*1 230 (1982) there (establishing 430, 453, 450 A.2d
Vt. noting rule and exclusionary to Vermont’s exception good-faith no our “eviscerates obtained evidence improperly that admission our perverts individual privacy, on rights, impinges most sacred fairness, encourages and any notion distorts judicial process, (exclu- McManis, misconduct”); also see official infor- corroborate diligently “‘encourages police rule sionary ” Robinson, (quoting unreliable source’ potentially from a mation ¶ 19)). after defendant’s the evidence obtained Absent barracks, upheld, a conviction cannot be transportation granted trial court also should have consequently the defendant’s motion to dismiss.
Reversed; granted. and dismiss is suppress motion to
Allison N. Fulcher of Associates, Barre, Martin & for Defendant- Appellant.
¶ Robinson, 1. J. The critical question in this case is whether a probationer can charged with violating probation condition prohibiting “violent or threatening behavior” on the basis of menacing statements he made about his probation officer without any evidence that he intended for his probation officer to hear or learn of the statements. We conclude that the State’s allegations did not make out a prima facie case of probation violation and accordingly reverse.
¶2. After pleading guilty to several charges stemming from incidents, different defendant Jason sentenced, Johnstone was January to twenty days to serve on a work crew with balance of his two-to-twelve-month sentence suspended with pro- bation. One of probation conditions, his M,” standard “Condition provided, “Violent or threatening behavior is not allowed at any time.” probation Defendant’s officer testified that she reviewed the sentencing on the date
conditions with and understood that he read acknowledged signed each condition. officer filed a later, probation Three months defendant’s (VOPs). day of probation various violations The alleging
complaint VOPs, probation for those arraignment after his a violation of alleging complaint a second VOP officer filed made after the of statements defendant on account Condition M subject appeal. of this That second VOP is arraignment. on the following arraignment alleges 4. The complaint violations, spoke officer probation while his set of probation first be imposing, the officer would him the conditions about officer, probation said to his Defendant angry. defendant was baby away sitter my [expletive] other “You took among things, allegation is no me, happy.” I are There hope you [expletive] from at that time. harm his officer probation that he threatened courthouse, defendant and his exchange After this officer exited ways. parted officer door, while defendant and his through the back building the front. As the through left ex-girlfriend presumably front of the courthouse she could walked toward the slowly *3 of yelling front ex-girlfriend hear defendant and his concerning expletives continued to shout courthouse. Defendant proba- and the court. The probation his treatment officer ex-girlfriend talking and his about tion officer heard defendant Corrections, and at and the Commissioner of calling the media officer was say probation defendant that his point one heard allegation There is no body bag.” to end “going the side of the coming up saw his defendant earshot, in- officer was within or building, knew the officer to hear the statements firsthand tended for his comment was the basis for the indirectly. “body bag” or even second VOP. complaint, the second VOP 6. Defendant moved to dismiss Sanville, our decision in State v.
relying heavily on
(mem.).
Sanville,
In
we concluded that
¶ 7. Subsequently, the parties presented the court with a proposed plea agreement pursuant to which defendant would plead guilty to a charge violations, admit two probation the State would dismiss the second VOP relating to the body-bag comment. When the court asked the parties about the second VOP, defense counsel explained that the agreement contemplated dismissal of that complaint because the conviction would be if appealed relating VOP to the body-bag comment were included. The court concluded that it would reluctantly accept the proposed plea agreement if defendant admitted to the VOP relating the body-bag statement as part of the package. The court explained, important “[I]t’s' that he take responsibility for this misconduct here. If he wants to appeal, he’s certainly welcome to do that.”
