*1 VT 82 R. v. Owen Cornell of Vermont 469] A.3d [103 No. 12-400 Crawford, Dooley, Skoglund, Reiber, C.J., JJ. Robinson and Present: August Opinion Filed Rainville, County Deputy Chief State’s Bennington Christina Attorney, Plaintiff-Appellee. for Bennington, Turner, General, Valerio, and Rebecca
Matthew F. Defender Defender, Defendant-Appellant. Montpelier, Appellate ¶ Reiber, In this defendant sentencing appeal, C.J. imposition the trial court’s various conditions to serve completion after of his incarcerative sentence. Defendant argues boilerplate imposed by that the “sex offender conditions” sufficiently comply the court were not individualized to *2 statutory sentencing requirements, vague ambiguous the and of some of the conditions violated wording process defendant’s due and the rights impermissibly delegated authority court’s to his officer, and that unduly several of the conditions were restrictive and invasive in violation of defendant’s substantive due process Defendant raised these rights. response issues below to Court, a limited remand from this but the trial court did not remand, address them because its on authority requested as parties, was limited to clarifying the conditions it had already In imposed. accordance this Court’s September entry extending order the trial court’s authority on remand to resolve however, defendant’s challenges, we remand to the trial court for further on proceedings defendant’s motion to reconsider probation conditions.
¶2. This case presents significant questions involving principles of separation powers, substantive and procedural due process, statutes, and burdens of production under the sentencing all from arising a list of apparently routine probation conditions imposed by court at sentencing. Defendant was convicted by jury on April 2012 of lewd and lascivious conduct with a twelve-year-old child. The court ordered a presentence investiga- (PSI), tion which the report Department of Corrections submitted on 2012. July Within the was a PSI section entitled “Special- Probation,” ized Conditions -with a list of thirty-two probation conditions, some of which were under labeled “Alco- subheadings hol and and Drug” “Monitoring.” Each probation condition had a it, line next to to be presumably checked off the probation officer, but none of the lines next to the proposed conditions were marked. Defendant did not file any written PSI-recommended conditions before sentencing. ¶ A sentencing contested hearing September was held on 2012, during which the State asked for a two-to-eight sentence of years prison, part due in to post-trial flight Arizona and the fact that he had recently requested approval that, be a foster The also parent. State noted since the had PSI produced, been defendant had admitted the conduct agreed and treatment, which the in sex offender circumstances engage and make “big sentencing could make a difference” suggested “kind of irrelevant.” Defendant re- recommendations PSI his low recidivism probation, emphasizing a sentence of quested sex offender treatment. The importance receiving risk all ultimately years, court sentenced defendant to two-to-six months, for time served. except twenty with credit suspended The court stressed the of sex offender treatment importance sentence, for defendant in and invited programming imposing if the Depart- a motion for limited reconsideration of indicated that the sentence imposed “prevents ment of Corrections further ordered that programming altogether.” The court “[a]ll conditions as mentioned in the are imposed sexual offender PSI for the but did not list the conditions it probation period,” precise That imposing. day, same the court issued order defendant, imposing twenty-one restrictions on the last of which abide all “[y]ou stated must sex offender conditions as directed by your probation officer.” The court’s order did not specifically imposing. list the sex offender conditions that it was The condi- tions in its order entry general were and not the same as the *3 PSI, in proposed conditions the and at least one of the not drink beverages they defendant alcoholic “to the extent interfere with employment family,” or the welfare of [his] [his] PSI, inconsistent with the which a on complete recommended ban consumption alcohol as well as alcohol treatment.
