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State v. Hemingway

Supreme Court of Vermont

May 9, 2014

State of Vermont
Todd Hemingway

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

Appeal from Superior Court, Franklin Unit, Criminal Division. Mark J. Keller, J.

Deborah A. Celis, Franklin County Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.


Dooley, J.

[¶1] Defendant appeals from the trial court's order revoking his probation. On appeal, defendant argues that he did not receive a " certificate explicitly setting forth" his probation conditions, as required by 28 V.S.A. § 252(c), and that he did not have notice of the conditions. He also contends that the court did not make adequate factual findings regarding the credibility of defendant's wife, who is the complainant, and that the court's findings were erroneous. We agree with defendant's claim as to the failure to comply with the requirements of § 252(c) and reverse on that ground.

[¶2] On April 12, 2010, defendant pled guilty, by plea agreement, to first-degree aggravated domestic assault for strangling the complainant, and to five counts of violations of conditions of release. The plea agreement, signed by defendant and his attorney, contained a special condition of probation that defendant not abuse or harass the complainant. At the beginning of the plea hearing, in defendant's presence, the State noted orally on the record the conditions of release, which included " no abuse or harassment of [the complainant]." After a plea colloquy, the judge said, " Your probation will be for a period of at least ten years. And the other conditions we've described here all apply." The court accepted the plea agreement and sentenced defendant to five-to-fifteen years, all suspended but forty days to serve. Defendant did not receive a " certificate explicitly setting forth the conditions upon which he [was] released." 28 V.S.A. § 252(c). The State concedes that defendant never signed a probation order.

[¶3] In July 2010, defendant and the complainant had an altercation in which the complainant alleged that defendant became violent. In the beginning of August, the complainant advised the probation office that defendant continued to call her, drive by her house, and follow her friends. He was then arrested for a violation of probation. In September, the State filed a violation of probation complaint against defendant. A violation of probation merits hearing was held on March 3, March 30, and April 28, 2011.

[¶4] At the merits hearing, defendant's probation officer first testified that he had the opportunity to meet with defendant and to review defendant's conditions of probation. Later, the probation officer was asked whether he had reviewed the conditions of probation with defendant. The probation officer answered, " I don't recall if I did or not, if we specifically went over -- over those conditions." The court asked the probation officer how defendant knew " what the conditions of probation were," and the probation officer replied, " I know -- how does he know, I don't know."

[¶5] The complainant testified about the July 2010 incident as follows. Defendant became upset when the complainant went to a fair at the end of July. When she returned from the fair, defendant began calling her and her family members. He then drove to the home at which the complainant was staying and began to yell at her and call her vulgar names. She got in a vehicle with defendant, and he continued to berate her during the drive and after they arrived back at the complainant's home. Defendant slapped the complainant in the face and grabbed her neck.

[¶6] The complainant also testified that defendant had contacted her and her supervisor at the campground where she worked during the summer of 2010, that he threatened to burn down the campground, and that her supervisor would not rehire her because of her relationship with defendant. She further testified that, in the past if she had been upset with someone, she had hit herself and then claimed that someone had assaulted her. She testified that she was currently upset with defendant. She testified that she had recanted abuse allegations before " because of the kids and other reasons" and " [b]ecause he would always tell me that he was sorry ... I felt bad for the girls and I was with him and I just wanted him to get better." She testified that she was scared of defendant.

[¶7] Defendant's mother testified that she saw no physical contact between the complainant and defendant on the day of the fair, and that she did not believe defendant had assaulted the complainant in the past. The complainant's mother testified that the complainant tells the truth sometimes, and sometimes she does not, " just like everybody else." The complainant's mother also testified that the complainant had previously asked her to " say whatever [she] could" to keep defendant out of jail, and that the complainant had previously recanted allegations of abuse. By way of stipulation, the complainant's campground supervisor's deposition testimony was admitted. The supervisor stated that defendant was very polite, that she would not rehire the complainant because of the complainant's character, and that defendant did not threaten to burn down the campground.

[¶8] The court first found that defendant was on probation and that certain conditions of probation were imposed. The court cited State v. St. Francis, 160 Vt. 352, 354, 628 A.2d 556, 557-58 (1993), reasoning that defendant had notice of, and agreed to the conditions, because he signed a plea agreement that was accepted and approved by the court and in which defendant agreed not to abuse or harass the complainant. The court further found that defendant violated the no-abuse-or-harassment condition. The court found that the complainant " has a spotted history of credibility," that she may have lied to the State and the defense regarding defendant's activities at her workplace, and that she has lied and had others lie in order to get the State to dismiss previous charges against defendant. Nevertheless, the court credited the complainant, stating that her " testimony regarding the activity surrounding the evening at the fair had the ring of truth." Ultimately, the court sentenced defendant to serve the underlying sentence of five-to-fifteen years.

[¶9] Defendant challenges his conditions of probation on two grounds: (1) defendant never agreed to the condition at issue so he is not bound by it; and (2) the court failed to comply with the written notice requirements of 28 V.S.A. § 252(c), and that failure makes the condition unenforceable against him. Defendant also argues that the court did not make adequate factual findings on the complainant's credibility and that the court's findings are clearly erroneous. The State contends that defendant had notice of his probation conditions because he negotiated and signed a plea agreement, which contained the no-abuse-or-harassment clause, and that the court's findings are adequate and supported by the evidence. Because we agree with defendant that the court's ...

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