This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
Appeal from: Superior Court, Chit. Crim. Division. DOCKET NO. 1504-4-12 Cncr. Trial Judge: Michael S. Kupersmith & Brian J. Grearson.
Reiber, C.J., Dooley, and Eaton, Jr., JJ.
In the above-entitled cause, the Clerk will enter:
Defendant appeals an order concluding that he violated two conditions of his probation. Defendant argues that there was insufficient evidence to demonstrate that he failed to have a drug and alcohol screening and that he possessed a regulated drug. We affirm.
Defendant pleaded guilty to first-degree aggravated domestic assault. In September 2013, he was sentenced to two-to-five years, all suspended. He was placed on probation with standard conditions and several special conditions, including that he must not " buy, have or use any regulated drugs unless they are prescribed by a doctor" and that he " must have alcohol and/or drug screening." On October 25, 2013, defendant's probation officer filed a complaint alleging that he had violated several conditions, including those requiring him to have a drug screening and prohibiting him from possessing regulated drugs.
A contested hearing was held on the violation of probation. Defendant's probation officer testified that when she began supervising defendant in late September 2013, she reviewed defendant's probation conditions with him, including the condition requiring a drug screening. After defendant expressed his desire to have the screening done at the Howard Center, defendant's probation officer testified that on three occasions she gave defendant a referral to the Howard Center and instructed defendant to make a screening appointment " as soon as possible." On the last of these occasions, October 23, 2013, she instructed defendant that if he did not schedule an appointment by November 6, 2013, she would file a violation. She testified that defendant did not make the appointment or complete the assessment. A Howard Center employee testified that defendant went to the Howard Center on one occasion during a drop-in period, but he left before he saw anyone because he felt ill. She also stated that there was no scheduled appointment for defendant at the Howard Center. A Vermont state trooper testified that on October 24, 2013 he executed a search warrant for defendant's mother's home where defendant was residing. During the search, the officer observed defendant exiting a trailer. A search of that trailer uncovered a bag that field-tested positive for marijuana in the main sitting area of the trailer, and syringes and spoons that indicated heroin use. Defendant's mother testified that in October 2013 her son was living at her property, and sleeping in the main house. She testified that as of October 24, 2013, another individual had been living in the trailer on her property.
Based on the evidence, the court found that defendant had violated his probation on both counts. As to the first count, the court found that the condition required an assessment, and defendant failed to complete it even after being directed to do so by his probation officer. The court explained that defendant had adequate time to schedule an assessment prior to his arrest. The court further found that defendant had at least constructive possession of the marijuana found in the trailer, and therefore violated the condition prohibiting possession of a regulated drug. Defendant appeals.
The State has the burden of proving by a preponderance of the evidence that a defendant violated his probation. State v. Decoteau, 2007 VT 94, ¶ 8, 182 Vt. 433, 940 A.2d 661. " Whether a violation occurred is mixed question of law and fact." Id. First, the court must determine the facts, and second, make a legal conclusion regarding whether those facts amount to a violation. Id.
Defendant argues that there was insufficient evidence to conclude that defendant violated his probation by failing to complete an alcohol and drug screening because the condition did not contain a time requirement. It is the State's burden to show that defendant had fair notice of the condition he allegedly violated. State v. Bostwick, 2014 VT 97, ¶ 8, 103 A.3d 476. The condition may be " express" or " so clearly implied that a probationer, in fairness, can be said to have notice of it." State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076 (1996) (quotation and emphases omitted); see State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246 (1990) (explaining that due process requires notice of what acts constitute a violation and instructions from probation officer can serve to provide notice).
The condition at issue here states:
You must have alcohol and/or drug screening. If the screening shows that counseling and/or treatment is needed, you must attend and participate in whatever counseling and/or treatment your probation officer tells you to do. You must complete counseling and/or treatment to your probation officer's satisfaction.
Defendant asserts that the probation condition did not contain a time requirement, and therefore he was not on notice that he would be violated for failing to complete the assessment by a certain date. We conclude that the language of the condition and concurrent instructions of defendant's probation officer adequately put defendant on notice. See State v. Sanville, 2011 VT 34, ¶ 10, 189 Vt. 626, 22 A.3d 450 (explaining that a probation condition is unconstitutionally vague if a person of " common intelligence" must guess at its meaning) (mem.); State v. Peck, 149 Vt. 617, 619-20, 547 A.2d 1329 (1988) (stating that fair notice of what acts may constitute a violation can be provided through instructions given by probation officer). Here, although the condition does not contain a specific time requirement for completing the screening, the language and context is sufficient to put a reasonable person of common intelligence on notice that the screening must be completed at the beginning of defendant's probation given that the purpose of the assessment was to identify needed treatment or counseling. See State v. Stokes, 2013 VT 63, ¶ 28, 194 Vt. 351, 83 A.3d 567 (holding that it was reasonable for the court to find that defendant, who did not complete counseling because he refused to admit conduct, violated probation by failing to complete counseling program even though probation condition did not specifically require defendant to admit underlying conduct); see also Lawson v. State, 969 So.2d 222, 235 (Fla. ...