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State of Vermont v. Wallace Nolen

December 28, 2012

STATE OF VERMONT
v.
WALLACE NOLEN



On Appeal from Superior Court, Washington Unit, Criminal Division

The opinion of the court was delivered by: ¶ 1. Burgess, J.

State v. Nolen (2012-062)

2012 VT 106

Supreme Court

Howard E. Van Benthuysen, J.

PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Eaton, Supr. J., Specially Assigned

Defendant appeals from the criminal division's order for an unsatisfactory discharge of defendant from probation. Defendant claims that the trial court abused its discretion by characterizing his discharge as "unsatisfactory" without a hearing or an affidavit demonstrating a probation violation, and seeks a mandate to the trial court for an unqualified discharge. Although not a cross-appellant, the State also contends that the trial court erred by discharging defendant from probation without an evidentiary hearing. We reverse and remand.

¶ 2. The facts can be summarized as follows. Found guilty in March 2010 of three counts of negligent operation of a motor vehicle, defendant received a nine-to-ten-day sentence of imprisonment, all suspended with probation. Stayed pending appeal, the sentence became effective in June 2011 after his conviction was affirmed. Some five months later, in December 2011, the Department of Corrections petitioned the court for an unsatisfactory discharge from probation. The petition was accompanied by a statement from defendant's probation officer, outlining the reasons for the officer's discharge recommendation. The probation officer averred that defendant failed to comply with certain special conditions of his probation, including that he complete a treatment program and mental-health counseling to the officer's satisfaction, as well as the condition that defendant avoid contact with his victim. The probation officer also stated that defendant was uncooperative with efforts to schedule appointments, although she did note defendant's contention that he was unable to attend any probation appointments due to medical issues, including treatment for colon cancer, obesity, obstructive apnea, Crohns disease and diabetes.

¶ 3. Defendant's probation officer asserted that she tried to accommodate defendant's medical needs, but that her attempts were met with continued resistance and new reasons offered by defendant as to why he was unable to follow his probation conditions. On this history, the officer represented that it was "unlikely we will be able to make a positive change in [defendant's] attitudes or behavior." Accordingly, the probation officer proffered that:

[b]ased on [defendant's] current and lengthy medical and mental health concerns, it is improbable that he can be adequately supervised by the department. A decision was made at the Central Office level to respectfully request that [defendant] be unsatisfactorily discharged from probation at this time.

¶ 4. The State responded with an objection to the petition. The State contended that a discharge from probation, even if deemed unsatisfactory, would reward defendant for misbehavior. It was the State's position that if defendant refused to comply with probation requirements, he should be found in violation, his probation should be revoked, and his sentence served.

¶ 5. Defendant requested a hearing on the matter. While the State made no specific request, it is not disputed that it too expected a hearing. The court scheduled a status conference to discuss the filings and ordered that defendant be personally present at the conference. Defendant filed a motion to waive appearance based on his health problems, which was accompanied by a letter from defendant's oncologist explaining how aggressive chemotherapy rendered defendant physically exhausted and weakened his immune system. The trial court canceled the status conference, denied defendant's motion to waive appearance, and entered an order of unsatisfactory discharge from probation. The court "determined that an unsatisfactory discharge [was] within its discretion, and that in the interests of justice and judicial economy, no further hearings [were] necessary on these nearly three-year old misdemeanors." Defendant appeals.

¶ 6. It is unusual for normally adverse parties to take a common position in opposition to a trial court order. Nevertheless, though for different reasons, both defendant and the State dispute the trial court's authority to summarily terminate probation without a hearing. Defendant equates an unsatisfactory discharge with findings of a probation violation, or as otherwise reflecting adversely on his conduct as a probationer. Defendant claims he was denied an opportunity to contest the grounds for such an appellation. The State, on the other hand, focuses not on the court's characterization of the probationer, but argues simply that when, as here, a motion's predicate facts are in dispute, Vermont Rule of Criminal Procedure 47(b)(2) calls for a hearing. The State has not appealed, however, and its argument is unnecessary to resolve defendant's claim. We agree that a probationer is entitled to a hearing on disputed material facts before the trial court can order a less-than-satisfactory discharge from probation.*fn1

¶ 7. Trial courts enjoy "broad statutory authority to suspend all or part of a criminal sentence and place the defendant on probation with such terms and conditions 'as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist him to do so.' " Statev. Nelson, 170 Vt. 125, 128, 742 A.2d 1248, 1250 (1999) (citing 28 V.S.A. § 252(a)). Under 28 V.S.A. § 251, "[t]he court placing a person on probation may terminate the period of probation and discharge the person at any time if such termination is warranted by the conduct of the offender and the ends of justice." Decisions regarding probation status are entrusted to the sound discretion of the trial court. See State v. Daudelin, 151 Vt. 214, 217, 559 A.2d 668, 670 (1989). When a statute "grants discretionary powers to the trial court, we will not set aside [the trial court's] ruling absent abuse of discretion." State v. Merchant, 173 Vt. ...


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