¶ 8. Defendant agreed to admit to the second VOP as part of the overall deal. In the Rule colloquy between the court and defendant regarding alleged violation, defendant admitted to the facts alleged in the second complaint VOP and the court that, advised defendant although he was giving up his right to a merits hearing on the second VOP “on those two theories that we about,”1 talked and there would not any further proceedings court, the trial he “at liberty to take an appeal if [he] At no time want[s].” did the State object to or dispute the court’s proposed extension of defendant’s right appeal. After being told that he could appeal, defendant admitted to the second VOP complaint. The court again reiterated that he could appeal the finding violation if he wished. This appeal followed. above, primarily 1As noted argued in connection with the motion to *4 that, dismiss under vague encompass Condition M was too to the kind of mouthy, opinions perceived injustice. obnoxious of about a The “second”
theory entirely is not may clear from the record. The referring have been — argument to the that words alone cannot constitute behavior” an argument decision, referenced in the argued by court’s but not defendant on appeal.
I. defendant, to the having admitted argues The State factual the basis violation, appeal on direct challenge cannot now the that he admitted to counters Defendant for his conviction. after the court only comment body-bag on the violation based legal the appeal his admission he could him that after assured to dismiss the earlier refusal underlying the court’s rulings wrong, argues, If those assurances were charge. unknow- his admission contrary the rendered misunderstanding to answers, event, In that the State involuntary. ing his plea motion to withdraw timely is limited to avenue for relief relating change-of-plea to the facts to be found yet based on any from appeal of an afterward possibility the proceeding, with ruling. adverse lies from his appeal that no direct might persuaded We of alleging a violation simply if defendant were
change plea crux of his but that is not the change-of-plea procedures, Rule 11 that, instead, to defendant seeks It- clear from the record claim. was, which he essentially, plea by a conditional from what appeal issue of law while to a contested right appeal reserved the object did not below charged. facts as The State admitting to the that, despite assurances repeated to the court’s right appeal retained his allegations, to the factual he admitting and the State does rulings charge, legal upholding the court’s of the discussions defendant’s characterization challenge not now second defendant’s admission of the VOR surrounding reserving appeal issues for are pleas 11. Conditional 11(a)(2) provides Rule of Criminal Procedure uncommon. Vermont that, the court and the consent of the approval “[w]ith , state, . . . may plea guilty enter a conditional a defendant judgment, on from the writing right, appeal reserving any specified pretrial determination of review of the adverse in nature and are are contractual agreements motion.” Plea 224, Byrne, v. to contract law. State 149 Vt. interpreted according (1988). rely 225-26, parties are entitled 542 A.2d Parker, v. State agreement. terms of the upon express (1990) (mem.). Although Rule A.2d of a writing, the absence pleas to conditional made refers plea plea “[t]he a conditional when negate does not writing parties agreed that both shows hearing transcript plainly *5 conditional that the . . . court plea, accepted the and that plea, the court understood its on ruling motion to dismiss [defendant’s] was (and the specific dispositive) appeal.” issue for United States v. (7th Yasak, 1989). 884 F.2d Cir. Here, change-of-plea the transcript plainly reflects the offer,
elements the court’s defendant’s acceptance, and the acquiescence. State’s The trial court would not accept plea the VOP, agreement without an admission to the repeat second and edly told defendant he could still appeal the court’s denial of his motion to agreed. dismiss. Defendant objec State voiced no tion. The parties proceeded with the change-of-plea on those record, terms. On the whole there could have been no misunder that standing defendant’s admission to the second VOP was explicitly on conditioned the reservation of his right appeal the court’s adverse ruling reason, on his dismissal motion. For that our review of that appeal is not improper.2
