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| Just pretty. Nothing to do with probation |
By Elizabeth Kruska
The takeaway message I get from this particular opinion is this: If you have a legal question, ask a lawyer. Because if you ask someone else, they might give you an answer that isn’t correct, and you might do something (or not) because you think it’s legal but it’s really not.
Here’s what happened to Mr. Stern. He pled guilty to a domestic assault charge and received a deferred sentence. He was on probation for one year. At some point during his probation he asked his probation officer if he could possess a firearm. The PO is recalled as having responded along the lines of, “I’m not a lawyer, but I think it’s okay.” Nope. Not legal. In possibly more than one way.
But, Mr. Stern didn’t call his lawyer to find out the answer to the question. Instead, he motored forward, possessing a firearm in violation of state law (and possibly also in violation of federal law, but that’s not the question we need to deal with in this particular case). On three different occasions he encountered the State police, and each time he told them he had a firearm.
This catches up to him later, when a violation of probation is filed alleging he violated a condition of probation that says “You must not engage in criminal behavior.” Alas, under 13 V.S.A. §4017, a person convicted of a domestic assault is prohibited from possessing a firearm. Therefore, even though he didn’t get charged with a new crime, he did “engage in criminal behavior” by possessing a firearm. He had a probation hearing, and the judge found the violation against him.
He appeals, arguing that he got some incorrect advice from his PO. He relied on that advice and did what he believed was permitted because of what his PO told him. And also, even if he violated his probation, he didn’t do it willfully.
There’s a majority opinion and a dissent. The majority affirms, so the violation finding stands.
Here’s how it goes with probation violation hearings. The State has to prove that there was a condition and that the defendant had notice of it. They have to prove that the defendant did (or didn’t do) something in violation of the condition. Then the burden shifts to the defendant to show that what he did or didn’t do was willful.
Lemme give you an example. Suppose a defendant has a condition that says “you must complete residential drug treatment.” And suppose the defendant goes to the treatment facility, but has to leave because he has a heart attack and has to be hospitalized. Sure, the probation officer could file a violation because the defendant left the treatment facility prior to completion. But then the defendant could show that he didn’t leave because he was being a scofflaw but because he needed emergency medical treatment. This is kind of an extreme example, of course, but certainly shows that there are genuinely times when a probationer can’t comply with a condition for reasons that are outside his or her control.
So, here, Mr. Stern tried to make the argument that he didn’t know he couldn’t have a gun, and when he asked for clarification, his probation officer confused the situation with his answer. It’s not a defense to say he didn’t know it was illegal for him to have a gun, because generally speaking, ignorance of the law is not a defense. His probation certificate said not to engage in criminal behavior, which SCOV finds to be pretty clear. SCOV does not find that whatever it was the probation officer said here was sufficient to supersede the condition as written.
SCOV also finds that Mr. Stern probably didn’t mean to violate his probation, but that he couldn’t present sufficient evidence to show that his action wasn’t willful. He had a firearm that he meant to have in his possession. It’s not like he accidentally picked up the wrong luggage at baggage claim and ended up with someone else’s stuff. He asked about having a gun, and three times he had a gun when he talked to the State Police.
So, with all this, the majority affirms.
Justice Robinson dissents.
She thinks that a defendant should be able to use his reliance on his probation officer’s advice as a defense.
Even though generally ignorance is not a defense, there can be exceptions to that. For example, there’s the concept of the “due process reliance doctrine.” That can be invoked if there is some conduct that’s legal and some that isn’t, and there’s official affirmative representation that conduct is legal, a person can rely on it as a defense. That’s close to what happened here. The probation officer had authority over enforcing Mr. Stern’s probation order. When Mr. Stern asked a question about conduct, the probation officer told him that having a firearm was permissible conduct. Mr. Stern relied on that and when it turned out to be incorrect, used it as a defense.
The dissent expands quite a bit on this concept and basically comes down to this. Probation is meant to be rehabilitative, and to assist the probationer in leading a law-abiding life. Mr. Stern, a probationer, was trying to lead a law-abiding life by asking his probation officer what he could and couldn’t do. The dissent also points out that it’s not as if Mr. Stern asked if he could go commit an armed robbery – that’s obviously unlawful and would obviously be covered by the condition proscribing engaging in criminal behavior. Unfortunately, the advice he got regarding possessing a firearm – which for many people is completely lawful – was not correct. Because he relied on this incorrect advice, it led to a probation violation. The dissent would have allowed the reliance as a defense.
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