State v. Landon T. UrbanState v. Landon T. Urban
NOTICE: This opinion is subject to motions for reargument under
David Tartter, Deputy State‘s Attorney, Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 2. In May 2016, defendant was charged with aggravated assault with a deadly weapon and simple assault arising from an altercation at a mud bog event in Ferrisburgh. The arresting officer‘s affidavit indicated defendant appeared extremely intoxicated when the officer spoke with him shortly after the incident. The charges were tried to a jury in September 2016, resulting in a conviction on the simple assault count. The jury was unable to reach a verdict on the count alleging aggravated assault. In February 2017, the parties reached a plea agreement wherein defendant agreed to plead nolo contendere to the aggravated assault charge in exchange for concurrent sentences on both the aggravated assault and the simple assault charges. The plea agreement provided that a portion of the sentences was suspended, and defendant was placed on probation for a period of two years.
¶ 3. In the plea agreement, defendant reserved the right to challenge the imposition of a condition prohibiting him from purchasing, possessing, or using alcohol should the court elect to impose it. The plea agreement provided for the imposition of other probationary conditions, which defendant agreed were “final” both in the written agreement and orally at sentencing. Defendant also stipulated in the plea agreement that he was not an alcoholic. The court imposed the sentence specified in the plea agreement, including the “no-alcohol” condition,1 to which defendant continued to object, and the other probationary conditions called for in the plea agreement to which he did not object. Defendant contended the no-alcohol condition could no longer be imposed based upon this Court‘s recent decision in State v. Albarelli, 2016 VT 119, ¶ 60, __ Vt. __, 159 A.3d 627, which relied upon public policy to strike a no-alcohol condition.2
Frankly, that event alone would be enough to warrant the Court‘s imposition of—frankly, all five of those conditions. And . . . condition 1, in the absence of evidence that the defendant could not comply with it, I think would be a useful condition in assistance of the counselling that would be occurring. I think it would be—particularly with an event of this nature, leading to a felony conviction, this is an opportunity that the Court would not pass up to require Mr. Urban to re-examine his relationship with alcohol and determine what kind of healthy relationship, if any, he can have going forward. The alcohol conditions . . . amply meet that concern.
While defendant had a prior record, it was never established the extent to which, if any, alcohol played a role in his prior convictions.3 Defendant appealed.
I. Defendant‘s Challenge to the No-Alcohol Condition
¶ 5. We consider first the challenge to the no-alcohol condition. Probation conditions must be reasonably related to the purposes of sentencing and reasonably related to the crime. State v. Moses, 159 Vt. 294, 298, 618 A.2d 478, 481 (1992). “A condition is related to the goals of probation if it is designed, in light of the crime committed, to promote the probationer‘s rehabilitation and to insure the protection of the public.” State v. Campbell, 2015 VT 50, ¶ 9, 199 Vt. 78, 120 A.3d 1148 (quotation omitted). Probationary conditions also must not be overly broad or vague. State v. Freeman, 2013 VT 25, ¶ 17, 193 Vt. 454, 70 A.3d 1008 (quoting State v. Whitchurch, 155 Vt. 134, 137, 577 A.2d 690, 692 (1990)). Where a probationary condition restricts otherwise lawful conduct, the condition must also be “reasonably related to the offender‘s rehabilitation or necessary to reduce risk to public safety.”
¶ 6. Defendant raises a public policy argument, echoing the Court‘s decision in Albarelli, and contends that a condition totally prohibiting him from having or using alcohol is unduly restrictive to his liberty when the offenses for which he was placed on probation were not alcohol offenses. Defendant stipulates that he is not an alcoholic and presented no evidence that he is an “alcohol abuser.”4 To the extent the court believed probationary conditions
¶ 7. We review the imposition of probationary conditions for abuse of discretion. State v. Putnam, 2015 VT 113, ¶ 28, 200 Vt. 257, 130 A.3d 836. “While not without limitation, a trial court‘s discretion [on the imposition of probation conditions] is expansive, and will generally be upheld if the condition is reasonably related to the crime for which the defendant was convicted.” Campbell, 2015 VT 50, ¶ 9 (quotation omitted);
A. The Scope of Albarelli
¶ 8. We first address the reach of Albarelli and whether a no-alcohol condition violates Vermont public policy in all circumstances. In Albarelli, we struck the identical no-alcohol condition here, Condition 1, relying upon the public policy expressed by the Legislature in
¶ 9. Albarelli stopped short of finding a no-alcohol condition improper under all circumstances. It does not, as defendant asserted below, stand for the proposition that Vermont would no longer criminalize drinking. Instead, Albarelli found a no-alcohol condition to be improper when the
¶ 10. Here, defendant stipulated he was not an alcoholic. The stipulation did not address whether defendant was an alcohol abuser and no evidence was submitted establishing the parameters of defendant‘s alcohol use. While the State suggested some of defendant‘s prior offenses were alcohol related, the court did not rely upon that representation in imposing the sentences. As the trial court observed, nothing was put forth indicating defendant lacked the ability to comply with a no-alcohol condition.