II. That brings us to the merits of defendant’s claim that the erred a finding prima facie case to support the second VOP. Defendant merely characterizes his behavior as an expres- sion of anger about the complaint that, first VOP and argues Sanville, according Condition M not sufficiently notify did him that his prohibited. comments were
¶ 14. We review the court’s decision against the dismissing VOP complaint under 12(d)(2), Vermont Rule of Criminal Procedure providing that a prima “substantial, facie case lies when there is admissible evidence as to the elements of the offense chal- lenged . . . sufficient to prevent grant the of a motion for judgment of acquittal at the trial.” Accordingly, the State survives a motion to dismiss for lack prima of a facie by showing case evidence, the taken the light State, most favorable to the evidence, excluding modifying can fairly and reasonably show that defendant committed the violation. alleged We consider the legal argues guilty plea Defendant that his should be vacated because it was not made knowingly voluntarily. particular, argues In that he admitted to the VOP in appeal legal reliance on the court’s advice that he could still the basis for VOP; actually appeal to the extent plea he could not because his effectively right appeal, guilty waived plea involuntary. his Because we plea conclude that expressly right was conditional and did reserve his appeal VOP, legal basis for argument. we need not address defendant’s — law Sanville applicable and other light whether
question facie support prima sufficient to were allegations State’s — Crannell, In re M de novo. See of Condition case of violation (reiterating A.3d 632 question is nondeferential legal standard governing application Court). for .this explained: 15. In we a defendant violating probation, with charged
To be initiation of a probation notice before the must have consti- of what circumstances will proceeding revocation *6 that Due probation. process requires a violation of tute constitute a may inform him as to what acts such notice him to loss thereby subjecting his probation, violation of a come in the form of may the notice liberty. While signature, for the defendant’s presented order probation is still, entitled to know what conduct the defendant of a revocation probation the initiation forbidden before proceeding. ¶ omitted). and citations (quotations (cid:127) ¶ case, probation the same condition 16. In that we considered — — in that as we consider here. The defendant Condition M with his arguments of sometimes heated
case had had
series
¶
landlord. Id. 3.
In
the defendant said that he was
exchange,
one
butts.” Id.
During
and her
husband’s]
to “kick
going
[landlord
told the landlord he
exchange,
heated
the defendant
particularly
trailer. Id.
did not reach the
to burn down the
We
going
can constitute
verbal
statements
alone
question
whether
conditions.
purposes
behavior” for the
Instead,
that,
written,
Id.
concluded
as
Condition M “did
7.
.we
what
opportunity
not afford
defendant a reasonable
know
[the]
Id. accordingly.”
that
act
prohibited,
might
actions were
so
he
omitted).
in
need not
and alterations
As
we
(quotation
statements alone can violate
question
visit the
of whether verbal
by
the notice
that condition
provided
Condition M because
from that
Sanville
indistinguishable
in the
case is
defendant
to defendant
this case.
provided
—
this case is easier than Sanville
not
If
anything,
to end
going
that the
officer was
suggestion
because the
because,
or
but
body
menacing
concerning,
in a
was not
bag
assuming
purposes
even
for the
of this
that
analysis
verbal
M,
statements can violate Condition
there is no allegation that
target
knew
of his statements was within
earshot. He was
off”
“mouthing
ex-girlfriend;
to his
the State has
alleged
that his
in any way
statements were
directed at
anyone
recognized
else. We have
that even an
of a
desire or
to harm
plan
someone cannot reasonably be treated as
“[wjithout
a threat under Condition M
a finding that
[the]
statement
an
represented
actual intent to
put another
fear of
harm
convey
or to
a message of actual intent
to harm a third
¶¶
Miles,
party.”
7-8,
State v.
Reversed. Dooley, J., concurring. I fully concur in opinion for the court. I only my add view that Condition M should be modified to *7 avoid the interpretation issues that have plagued its enforcement. Condition M has part become of the standard form probation conditions in imposed every is, however, case. It required not by statute, 205(c)(1), § see 28 V.S.A. nor on the list specifically 252(b). statute, authorized by Thus, § id. its use is entirely within the control of the judiciary.
