Lead Opinion
¶ 1. Defendant Scott Blaise appeals from the decision of the Chittenden Superior Court, Criminal Division, that he violated three conditions of probation for his alleged failure to do the following: (1) adequately participate in counseling as directed by his probation officer; (2) pay required fines; and (3) complete 140 hours of community sendee. On appeal, defendant argues that neither the court nor his probation officer imposed upon him a probation condition requiring him to attend and complete counseling at Teen Challenge, the program he stopped attending, and that the State failed to meet its burden of proving that he violated conditions related to community sendee or the payment of fines. We conclude that the State failed to prove that defendant violated any of the probation conditions for which he was charged and that the errors were not harmless because of a later admitted-to violation. Accordingly, we reverse.
¶ 2. The material undisputed facts are as follows. On May 17, 2007, defendant pled guilty in Grand Isle District Court to several charges: one count of driving with a suspended license, one count of grossly negligent operation of a motor vehicle, and one count of violation of conditions of release. The court sentenced defendant to a total of two to four and a half years, all suspended with probation. The probation conditions included a condition that if a probation officer or the court ordered defendant to go to any counseling or training program, he was required to do so and to participate to the satisfaction of his probation officer. Special conditions also required defendant to complete forty hours of community service and to pay certain fines and surcharges. Defendant was assigned to a Burlington probation and parole officer.
¶ 3. In April and June 2007, while on probation from the Grand Isle convictions, defendant was charged with several new crimes in Chittenden District Court. On October 1,2007, he entered into a plea agreement involving the following charges: two counts of driving with a suspended license, one count of leaving the scene of an accident, and one count of
114. Before entering into the plea agreement covering the Chittenden charges, defendant enrolled himself in Teen Challenge, a faith-based residential counseling and substance abuse program located in Johnson. In August 2007, he reported to his Burlington probation officer that he was attending this counseling program. On October 10, defendant and the probation officer signed a probation contract. The contract stated that defendant was enrolled in Teen Challenge but did not address whether such counseling was required. It also contained requirements with respect to payment of fines and community service.
115. The Burlington probation officer initially continued to be assigned to defendant after he pled guilty to the additional charges in Chittenden County in October 2007. However, because defendant was attending Teen Challenge in a different county, his probation case was transferred later in October to the Morrisville probation and parole office, and he was assigned a Morrisville probation officer.
116. In January 2008, Teen Challenge notified the Morrisville probation officer that defendant had left the program, and the officer filed a violation of probation (VOP) complaint in defendant’s Grand Isle ease, alleging that defendant had violated probation by leaving Teen Challenge without reporting any change of address to his probation officer. Thereafter, in March 2008, the probation officer filed a second VOP complaint, this time in defendant’s Chittenden County cases, alleging that defendant had violated probation by failing to participate in counseling to the satisfaction of his probation officer, by failing to pay his fines, and by failing to complete required community service hours.
117. On May 6, 2008, the Chittenden District Court held a merits hearing on the March VOP complaint. Both probation officers testified. The Burlington officer testified to what she understood was the specific direction imposed under the court’s probation condition that required defendant to attend counseling as deemed appropriate by his probation officer.
118. The Morrisville probation officer testified that he never received verification from defendant or from Teen Challenge that defendant had completed the full amount of community service hours required by his probation orders. He also explained that he had received no payment of fines from defendant, nor any documentation of payment, until after he filed his VOP complaint on March 26.
¶ 9. Following the presentation of testimony, the trial court concluded from the bench that defendant had violated the
He went to Teen Challenge in... July or August of 2007. He left Teen Challenge in January, and at that point he was no longer attending counseling as directed by his probation officer, specifically, alcohol or substance abuse counseling. So the Court can find a violation that he did not attend counseling as directed.
The court also concluded that defendant had violated probation by failing to perform community service and by failing to pay required fines. The court declined, however, to find that defendant had violated probation by failing to report a change of address after leaving Teen Challenge. Sentencing was set for June 2, 2008.
V 10. Defendant’s hearing on June 2, 2008 involved both sentencing for the VOPs adjudicated on May 6,2008, and the consideration of an additional VOP claim, not at issue on appeal, for engaging in violent or threatening behavior. The parties came to this hearing with a “global resolution” proposing a two-and-a-half- to eight-year sentence to serve. This sentence took into account the VOPs determined at the May hearing and the VOP charge for violent or threatening behavior, which defendant admitted. As resolved by the parties, the court sentenced defendant to two and a half to eight years to serve.
¶ 11. Approximately two years after he was sentenced, defendant filed a petition for post-conviction relief (PCR), asserting that his defense counsel failed to properly advise him concerning his right to appeal the court’s May 6, 2008 determination that he had violated three probation conditions. On July 6, 2010, the trial court approved a stipulation in which the parties agreed to a dismissal of defendant’s PCR petition in exchange for the reinstatement of petitioner’s right to appeal the May 6, 2008 findings and conclusions. This appeal followed.