¶ Court, 4. After and pending appeal before this defendant in gained acquiescence filing State’s a motion for remand to the trial court in order clarify conditions the court intended to This impose. granted Court 10, 2013, motion on “for specific purpose June of providing special clarification of the imposed.” On remand, defendant submitted written to various pro- PSI, posed probation conditions in the including the conditions that defendant not have contact with his nonvietim children films, prior approval; without view or television shows “videotapes, that act a stimulus for your cycle”; possess as abusive porno- material; graphic, sexually stimulating, sexually or oriented fre- stores, bars, etc.; quent shops, topless adult book sex own or camera, recorder, a video possess or other electronic device that has a such as a cell or own or recording capability, phone; at his residence or the Internet at his possess computer access place employment anywhere or else without prior from approval (PO). his officer objected Defendant also to conditions that he his requiring give PO search-and-seizure authority for erotica, drugs, pornography to include if electronic media and/or possession PO, such instruments is prohibited by the in a participate plethysmograph examination to determine his sexual arousal to abusive themes. Defendant also challenged conditions that he cannot participate friendships or relation- ships with women or men who have children under the age of eighteen; may not have contact with persons under age eighteen accompanied adult; unless aby responsible cannot drive alone with a PO; female unless approved by his cannot engage activities that children; will him in close bring contact with cannot in an apartment live complex that has families with children or schools, neighborhoods parks, near playgrounds; and the con- dition requiring that employment be approved in advance by the PO. 6, 2013, September On the trial court issued an order
adopting essentially all of probation conditions 9, 2013, contained in the PSI.1 On September the court an issued entry order it stating that would not address defendant’s objec
tions to the PSI-recommended conditions on the grounds that “the remand in this case was for clarification of what conditions were “[djefendant’s imposed.” The court further advised that remedy lies his That appeal.” day, same defendant filed a motion to reconsider the court’s imposed probation conditions. Defendant also filed a motion with this on September Court 2013 to extend the remand and allow the court to rule on defendant’s motion to reconsider. The trial court denied defendant’s motion to 17, 2013, reconsider September on on the basis that the court had fulfilled already purpose remand, of the which was clarify the conditions imposed, and that it declined to act further. Two later, however, days granted Court defendant’s motion to extend the remand so that the trial court could rule on defend ant’s motion to reconsider. Defendant moved to review or modify *4 7, his probation conditions on March and the trial court denied the motion on March 2014 for subject lack of matter 1 wording changes, only discrepancy Besides some minor between the PSI conditions and the court’s order is that the order does not contain the PSI may any primary purpose condition “You not enter establishment where the is the selling/serving beverages.” of alcoholic issues on had raised identical because defendant
jurisdiction to this Court. appeal then, declining trial order that the court’s appears, It allowing and this Court’s order on defendant’s motion
rule
in the mail.
motion at some
crossed
point
court
to rule on the
that
we conclude
confounding procedural posture,2
this
Despite
the trial court.
ultimately
before
properly
defendant’s motion was
of his
that defendant waived consideration
argues
The State
entirely
object
probation
because he did not
to the PSI
arguments
during
before
the sentenc
recommendations either
objecting
contends that
not
ing hearing. Essentially,
State
sentencing hearing
at the time of the
jail,
for
rather
than
defendant
arguing
probation
and instead
in a
ultimately
prison
choice that
resulted
strategic
made a
sentence,
challenge
and thus lost the
his conditions
opportunity
Moreover,
already imposed.
once the
sentence was
probationary
for the
that
the remand from this Court was
argues
ordered,
already
the conditions
purpose
clarifying
limited
for the
that it was
for defendant
to raise
first
improper
Therefore,
that
the proper
time on remand.
State asserts
raise his
would be in a
challenges
avenue for defendant
a
proceeding
appeal.3
rather
than
direct
post-conviction-relief
a
Part of the confusion in this case arises from the fact that defendant filed
—
appeal
asking
clarify
comprehensively
before
the trial court to
then
notice
—
challenging
blurring
jurisdictional
thus
lines
proper procedure
The
have been for
between the trial court and this Court.
would
imposed by
defendant to first move for clarification of the conditions
the trial
court,
bring
challenge
and then to
his claims before the trial court
to an
35(a)
illegal
under Vermont Rule of Criminal Procedure
or in a direct
sentence
7041(d)
appeal
(providing
entry
§
that
of deferment of
to this Court. See 13 V.S.A.
judgment
purposes
appeal);
§
a final
V.S.A. 207
sentence constitutes
judgment). Despite
procedural
(stating
a final
sentence to
constitutes
35(a).
error,
challenge
we construe defendant’s claim as a
under Rule
authority
support
proposition
of its
The State has not cited
relief,
through post-conviction
“would be better served”
presumably pursuant
Assuming post-conviction
§
to 13 V.S.A 7131.
relief is avail
able,
challenge
requirement
there is no
that defendant wait to mount a collateral
sentence, particularly
probationer
we have held that “a
is barred from
to his
where
raising
challenge
charged
to a
that he was
a collateral
condition
violating,
challenge
appeal
have been
direct
from the
where the
could
raised on
Freeman,
25, ¶ 12,
sentencing order.” State v.
