On Appeal from Superior Court, Chittenden Unit, Criminal Division Michael S. Kupersmith, J.
The opinion of the court was delivered by: ¶ 1. Reiber, C.J.
State v. Freeman (2011-342)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
Defendant, who was given a twenty-year-to-life sentence following a plea agreement on assault charges, challenges in this automatic appeal two of the probation conditions that were attached to his plea agreement. We uphold one of the conditions but remand the case for the criminal division of the superior court to re-examine and to justify, revise, or strike the other condition consistent with the opinion set forth below.
¶ 2. In June 2010, defendant was charged with several criminal offenses--including burglary of an occupied dwelling, aggravated sexual assault, aggravated assault, aggravated domestic assault, and violation of an abuse-prevention order--based on an incident in which he broke into the house where his estranged wife was staying and assaulted her and the couple with whom she was staying. In October 2010, defendant entered into a plea agreement in which he agreed to plead guilty to one count of aggravated domestic assault, one count of aggravated sexual assault, and one count of aggravated assault with respect to his actions towards his wife and one of the other victims. He also agreed to plead no contest to one count of aggravated assault with respect to his actions towards the third victim. In exchange, the State agreed to dismiss the other charges and to recommend an effective sentence of twenty years to life in prison.
¶ 3. The change-of-plea hearing was held on the same day that defendant and the State entered into the plea agreement. At the conclusion of the plea colloquy, the court accepted defendant's pleas, finding them to be knowing, voluntary, and factually based. The court ordered a presentence investigation (PSI) report and set the matter for sentencing. Before the sentencing hearing, defendant moved to withdraw his pleas on the ground that he had not understood that his minimum release date would exceed twenty years because of the Department of Corrections' classification system. Defendant withdrew his motion, however, after the parties agreed to change the original recommended sentence to an aggregate sentence of twenty years to life, all suspended except twenty years and probation.
¶ 4. In February 2011, the PSI report was filed with special conditions of probation appended to it. In March 2011, defendant filed comments and objections to the report, but did not mention the appended special probation conditions.
¶ 5. Defendant's sentencing hearing was held on March 22, 2011. At the beginning of the hearing, the court stated that it had reviewed the PSI report, a psycho-sexual evaluation of defendant, and defendant's comments and objections to the report and evaluation. The court stated that it did not need to address defendant's comments and objections because defendant did not object to the agreed-upon sentence. The court expressly noted that although the plea agreement did not mention any of the special probation conditions, those "recommended" conditions had been appended to the PSI report. The court stated: "I gather the parties at least implicitly agree those should be made special conditions of probation." The prosecutor agreed with that statement, and the probation officer who had authored the PSI report informed the court of changes to conditions not the subject of the instant appeal. Defendant and his attorney remained silent during this exchange and never commented on the probation conditions. Before defendant made his statement to the court, his attorney stated that "we are in agreement with the plea that has been--the sentencing recommendation that's been submitted to the Court."
¶ 6. At the conclusion of the hearing, defendant was sentenced in accordance with the plea agreement to twenty years to life, all suspended except twenty years, and probation with numerous standard and special probation conditions, including the following two conditions that defendant challenges on direct appeal of his sentence:
38. You shall submit to, and pay for, periodic polygraph examinations at the direction of your PO or designee. These polygraph examinations will be used to determine your compliance with supervision and treatment requirements.
40. Def. shall reside/work where PO or designee approves. Def. shall not change residence/employment without prior permission of PO or designee.
¶ 7. This automatic appeal followed. On appeal, defendant requests that conditions 38 and 40 be struck based on the following claims of plain error: (1) condition 38 violates his constitutional due process rights because it requires him to agree to the admission of polygraph results at any future probation revocation proceeding; and (2) condition 40 is not reasonably related to his offenses and is overbroad and unduly restrictive in that it gives his probation officer complete autonomy to restrict his residence and work. ...