¶ 12. At a probation revocation hearing, the State bears the burden of proving a probation violation by a preponderance of the evidence. State v. Austin,
¶ 13. On appeal, defendant first argues that he could not have violated a condition of probation by leaving Teen Challenge because the probation officer never imposed a requirement to attend and complete Teen Challenge, and if there was such a requirement, the condition was so ambiguous that it failed to give him adequate notice.
1115. As we have consistently recognized, due process requires that a defendant know “ ‘what conduct is forbidden before the initiation of a probation revocation proceeding.’ ” State v. Hammond,
¶ 16. Both the Grand Isle and the Chittenden District Court probation orders required, “If the probation officer or the court orders you to go to any counseling or training program, you must do so. You must participate to the satisfaction of your probation officer.” By them terms, these conditions impose a requirement only “[i]f the probation officer or the court orders . . . any counseling or training program.”
¶ 17. In this case, defendant’s obligations were contained in a probation contract between defendant and the Burlington probation officer, as prepared by the officer and signed by both shortly after the Chittenden District Court imposed its probation sentence. The standard form document is titled “PROBATION CONTRACT” and contains sections, among others, concerning financial payment, community service, and counseling. With respect to substance abuse counseling, it states only that defendant is “currently in treatment @ Teen Challenge.”
1118. The Burlington probation officer testified that defendant signed the probation contract — a contract that she had filled out for his signature. She testified that the meaning of the contract was that “I agreed and he agreed that [defendant] would be doing his substance abuse counseling through the Teen Challenge program.” She stated that defendant met with her in August 2007 and informed her that he had enrolled himself in Teen Challenge and thought that it was a good program for him. According to the officer, during this meeting, she let defendant know he was required to go to Teen Challenge. She admitted, however, that she had not recorded the requirement “verbatim.” She believed that she had made clear to defendant “that as long as he stayed enrolled in Teen Challenge and
¶ 19. Our leading decision in this area is Peck. It recognizes the binding force of instructions from the probation officer and imposes no requirement that the instructions be in writing. There is no indication in Peck or in the decisions after Peck that the probation officer’s instructions were in writing; nor have there been disputes over the content of the instructions,
II20. Because the probation contract does not contain a requirement that defendant attend Teen Challenge, we hold that defendant did not violate his terms of probation by leaving Teen Challenge. This conclusion disposes of the issue, and we decline to reach defendant’s related constitutional claims.
¶ 21. The second issue on appeal is whether defendant violated probation by failing to pay required fines. The condition defendant allegedly violated required that he “pay [his] fine(s) ... to [his] probation officer as directed on a schedule determined by [his] probation officer.”
¶22. The testimony on this alleged violation added little. The Burlington probation officer who signed the probation contract gave no testimony about the fine-payment requirement. The Morris-ville probation officer testified that defendant owed fines and did not pay them before the officer brought the violation complaint. The court found a violation of the fine-payment condition because defendant had not paid the fines when the officer filed the VOP complaint.
¶ 23. We cannot conclude that the State met its burden of proof. Defendant was on probation for two years, from October 2007 to October 2009. The probation condition authorized the probation officer to set a payment schedule for repayment during that period. The probation contract itemized the amount defendant owed but failed to establish a payment schedule. There was no testimony that a payment schedule was established. In the absence of a payment schedule, and well before the expiration of defendant’s probation, there was no support for the claim that defendant had violated the probation condition by failing to make a payment before the VOP complaint was filed. We cannot find a violation.
¶24. Our conclusion about the third alleged violation is similar. The relevant probation condition said: ‘You must faithfully woi’k 100 houi’s at a community service job to the satisfaction of your probation officer.” Apparently, there was a similar condition in the Grand Isle probation order, and defendant needed to complete forty more hours of community service to fulfill his responsibility under that order. Thus, the probation contract between the Burlington probation officer and defendant stated that he had to complete 140 hours, “40 from [the] previous docket,” and that defendant had “already started.” Again, no completion schedule was included. The VOP complaint charged that defendant did not complete any “verified community service hours.” The Burlington probation officer testified that it was agreed that defendant could perform his community service hours through Teen Challenge. The evidence also indicated that the head of the Teen Challenge program had told the Morrisville probation officer orally that defendant had done the community service. However, the Teen Challenge program had p2’ovided no ve2-ifieation of the hours of se2wice pe2-fo2’med, and the officer charged the p2-obation violation because of the lack of verification.
¶ 25. We reiterate that the State bea2’s the burden of p2’oving a p2-obation violation by a preponderance of the evidence. Austin,
¶ 26. Finally, we must resolve the State’s argument that any error is harmless because defendant also admitted to committing a more serious breach of probation conditions and the revocation of defendant’s probation is supported by this breach alone. The admitted violation was for violent or threatening behavior, specifically that he physically and verbally abused his ex-girlfriend. The State argues that the court would have revoked defendant’s probation even without findings of violation pertaining to counseling, community service, and fines.