193 Vt.
299 ¶ 7. We need disagree. We not reach the question of what have, obligations defendants generally speaking, to preserve ob jections to conditions in imposed a contested sentencing proceeding, because it is clear that defendant in this case did not adequate have notice of the probation PSI, conditions from the the court’s oral during order sentencing, or the court’s entry order after hearing. PSI, -with Starting it was not clear which conditions were recommended because none of the boxes next to the form list of conditions in the PSI were checked. The State asserts that it is routine for the court to impose gamut whole prescribed conditions for a particular offenses, category of and so defendant in this case was on notice that office had recommended the entire list of so-called “sex offender” conditions. This apparently routine practice the Bennington County court is not codified in any court rule or statute. But even assuming defendants have notice of categorically imposed conditions, one would expect, consistent with practice, that all of the boxes on the checked, PSI list would be not none. With no indication of which conditions the probation office had recom mended to be imposed, defendant was not on notice prior to the sentencing hearing obligate to him object to even if he did otherwise have such an obligation.4
¶ 8. This confusion was compounded by the court’s oral order during sentencing imposing sexual “[a]ll offender conditions as mentioned in the PSI” without delineating which conditions it was to. referring The PSI contained many conditions not immediately offenses, related to sex including conditions, alcohol prohibitions on possession devices, of electronic search-and-seizure privileges, and driving restrictions. The conditions, title for the “Specialized Conditions,” did little to clarify which conditions were the “sex offender” conditions intended the court. Finally, the court’s post-hearing entry order stating that defendant “must abide all sex offender conditions as directed probation officer,” [his] not although We further note that Vermont Rule provides of Criminal Procedure 32 opportunity defendants and the State “an upon any to comment and all information sentencing,” submitted to the court requires only the rule written to PSI, facts sentencing contained within the not recommendations. V.R.Cr.P. 32(c)(4)(A). By contrast, analogous requires parties federal rule to “state writing any objections, including objections information, material guideline ranges, policy statements report.” contained or omitted from the 32(f)(1). F.R.Cr.P. also but clarification of no additional
only provided
officer to decide
to the probation
discretion
delegate
appeared
no signed
There was
actually
imposed.
be
conditions would
which
entry
Because the
the conditions.
receipt
acknowledgment
upon
which
forth the
“explicitly
did not
set[]
order
released,”
written
provide
it did not
sufficient
being
is
[defendant]
enforceable,
required by
as
to be
notice for the conditions
¶¶ 11, 15,
252(c).
Vt.
Hemingway,
v.
§
V.S.A.
circumstances,
objec-
these
¶
reasons,
conclude that defendant’s
the above
we
9.
For
was prop
conditions
imposed probation
reconsider the
motion to
to reconsider
remand for the court
the trial court. We
erly before
conditions
imposed
to the various
the defendant’s
“reasonably neces
ensure,
they
are
things,
other
among
life or to
law-abiding
that the offender will lead
to ensure
sary
252(a);
§
see also State
to do so.”
