In re Mark Jankowski, 157 A.3d 573

Background

In Nov. 2010 petitioner pled guilty to sexual assault on a child and received a 5–20 year sentence, suspended except for 3 years, plus probation.
A violation-of-probation (VOP) merits hearing in Dec. 2011 found a probation condition violated; the court announced a future sentencing/disposition hearing.
At the Mar. 13, 2012 sentencing hearing, after a brief recess, counsel for the State and petitioner reported an agreement: revoke probation, impose a 4–20 year straight sentence (credit for time served), and petitioner would not appeal; the court accepted the agreement.
Petitioner filed a pro se, then amended, post-conviction relief (PCR) petition claiming the court never held a sentencing/disposition hearing, he did not waive that hearing, and he was never personally addressed.
The PCR court granted summary judgment to the State; the appellate court reversed, holding petitioner’s due process rights at the revocation/disposition stage were not validly waived and the court exceeded its statutory sentencing authority.

Issues

Issue	Petitioner’s Argument	State/Respondent’s Argument	Held
Whether due process requires a separate hearing (or equivalent procedural protections) at the disposition/revocation stage after a finding of VOP	Petitioner: Morrissey and progeny require procedural protections at both the violation and disposition stages; he had a right to contest revocation and present mitigation	State: Protections afforded at the violation/adjudicative stage were sufficient; no separate requirement after finding of violation	Held: Due process extends through disposition; probationer has right to contest revocation and present mitigating evidence before revocation is imposed
Whether a waiver of the right to contest revocation (and related rights) can be effective when made by counsel without the defendant’s on-record, personal assent	Petitioner: Waiver of these fundamental rights must be knowing, voluntary, and made by the defendant personally (or at least the record must show defendant’s affirmative consent)	State: Counsel’s statements in defendant’s presence can effectuate waiver; no per se requirement of on-the-record personal colloquy	Held: Waiver must be knowing, voluntary, and intelligent; the record here does not show such a waiver where defendant never spoke or was addressed and the attorneys negotiated during a short recess
Whether the trial court had authority to impose a new, different sentence as part of the VOP disposition (i.e., impose a sentence other than the one originally suspended)	Petitioner: The amended sentence (4–20 straight) was effectively a new sentence and not authorized by statute	State: The parties’ agreement permitted the court to accept the sentence	Held: Trial court exceeded statutory authority; under 28 V.S.A. § 304 and Vermont precedent, court may revoke and require original suspended sentence to be served but may not impose a different new sentence
Whether petitioner is entitled to relief from the VOP revocation and resentencing based on the flawed waiver and illegal sentence	Petitioner: Yes — vacate revocation and remand for proper disposition and sentencing hearing	State: No — the disposition was proper and petitioner waived rights via counsel	Held: Yes — reversed and remanded for a new determination on revocation and, if revocation is ordered, a new sentencing hearing

Key Cases Cited

Morrissey v. Brewer, 408 U.S. 471 (1972) (establishes due process protections for parole revocation including right to hearing on whether revocation is warranted)
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (applies Morrissey protections to probation revocation)
Black v. Romano, 471 U.S. 606 (1985) (reiterates right to show mitigation and that procedure is required at the revocation/disposition stage)
State v. Talton, 737 P.2d 409 (Ariz. Ct. App. 1987) (probationer constitutionally entitled to separate mitigation/disposition hearing after violation finding)
State v. Pratt, 173 Vt. 562 (Vt. 2002) (mem.) (court lacks authority on VOP to impose a different sentence than originally authorized)
State v. Duffy, 151 Vt. 473 (Vt. 1989) (attorney may control procedural matters but client controls substantive decisions like whether to contest revocation)
State v. Buck, 139 Vt. 310 (Vt. 1981) (court cannot enforce an agreement that conditions probation on surrendering statutory right of appeal)
Hersch v. State, 562 A.2d 1254 (Md. 1989) (waiver ineffective where defendant did not personally admit violation or personally waive right to contest on the record)