¶ 11. While Albarelli was clear that the burden to show abuse of discretion by the trial court in imposing a probationary condition rests with the party challenging it on appeal, it left open the question of which party should bear the burden with respect to alcoholism and alcohol abuse at sentencing in the face of a requested probationary condition prohibiting alcohol use. To be clear, the court must be satisfied at sentencing that a requested probationary condition is reasonably related to the crime and, if the condition is restrictive of otherwise lawful
¶ 12. We conclude the defendant should bear the burden when challenging the imposition of a no-alcohol condition on the basis of being an alcoholic or alcohol abuser for two reasons. First, the defendant likely has far greater access to his or her history of alcohol use and abuse than the State. Second, placing the burden on the State would put it in the position of attempting to establish the lack of the defendant‘s alcoholism or alcohol abuse anytime the State sought a condition prohibiting alcohol use, despite the statute‘s specific authorization of a condition prohibiting alcohol use. Where a defendant seeks the protections afforded by the public policy of
¶ 13. Despite the trial court‘s invitation for the parties to submit further information regarding defendant‘s alcohol history, neither party did so here. Thus, there was no basis for the court to conclude that defendant was an alcohol abuser. That the defendant was intoxicated at the time of this offense, does not, as defendant suggests, necessarily render him an alcohol abuser. The definition of alcohol abuse contemplates something more than intoxication at any one time. See
B. Abuse of Discretion
¶ 14. Thus, with respect to the no-alcohol condition, we are left to consider whether defendant has shown the court abused its discretion in imposing the condition for rehabilitative purposes.
¶ 15. Defendant argues the no-alcohol condition is not reasonable. Defendant‘s primary support for this argument is that a less restrictive alcohol condition should have been imposed because defendant was not convicted of an alcohol related offense and that alcohol possession and consumption is legal behavior.
¶ 16. A probationary condition, including conditions restricting otherwise legal behavior, may be struck if it is “unduly restrictive of the probationer‘s liberty or autonomy.” Whitchurch, 155 Vt. at 137, 577 A.2d at 692. A condition that is unnecessarily harsh or excessive is not reasonable, and conditions restricting a probationer‘s freedom “must be especially fine-tuned.” Moses, 159 Vt. at 298, 618 A.2d at 481 (quotation omitted). Defendant suggests that, because a lesser restriction on alcohol use might have been imposed, a total prohibition is therefore unduly restrictive because it is unnecessarily harsh. We disagree. A probationary condition is not unnecessarily harsh or excessive because other alternatives exist. See id. at 297, 618 A.2d at 480 (explaining that courts have broad discretion in setting probation conditions). In any case, a court may consider probation conditions which involve varying degrees of restriction. In considering those alternatives, the court is bound to impose conditions which are not unnecessarily harsh or restrictive. Id. at 298, 618 A.2d at 481; Putnam, 2015 VT 113, ¶ 48 n. 11. In this case, the court was concerned about the nature of the offense—a public brawl where defendant committed an aggravated assault while drunk and armed with a knife. The court felt total abstinence from alcohol was warranted to aid in defendant‘s rehabilitation. The question is not whether the court might have reasonably chosen to impose a lesser alcohol restriction, but whether there was a reasonable basis for imposing the restriction that it chose. Savo, 141 Vt. at 208, 446 A.2d at 789. Defendant has not shown why a complete prohibition on defendant‘s alcohol possession or use was unreasonable under the circumstances. Therefore, he has not shown an abuse of discretion in the trial court‘s careful consideration of whether and why it should impose a no-alcohol condition in this case.
II. Defendant‘s Challenges to Additional Conditions
¶ 17. Defendant agreed to five probationary conditions in the plea agreement, and at sentencing, which he now seeks to have vacated or modified.9 We have recognized that probation conditions as part of a plea agreement are a contract. Whitchurch, 155 Vt. at 139, 577 A.2d at 693. Although a defendant may seek modification of the probationary conditions, if the modification results in the probationer escaping part of the obligation of the plea agreement after accepting its major benefit, it may be incumbent upon the court to
¶ 18. Defendant complains the challenged conditions are overbroad and unduly restrictive largely because they are not related to the crime for which he was convicted and because the court made inadequate findings to justify their imposition. But there is no reason why the court should have made findings justifying the imposition of probationary conditions to which there was not only no objection, but an agreement to their imposition and an agreement that they were “final.”
¶ 19. We have addressed a similar argument concerning the lack of connection between the probation condition and the offense in Whitchurch, where we said:
[D]efendant attempted to ground his attack on the absence of a record at sentencing, an absence directly caused by the fact that he entered into a plea agreement. It would be wholly inappropriate to ground relief on the failure of the record to show a sufficient connection between the offense and the probation condition where defendant‘s agreement to the probation condition caused the absence of a record. In effect, it would shift the burden of proof on modification of probation from the defendant to the State and the court.
155 Vt. at 139, 577 A.2d at 693. As in Whitchurch, in light of the absence of a record, we consider the argument to modify or strike the challenged conditions as a facial attack on the probation conditions based on the arguments defendant raises. Defendant can be successful in his challenge only if there is no set of circumstances under which the court could conclude that such conditions are sufficiently tailored and supported by the record. Id. at 140, 577 A.2d at 693. Defendant does not allege there are no circumstances under which the court could reach such a conclusion. Even where the court has considered the delegation of authority to the probation officer to be plain error, for example concerning the type of residential treatment or type of counselling, we have nonetheless remanded to the trial court for the opportunity to make findings justifying the broad delegation. Albarelli, 2016 VT 119, ¶ 66; Putnam, 2015 VT 113, ¶ 70. Thus, defendant has not shown that the conditions are facially invalid on the grounds that he raises.
¶ 20. Because defendant is not entitled to modification of any of the imposed probationary conditions, we need not consider the impact modification would have on the continuing validity of the plea agreement.
Affirmed.
FOR THE COURT:
Associate Justice