When the person reaches the end of the deferred sentence period, if they’ve complied with their conditions, the conviction gets expunged from the person’s record and the matter is treated as if it didn’t happen. The other side of the sword, though, is that if the person violates probation, since they’ve already been adjudicated guilty, they just get sentenced at that point and the conviction stays on their record.
That’s a lot of words to get us to this case, but it’s helpful to show that even though functionally a person on probation has the same rules to follow and everyday impacts on their lives, the structure of how that person got there may be different from case to case. And how that person gets done with being on probation differs based on how they got there in the first place.
So here, the defendant was charged with two felony counts of lewd and lascivious conduct. The parties worked on the case and in the end agreed upon an amendment to two misdemeanor counts of prohibited acts with a “4 year deferred sentence.” Going back to what I explained above, that means that Defendant entered pleas, and for four years, had to be on probation-level supervision with conditions to follow, and if he completed it successfully, the charges would be expunged from his record. Seems like a pretty good outcome.
Two years in to the deferred period, Defendant filed a motion seeking to get his deferred period and supervision shortened. His argument was that the conditions in his probation were making life difficult for him; he had some problems getting a job due to certain association and computer use restrictions, and had difficulty in leaving the state. He took the position that continuing to keep him on probation for the full period of four years wouldn’t serve a useful purpose anymore.
The State objected and argued that the only recourse if Defendant wanted to back out at that point, would be for the court to impose a sentence. That’s obviously not what Defendant would want to do, since it would put permanent convictions on his record. In any case, the court denied the motion, indicating it didn’t even have authority to grant the relief Defendant requested.
So, Defendant appeals. SCOV affirms the trial court.
Defendant argues that the deferred-sentence statute doesn’t specifically prohibit early discharge. And, not only that, there’s a separate statute that does allow for early discharge from probation when the court finds it’s warranted. Defendant argues that people on probation as a result of a suspended sentence can get done early, so it seems fair that people with deferred sentences could, also.
The problem is that the probation here is fixed to a period of time in which sentencing is deferred. Defendant argues that he, and others similarly situated, should be able to have both their deferred periods and probation supervision periods shortened by the court, or if the court wouldn’t do the former, just do the latter.
SCOV looks at the statutes and determines that the trial court doesn’t have the ability to reduce the term of deferment. The statutes don’t provide that kind of discretion. The other thing is that there are times when a deferred sentence can be ordered by the court only if the parties agree. In that case, the parties’ agreement is a contract, and the court can’t later go in and undo it. Even though there is also a statute that provides for reconsideration of a deferred-sentence term, it doesn’t apply here because there are strict time limits, and Defendant filed his motion outside that time.
Last, SCOV notes that the deferred-sentence statute requires compliance with the probation supervision conditions for the full period of the deferred term. Even if SCOV thought it was an acceptable thing to do to shorten the probation part, the courts’ hands are tied by the statute.
SCOV found a similar case from Colorado that was decided in the same way. The Colorado court reasoned that the defendant is the one getting a pretty substantial benefit from the deferred sentence at all (that the charges go away if successful), and that the law didn’t allow unilateral action by the court to confer an additional benefit by shortening the time frame beyond the original agreement.
So, moving on, SCOV then considers whether the term of deferment can be shortened without the State’s consent, and they decide that’s not possible, either. SCOV finds no statutory authority for the court to be able to do this. SCOV also finds that where the original deferred sentence was made by agreement, the court can’t then re-do the parties’ agreement because one side no longer likes the burden of the agreement.
SCOV went on to point out there are good reasons to hold Defendant to the bargain he made in agreeing to the 4 year deferred sentence. For example, it would probably prevent the State from making agreements with future defendants, if there’s a track record of the court undoing those agreements later when a defendant doesn’t like it anymore.
SCOV then turned to a statement on a preprinted probation form (this is where the mischief happens with the probation cases). It said that the defendant was on probation “until further order of the court.” Defendant took that to mean that the court could make an order at any point dismissing him from probation. SCOV says, “thanks for the creative argument, and nice try, but no.” That’s because it’s inconsistent with the deferred sentence statute that we’ve already talked about.
So, all this to say that in a situation where the parties agreed to the deferred sentence, and it has clear terms, the court can’t undo either the length of the deferred or the probation supervision.