¶27. We disagree that the erroneous violation adjudications are harmless in terms of sentencing. We cannot know what sentence the court might have imposed if it had found fewer probation violations. See State v. Higgins,
Reversed and remanded for fuither proceedings consistent with this order.
Notes
The Morrisville probation officer also filed an additional VOP complaint in the Chittenden cases on May 6, 2008. In this VOP complaint, he alleged defendant had violated his probation condition prohibiting violent or threatening behavior based on allegations from defendant’s ex-girlfriend in a request for relief from abuse order. This last VOP complaint is not at issue in this appeal, except as it may affect whether error in the judgment on the other violations can be considered harmless, see infra, ¶¶ 26-27.
Defendant also argues that if the probation officer required that he attend Teen Challenge, the requirement violates his constitutional rights under the United States and Vermont Constitutions because Teen Challenge is an overtly religious program. We do not reach that argument. .
We recognize that there have been disputes over the effect of the instructions. The central question in Peck was whether the undisputed requirement that he complete sex offender counseling to the satisfaction of his probation officer meant that he had to take responsibility for the conduct for which he was convicted, a requirement for successful completion of the counseling program to which he was assigned. See Peck,
The State argues that defendant failed to preserve his claim that the violation for failure to pay fines was unsupported by sufficient evidence. A probation-revocation proceeding is a hybrid criminal/civil proceeding. State v. Leggett,
Dissenting Opinion
¶ 28. dissenting in part. As the majority recognizes, there is more than one way to impose a condition of probation. Here, defendant was ordered to probation by the court and to engage in substance abuse programming if so directed by his probation officer. Defendant was directed by his probation officer to attend the substance abuse counseling. Defendant attended such counseling, but left to attend a different counseling program at Teen Challenge. Defendant then stopped attending the Teen Challenge program. The court so found, and its findings are supported by the officer’s testimony. On notice of what was required of him, defendant was fairly found in violation of probation when he failed to abide by the condition, and I respectfully dissent from this unwarranted reversal.
¶ 29. State v. Peck,
¶ 30. The majority agrees on the law to this point, but then misreads the facts to conclude the probation officer failed to make the attendance condition clear to defendant. See ante, ¶¶ 15-20. Defendant’s probation officer testified that when she spoke with defendant about counseling he told her that he was already attending Teen Challenge. She further testified that she then told defendant that “as long as he stayed enrolled in Teen Challenge and continued that treatment to the full satisfaction of their programming requirements that [she] would have no issue with that.”
1131. The probation officer’s statement that she had “no issue” with defendant attending Teen Challenge was not, as the majority characterizes it, too vague to establish a counseling requirement. See ante, ¶ 19. The probation officer’s testimony was that she made this comment during a longer conversation with defendant about his counseling requirement. This discussion did not proceed from the premise that defendant was free to decide whether to attend counseling. Rather, the officer said she informed defendant of his counseling requirement and expressed her approval of his choice of Teen Challenge to meet that requirement. The totality of the officer’s testimony supports the court’s finding that when defendant left Teen Challenge “he was no longer attending counseling as directed by his probation officer, specifically, alcohol or substance abuse counseling.”
¶ 32. These findings are further supported by the evidence of defendant’s probation order and the probation contract form. As recited by the majority, the order stated defendant was to attend counseling if directed by his probation officer and that he was to participate to the officer’s satisfaction. In the box labeled “Counseling” on the form contract signed by defendant in the course of the officer’s above-described discussion about his counseling requirement, the officer noted that defendant is “currently in treatment @ Teen Challenge.” Unless the officer was writing defendant’s biography, or keeping a diary of his volitional activity irrelevant to probation compliance, there was, of course, no reason for that notation except as a memorial of her explicit direction, as found by the court, that defendant attend counseling.
V 33. The perception of the majority, that the officer’s endorsement of Teen Challenge “as complying with the officer’s direction” stopped “short of imposing a mandate,” ignores the one and only context for this conversation to have occurred at all. What is vague to the majority was clear to the trial court and, based on his probation order, contract form, and direc
¶ 34. The majority’s focus on the written probation contract and this Court’s decision in Isbrandtsen v. North Branch Corp.,
¶ 35. It is not a finer point of the Geneva Convention we are interpreting, but an everyday probation condition. Its terms and requirements were plain enough to the defendant, the officer, and the court. Accordingly, I would affirm defendant’s violation of probation for failure to attend counseling.
¶ 36.1 am authorized to state that Chief Justice Reiber joins in this dissent.
It should be noted that in Peck the defendant did sign a probation contract requiring him to attend counseling, a fact on which this Court also relied in affirming the violation. Id. at 620,
To be clear, the requirement was to attend counseling, not to attend Teen Challenge. Defendant could have satisfied this requirement by attending counseling at another program approved by his probation officer.