State v. Yetha L. Lumumba, 187 A.3d 353

Background

Defendant Lumumba was convicted of felony sexual assault (incident in 2010) and, after a prior appeal reversing for resentencing, was resentenced in 2015 to eight years to life with most suspended and probation imposed.
The PSI recommended multiple "special" sex-offender conditions; at sentencing the court individually addressed and imposed several special conditions (modifying or striking some) and orally discussed many sex-offender conditions.
After sentencing, the written probation order included, in addition to the orally addressed special conditions, a standardized list of nineteen "standard" administrative probation conditions that were not read aloud at the hearing.
Defendant objected on appeal that (1) many standard conditions were imposed without oral pronouncement and without individualized findings tying them to the offense or rehabilitation, and (2) a special condition banning pornography/erotica and visits to adult establishments was vague, overbroad, and unrelated to his offense.
The State conceded several standard conditions lacked record support; the trial court’s treatment of the special pornography-related condition rested on generalized assertions by a probation officer that the restriction is standard for sex offenders.
The Supreme Court reviewed preserved issues for abuse of discretion and unpreserved issues for plain error, struck several standard conditions and the pornography special condition, and remanded others for clarification or tailored language.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether standard probation conditions listed only in the written order (not read at sentencing) violated Rule 43(a)/right to be present	State: imposition was harmless; many are administrative and valid without oral announcement	Lumumba: court violated right to be present and conditions not orally pronounced should be struck	No plain Rule 43(a) reversal; failure to announce was not plain error because defendant had notice and other remedies; some conditions nevertheless struck or remanded on other grounds
Whether standard conditions required individualized findings tying each condition to crime/rehabilitation	State: many standard conditions are routine supervisory conditions and need not be individualized	Lumumba: court failed to make individualized findings under 28 V.S.A. §252(a)	Court rejected wholesale requirement for particularized findings; record review sufficed; some conditions upheld, others struck or remanded based on record/support
Whether specific standard conditions lacked nexus to offense or were unlawful delegations	State: some conditions supported or fixable by remand; others conceded as unsupported	Lumumba: multiple conditions unrelated to offense or delegatory and should be struck	Court struck C, D, E, G, H, M, O, P, Q, R, S (State conceded); remanded I, K, N for clarification/remedy; upheld A, F, J, L and remaining administrative conditions
Whether special sex-offender condition banning pornography/visits to adult establishments was related, not vague/overbroad	State: remand to develop record showing nexus; asserted condition standard for sex-offender treatment	Lumumba: condition unrelated to offense, vague and overbroad	Condition 35 struck: record lacked individualized or expert evidence tying prohibition of otherwise lawful adult materials/venues to defendant’s offense or rehabilitation

Key Cases Cited

State v. Lumumba, 197 Vt. 315, 104 A.3d 627 (Vt. 2014) (prior appeal reversing sentence and remanding for resentencing to consider immigration consequences)
State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Vt. 2015) (standards for probation conditions; supervisory/admin conditions may be routine; delegation and tailoring principles)
State v. Cornell, 202 Vt. 19, 146 A.3d 895 (Vt. 2016) (sex-offender conditions require record support beyond blanket statements that conditions are standard)
State v. Levitt, 202 Vt. 193, 148 A.3d 204 (Vt. 2016) (preservation rules and plain-error review for probation-condition challenges)
State v. Streich, 163 Vt. 331, 658 A.2d 38 (Vt. 1995) (plain-error is limited to rare and extraordinary cases)
United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir.) (adult-pornography bans require record support; blanket bans may be plain error)
United States v. Salazar, 743 F.3d 445 (5th Cir.) (probation conditions banning sexually oriented materials must be supported by defendant-specific history or findings)