Kristin G. Wood, Washington County Deputy State's Attorney, Barre, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
Present: REIBER, C.J., DOOLEY, BURGESS and ROBINSON, JJ., and KUPERSMITH, Supr. J., Specially Assigned.
¶ 1. The critical question in this case is whether a probationer can be charged with violating a 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 a probation violation and accordingly reverse.
¶ 2. After pleading guilty to several charges stemming from different incidents, defendant Jason Johnstone was sentenced, in January 2011, to twenty days to serve on a work crew with the balance of his two-to-twelve-month sentence suspended with probation. One of his probation conditions, standard " Condition M," provided, " Violent or threatening behavior is not allowed at any time." Defendant's probation
officer testified that she reviewed the conditions with defendant on the date of sentencing and that defendant signed and acknowledged that he read and understood each condition.
¶ 3. Three months later, defendant's probation officer filed a complaint alleging various violations of probation (VOPs). The day after his arraignment for those VOPs, defendant's probation officer filed a second VOP complaint alleging a violation of Condition M on account of statements defendant made after the arraignment. That second VOP is the subject of this appeal.
¶ 4. The complaint alleges that following his arraignment on the first set of probation violations, while his probation officer spoke to him about the conditions the officer would be imposing, defendant was angry. Defendant said to his probation officer, among other things, " You took my [expletive] baby sitter away from me, I hope you are [expletive] happy." There is no allegation that he threatened harm to his probation officer at that time.
¶ 5. After this exchange in the courthouse, defendant and his probation officer parted ways. The probation officer exited the court building through the back door, while defendant and his ex-girlfriend presumably left through the front. As the probation officer slowly walked toward the front of the courthouse she could hear defendant and his ex-girlfriend yelling in front of the courthouse. Defendant continued to shout expletives concerning his treatment by the probation officer and the court. The probation officer heard defendant and his ex-girlfriend talking about calling the media and the Commissioner of Corrections, and at one point heard defendant say that his probation officer was " going to end up in a body bag." There is no allegation that defendant saw his probation officer coming up the side of the building, knew the probation officer was within earshot, or intended for his probation officer to hear the statements firsthand or even indirectly. The " body bag" comment was the basis for the second VOP.
¶ 6. Defendant moved to dismiss the second VOP complaint, relying heavily on our decision in State v. Sanville, 2011 VT 34, 189 Vt. 626, 22 A.3d 450 (mem.). In Sanville, we concluded that Condition M was too vague to fairly inform the defendant that his expression of " displeasure at a perceived injustice" — consisting of what this Court described as " mouthy and obnoxious" statements to his landlord— would subject him to a loss of freedom. Id. ¶¶ 10-11. Defendant argued that his alleged statement here was likewise nothing more than " mouthy," " obnoxious," and " blustering about a perceived injustice." In light of our decision in Sanville, defendant argued, Condition M is too vague to fairly warn him that his statements were prohibited. The court denied the motion.
¶ 7. Subsequently, the parties presented the court with a proposed plea agreement pursuant to which defendant would plead guilty to a charge and admit two probation violations, and 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 appealed if the VOP relating 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 to the body-bag statement as part of the package. The court explained, " [I]t's important 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 11 colloquy between the court and defendant regarding the alleged violation, defendant admitted to the facts alleged in the second VOP complaint and the court advised defendant that, although he was giving up his right to a merits hearing on the second VOP " on those two theories that we talked about,"  and there would not be any further proceedings in the trial court, he was " at liberty to take an appeal if [he] want[s]." At no time did the State object to or dispute the court's proposed extension of defendant's right to appeal. After being told that he could appeal, ...