¶ 20. As the cases discussed in majority the opinion demon- strate, application the and interpretation of Condition M have been challenged in primarily cases probation where the officer has alleged that the probationer in engaged behavior,” but the “behavior” involved has been or primarily exclusively hand, speech. On the one prosecution the argues that speech is and, other, behavior on the the defendant it argues is not. The cases have tried to find a middle ground between these positions, and the results are always predictable. that language the need is for better It clear to me that 21. specifi- and defines more difficulties interpretation the
anticipates judiciary- to have If we are of the condition. cally coverage the case, conditions, every in we imposed probation created standard and correct seriously obligation improve our to must take more improvement shows that experience them where our enforcement clarification is a better course Language or correction is needed. variations of the same raising regular appeals of action than solution. comprehensive that do not lead to question of this if the last decision it nice this were 22. Wouldn’t M is of M because Condition meaning on the Condition Court interpretation questions? the amended to eliminate joins that this Judge Kupersmith I am authorized to state concurrence. J., If nature Burgess, part.3 threatening the dissenting, body bag” “end in a officer would declaring probation
of one’s defendant, by majority, as the his supposed was not apparent evident from his motion to dismiss. Nor was obliviousness was not convey message lack intent to this to his any of In to the alleged. response from the circumstances apparent motion, the offered that Condition proof dismissal State threatening warned defendant behavior expressly M a loud and and that defendant nevertheless delivered prohibited in the not-too-subtle angry against culminating tirade the officer light of her demise. the most favorable prediction Viewed State, immediately officer was regardless whether firsthand, this evidence was sufficient to receive the threat present charge engaged threatening that defendant support (VOP), trial ;violation and the court so behavior only right challenge reserved ruled. Because defendant ruling trial court’s on appeal, facie case on and the prima State’s error, reversing was not in I dissent from point respectfully this his conditional admission to the VOP.
¶25. v. Invoking State (mem.), only grounds on the sought A.3d 450 dismissal and because his comment was overly vague Condition M was off,” convey than a threat. merely “mouthing rather intended defendant, takes Sanville out of the context majority, like majority’s preserved challenge fully for 3I concur with the view Ante, ¶¶ plea. appeal of his conditional 9-12. the terms
239 inherently vague failing facts to condemn Condition M as for its opportunity to “afford defendant a reasonable know what ¶ so that prohibited, might accordingly.” actions were he act Id. 10 omitted); ante, and alterations What Sanville (quotation a M to actually “fairly referred to was failure of Condition inform” merely with probationer “mouthing “blustering],” off” “mouthy,” and statements violate probation, “obnoxious” would ¶¶ 34, 9-11, in contrast to threats that actual “communi- cate intent to or Id. 12 physical (quotation inflict other harm.” omitted). It is cavil that beyond behavior neither communicating, communicate, nor intended to such a is not threat “threatening M, Condition prohibited by given behavior” and the putative own perception probationer victim’s Sanville that the was only ¶¶ off,” “mouthing this Court found there was no threat. Id. 9-10. below, dismiss, 26. In the trial court on a motion to there was such defendant, no evidence from the or officer and Rather, finding. there was no such the court determined the behavior; proffered prove threatening evidence sufficient observed, if threatening not behavior surprisingly, is a “communicated inflict harm” physical intent to or other as defined 65, 72, 1368, (1993), in State v. Vt. Ashley, 161 632 A.2d statute, 7554, § 13 V.S.A. superseded ranting against then put your probation into a body bag officer would to meet seem this standard.” Such a particularized description of one’s own intent preponderant threat, is evidence an express Blaise, see State v. Vt. A.3d 1167 (mem.) (confirming proof in VOP proceedings is standard evidence), preponderance of and an intentional death threat ob jectively falls within M’s proscription against Condition threaten behavior. ing The court’s conclusion supported by the evidence. ¶ 27. Similarly, defendant’s declaration that the officer “was to end going body bag” prima was also facie evidence a communicated intent to harm For a threat,” the officer. “true prove the State must a deliberate and serious of intent to commit unlawful against violence a particular person, but need prove actual to carry Black, intent out the Virginia threat. v. (2003). 538 U.S. 359-60 The trial court’s decision reflects that well, the State’s evidence was sufficient on as point describing this defendant as at his enraged probation the moments leading up prediction to his explicit that the officer would end up a body bag, finding practically dire allusion indistin- in a the evidence Again taking a death threat. from