28 V.S.A.
assist the offender
See
¶
(“[Probation
65, 9,
180,
Rivers,
¶ Dooley, J., essence, is a continuation of In concurring. 10. 495, Morse, 2014 VT 197 Vt. in State v. my concurring opinion Morse, in the of the Court opinion 902. As in I concur 106 A.3d in an rule-making a serious need for but believe this case shows Rule of Criminal specifically by that is not covered Vermont area subject Following is to its terms. arguably Procedure but read when the Rules Criminal federal rule as it Vermont 32(e) availability *7 441, 465, case, have a muddle. In this a Vt. 97 A.3d we instead condition “You shall not drink alcoholic bever- provides: standard or the they your employment to the extent interfere ages or other A your family, yourself any person.” special welfare of or may purchase, sex-offender condition reads “You not consume alcohol.” possess
¶ condition must be chal probation 13. We have held that a motion,5 by appeal at a Rule 35 or from the lenged sentencing, sentence, and not be raised as a defense to revocation of may Austin, v. State a violation of the condition. probation based on (1996). 389, 401-02, 1076, 685 A.2d 1084-85 Each 165 Vt. its own challenge complications. methods for has permissible ¶ at time challenges 14. This is true of of sentenc- particularly 32, rule, in nothing governing sentencing There is Rule ing. object proposed sentencing a defendant to to requires that 35(a) procedure challenges Rule because this has not 5 I have not addressed under arisen in this case. sentencing hearing. majority before the As the
recommendations out, a a defendant to provision requires there is points objection writing to facts contained “[a]ny [PSI]” submit sentencing hearing. V.R.Cr.P. days prior at least three 32(c)(4)(A). to requirement apply proposed But this does not PSI, plea agreement whether in the a or probation then, the defendant sentencing position. Presumably prosecutor’s objection to conditions as of defense any probation part will state at sentencing hearing. counsel’s See V.R.Cr.P. presentation 32(a)(1)(B).
¶ instances, opportunity inadequate. 15. In some is The trial of, of, may only computer-generated court include all some conditions, and some standard additional conditions not raised any In this case the trial court added a condition that party. stated: “You must abide all sex offender conditions as directed by your officer.” The record contains no indication that probation such a condition would be Apparently, included. defendant learned only signed, of the condition when he received the written objected order. It is unclear when defendant could have to this condition.
¶ instances, objection In an at many very 16. comes late and will time to resolve the conflict give inadequate or force Freeman, 25, 17, In v. sentencing delay. State 2013 VT 193 Vt. 1008, 70 A.3d we struck down a condition in part because the court made no findings indicating necessity. its Of course, there was no evidence in that case from which the court just could have made findings as there was no factual statement in the of the support proposed PSI conditions in this case and specific no facts supporting probation conditions the court imposed.
¶ 17. The State makes the in this case that it argument had to have the opportunity respond with evidence to challenge in the Again, currently PSI. Rule 32 as it require prior exists does not notice of a to a challenge condition and no for an gives opportunity evidentiary hearing.
¶ Many of the probation conditions have been See, Moses, appeal raised on direct to this v. e.g., Court. (1992). 294, 295-96, Freeman, Vt. A.2d In *8 ¶ available, we ruled that an appellate challenge even objection court, the absence of in the trial under a error plain aboye, standard of review. As noted Freeman struck down a condition in the absence an objection below in part because there findings were no it. support suggests Freeman findings necessary were even in the objection absence of an condition the trial court. A clarification rule of when findings necessary are in support of a probation condition would be appropriate. Morse, 19. As in I recommend that the Criminal Rules
Committee draft and recommend additions to Criminal Rule 32 to address specifically process of creating and implementing probation conditions procedures and the for objecting to or challenging proposed conditions.
[
Opinion August Filed were Rule notes adopted, Procedure to the statutes. See any special procedure but leaves statutes, relevant Notes. The V.S.A. Reporter’s V.R.Cr.P. 201-255, major but leave As this procedure, gaps. §§ some provide demonstrates, necessary. of these is filling gaps some case ¶ involves related to major gap procedures 11. The case, investigation In this the presentence conditions. (PSI) thirty-two arguably proposed “specialized report I because none of these conditions say arguably of probation.” checked, I majority as the decision notes. under- were separately routinely that this list of conditions is argument stand from the Department part of Corrections as crimes, In Bennington County. at least for sexual-misconduct addition, large the court considered a number of standard condi- case, system. are of the court’s In this part computer tions that of these conditions and added two the court ordered nineteen “32”) (labeled others, “you number must abide one of which by your probation all sex offender conditions as directed Thus, case, in this conditions were fifty-three probation officer.” in play. somehow challenging many defendant has noted in of the As of conditions has caused serious proliferation actually which conditions are effect. Where questions regarding ¶48, 15, Hemingway, v. see precision, we need