Supreme Court On Appeal from Superior Court, Chittenden Unit, Criminal Division May Term, 2014 Brian J. Grearson, J.
Thomas J. Donovan, Jr. Chittenden County State’s Attorney, and Andrew R. Strauss, Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Joshua S. O’Hara and Rebecca Turner, Appellate Defenders, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.
¶ 1. Defendant Scott Provost appeals from the decision of the criminal division that he violated his probation when he refused to admit the offense and thus failed to complete a domestic violence program in a timely manner, and engaged in threatening behavior while attempting to sign up for the program eight months after his conviction. Defendant argues that the original one-year fixed term of probation expired during the pendency of this appeal, excusing him from the consequences of any subsequent violations. We affirm the decision of the trial court on the ground that the record supports the trial court’s determination that defendant violated the terms of his probation by his delay in enrolling in and completing the domestic violence program.
¶ 2. On June 20, 2012, defendant pled guilty to one count of second-degree aggravated domestic assault, one count of resisting arrest, and one count of violation of conditions of release. He received an agreed sentence of nine months to three years, all suspended. His probation conditions included a requirement that he refrain from violent or threatening behavior and that he participate in the Domestic Violence (DV) Solutions program. The term of probation was fixed at one year and expired by its original terms on June 20, 2013.
¶ 3. The DV Solutions program is run by Spectrum Youth and Family Services. Defendant cancelled two scheduled intakes for the program in January 2013 because he lacked the $20 fee for the meeting. On February 13, 2013, he met with a counselor from Spectrum for another scheduled intake. The meeting went badly. The counselor terminated it because she perceived defendant’s behavior as threatening and because defendant denied committing the offense. Defendant denied threatening her but admitted in court that his behavior was “not very civil” and that he “wasn’t very nice that day.”
¶ 4. As a result of the February meeting, defendant was cited for violation of probation. He was specifically charged with failing to complete the DV Solutions program in a timely fashion and engaging in threatening behavior. Following a merits hearing, the trial court found that defendant had violated both conditions and set the case for sentencing at a later date.
¶ 5. At the sentencing hearing, defendant’s probation officer advocated that probation be revoked and that the court impose the underlying sentence of nine months to three years with a recommendation that he complete the Discovery Program for violent offenders while in prison. Through counsel, defendant sought to remain on probation and requested additional time to complete the DV Solutions program. His attorney stated:
So we would be asking for the court to impose—to reimpose the original conditions of probation with an extension of the term to allow for him to complete DV Solutions. Clearly if he’s not able to do it, he would be back here on a violation of probation, and I think at that point the department’s request for revocation would be on more solid footing than it is at this point.
Defendant said the same thing:
I would just ask the court to grant me my request to continue [on probation] and to prove to the court and to Probation and Parole that I am willing to follow through and accomplish these recommendations and these court orders of these classes and willing to participate, not just show up.
¶ 6. The trial court accepted defendant’s position. The judge extended the term of probation by another year to June 2014. With respect to the violation based on threatening behavior, he ordered defendant to ...