guishable *9 defendant’s excluding and to the State most favorable light in must “blustering,” as we conduct as of his characterization dismiss, see V.R.Cr.P. to of the motion the denial reviewing ¶ 583, 18, 3, 15 A.3d 12(d)(2); 2011 VT Stamper, State v. ¶ 12, ruling court’s Blaise, 2, nothing in the (mem.); 2012 VT 142 clearly is erroneous. and other nonthreatening intent claim of a 28. Defendant’s at the trial court the before properly evidence was
modifying dismiss, majority today. before the and is not properly motion to subjective his claimed weigh wanted the court If defendant situation, than of the rather injustice the just against intent to rail officer, he was free a threat communicate hearing. Defendant chose objective at a merits explain his nobler malevolence, Considering only expressed defendant’s not to do so. “blustering,” the trial court’s countervailing nuance without his facially sup declaration as a threat was understanding of the in demeanor and choice by animus evident ported Miles, 6, Cnty. Pulaski (citing Doe v. words.4 See 2002) (en (8th banc), Dist., 306 F.3d 622-24 Cir. Special Sch. are determining that “in whether statements for the proposition Amendment, unprotected by violence First physical true threats of of entire factual context speech light courts must examine factors, objectively reasonable whether including consider several as serious of intent message would view person harm”). get message That intended the officer to inference to draw from the declaration logical
was at least one
complaining
Defendant was not
alleged.
and circumstances
officer. His threat was
his remarks on the
general,
focusing
but
courthouse, immediately follow-
loudly
just outside the
proclaimed
involving
an
ing
proceeding
adversarial
directly, as she did
officer could hear the threat
and where the
corner,
it
likely
or was at
least
to hear
walking around the
forum, volume,
context,
others. Given the
indirectly through
required
Reversing
failing
a real
threat as was
for a
the trial court for
to find
Miles,
(mem.),
in State v.
Vt.
¶ 30. Dooley’s concurring Justice reiteration that Condition M is unfounded, is fatally vague similarly particularly on the record presented. meaning of Condition M is not so as to opaque compel ordinary readers to consult their law libraries to divine its mysteries. Common and even sense marginal put proba- would tioners on fair notice that threatening their officers with death as qualified prohibited behavior” Condition M. Absent credible evidence to the contrary, part what of that behavior is not it threatening? about, What is an antagonist, known assaultive, declaring loudly public place the officer would end dead that threatening? is not danger Where of confusion with innocent conduct? Condition M cannot be bluster, confused with because bluster reflects no actual intent to *10 another in put fear of harm as required for a threat. Under the court, Court, circumstances before the trial and this Condition M is in no need of clarification.
¶ 31. I am authorized to state that Chief Justice Reiber joins this dissent. 5 Moreover, prohibits time,” Condition M threatening any violent and behavior “at require personal and unlawful presence threats do not target. of the See Martin, (10th 1998) United States v. (stating 163 F.3d Cir. in the § prohibiting against officials, context of 18 U.S.C. threats federal that “[t]his required directly victim”); has not proposed true threats be made Raymer, (5th 1989) (declaring United States v. 876 F.2d Cir. that actual receipt required prove of threat is not threatened officer in Hinkson, 115); § United v. 1350, 1354,
violation of 18 States Supp. U.S.C. 349 F. 2d (D. 2004) (direct Idaho target unnecessary communication of threat under 115); Hokanson, (Mass. § see also Commonwealth v. 18 U.S.C. 907 N.E.2d 2009) App. (clarifying, threatening Ct. in context against to commit crime another, threat,” that while “communication a critical element of the it can be indirectly uttered pass target, “one who the defendant intends to it on to the probably pass or to one who the target” defendant should know will it on to the omitted)). (quotation