This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Bennington Unit, Criminal Division. David A. Howard, J.
Christina Rainville, Bennington County Chief Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ. DOOLEY, J., concurring.
[¶1] In this sentencing appeal, defendant challenges the trial court's imposition of various probation conditions to serve after the completion of his incarcerative sentence. Defendant argues that the boilerplate " sex offender conditions" imposed by the court were not sufficiently individualized to comply with statutory sentencing requirements, that the vague and ambiguous wording of some of the conditions violated defendant's due process rights and impermissibly delegated the court's authority to his probation officer, and that several of the conditions were unduly restrictive and invasive in violation of defendant's substantive due process rights. Defendant raised these issues below in response to a limited remand from this Court, but the trial court did not address them because its authority on remand, as requested by the parties, was limited to clarifying the conditions it had already imposed. In accordance with this Court's September 2013 entry order extending the trial court's authority on remand to resolve defendant's challenges, however, we remand to the trial court for further proceedings on defendant's motion to reconsider the probation conditions.
[¶2] This case presents significant questions involving principles of separation of powers, substantive and procedural due process, and burdens of production under the sentencing statutes, all arising from a list of apparently routine probation conditions imposed by the court at sentencing. Defendant was convicted by jury on April 24, 2012 of lewd and lascivious conduct with a twelve-year-old child. The court ordered a presentence investigation report (PSI), which the Department of Corrections submitted on July 13, 2012. Within the PSI was a section entitled " Specialized Conditions of Probation," with a list of thirty-two probation conditions, some of which were under subheadings labeled " Alcohol and Drug" and " Monitoring." Each probation condition had a line next to it, presumably to be checked off by the probation officer, but none of the lines next to the proposed conditions were marked. Defendant did not file any written objections
to the PSI-recommended probation conditions before sentencing.
[¶3] A contested sentencing hearing was held on September 26, 2012, during which the State asked for a sentence of two-to-eight years in prison, due in part to defendant's post-trial flight to Arizona and the fact that he had recently requested approval to be a foster parent. The State also noted that, since the PSI had been produced, defendant had admitted the conduct and agreed to engage in sex offender treatment, circumstances which the State suggested could make a " big difference" in sentencing and make the PSI recommendations " kind of irrelevant." Defendant requested a sentence of probation, emphasizing his low recidivism risk and the importance of receiving sex offender treatment. The court ultimately sentenced defendant to two-to-six years, all suspended except for twenty months, with credit for time served. The court stressed the importance of sex offender treatment programming for defendant in imposing the sentence, and invited a motion for limited reconsideration of sentencing if the Department of Corrections indicated that the sentence imposed " prevents the programming altogether." The court further ordered that " [a]ll sexual offender conditions as mentioned in the PSI are imposed for the probation period," but did not list the precise conditions it was imposing. That same day, the court issued a probation order imposing twenty-one restrictions on defendant, the last of which stated " [y]ou must abide by all sex offender conditions as directed by your probation officer." The court's order did not specifically list the sex offender conditions that it was imposing. The conditions in its entry order were general and not the same as the proposed conditions in the PSI, and at least one of the conditions, that defendant not drink alcoholic beverages " to the extent they interfere with [his] employment or the welfare of [his] family," was inconsistent with the PSI, which recommended a complete ban on alcohol consumption as well as alcohol treatment.
[¶4] After sentencing and pending appeal before this Court, defendant gained the State's acquiescence in filing a motion for remand to the trial court in order to clarify the probation conditions the court intended to impose. This Court granted the motion on June 10, 2013, " for the specific purpose of providing clarification of the special probation conditions imposed." On remand, defendant submitted written objections to various proposed probation conditions in the PSI, including the conditions that defendant not have contact with his non-victim children without prior approval; view " videotapes, films, or television shows that act as a stimulus for your abusive cycle" ; possess pornographic, sexually stimulating, or sexually oriented material; frequent adult book stores, sex shops, topless bars, etc.; own or possess a camera, video recorder, or any other electronic device that has a recording capability, such as a cell phone; or own or possess a computer at his residence or access the Internet at his place of employment or anywhere else without prior approval from his probation officer (PO). Defendant also objected to conditions requiring that he give his PO search-and-seizure authority for drugs, pornography and/or erotica, to include electronic media if possession of such instruments is prohibited by the PO, and participate in a plethysmograph examination to determine his sexual arousal to ...