On Appeal from Superior Court, Chittenden Unit, Criminal Division December Term, 2014 Michael S. Kupersmith, J.
Thomas J. Donovan, Jr., Chittenden County State’s Attorney, and Pamela Hall Johnson, Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Defendant Gordon Campbell appeals two special sex-offender conditions of probation imposed upon him following being sentenced on a plea agreement for one count of aggravated assault and one count of sexual assault. We affirm one of the conditions but remand the other for the superior court, criminal division to either strike or revise the condition in accordance with this opinion.
¶ 2. In March 2006, defendant was charged in a three-count information with sexual assault, 13 V.S.A. § 3252(a)(1)(A),  aggravated assault, id. § 1024(a)(1), and violation of conditions of release, id. § 7559(e). The three charges stemmed from an incident occurring earlier that March during which defendant, after drinking several pitchers of beer at several bars in downtown Burlington, was approached on the street by a young man looking for directions to a local house and for some cocaine. During the encounter, defendant offered the young man money in exchange for oral sex. The young man declined and began to walk away, but defendant followed him, repeatedly asking for oral sex and offering to pay. After the young man told defendant that he was not a “faggot, ” defendant physically and sexually assaulted the young man behind a restaurant.
¶ 3. In March 2007, pursuant to a plea agreement with the State, defendant pled guilty to all three counts and was sentenced that August. Subsequently, defendant filed a post-conviction relief petition in the civil division and moved for summary judgment. The civil division granted defendant’s motion for summary judgment, vacated defendant’s sentence, and remanded to the criminal division with leave for defendant to withdraw his plea. Thereafter, defendant and the State negotiated a new plea agreement where defendant agreed to plead guilty to the two assault charges and the State agreed it would dismiss the violation-of-conditions charge. A pre-sentence investigation (PSI) and psycho-sexual evaluation were ordered to accompany the new plea agreement, and the court delayed accepting the agreement until it had a chance to review the PSI. Defendant, upon receipt of the PSI and prior to the sentencing hearing, filed various written objections to the PSI with the court, including objections to the two special sex-offender conditions of probation, in the language originally proposed by DOC in the PSI. Specifically, defendant challenged condition 42, requiring, in essence, that defendant submit to and pay for polygraph examinations; and condition 44, requiring, in essence, that defendant reside and work only where approved by his probation officer.
¶ 4. At the sentencing hearing, the court addressed each of defendant’s objections prior to entering sentence and imposing conditions of probation. As to defendant’s objection to condition 42, the polygraph condition, defense counsel argued that the condition should be stricken because defendant could not afford to pay for the examinations and, because such examinations are inadmissible in court, the examinations would be of no use to defendant’s probation officer. Upon the court’s inquiry into cost, defendant’s probation officer indicated that such examinations generally cost a probationer $50, with the State paying any additional costs, and that defendant would most likely qualify for state-subsidized insurance, which would likely cover the $50 charge itself. The court expressed its confidence in condition 42 “as long as it’s understood that the inability to comply with these conditions is not a violation if Defendant is unable to afford the cost.” Defense counsel agreed to the modification, but continued to object “just as a general principle, ” arguing that defendant’s probation officer might use a polygraph-examination result to allege a violation of probation but then would have nothing to support the charge in court. Upon inquiry from the court as to this objection, Defendant’s probation officer responded as follows:
Your honor, I find that sometimes I have an offender that’s doing well and has been doing well for a period of time, and, you know, at face value he’s doing well. I’ll put him on the polygraph examination and confirm my belief that they’re doing well.
Sometimes, things come up in the polygraph that, you know, we’ll sit down and have a conversation with an offender after the polygraph’s been done, maybe a week later. And then that offender is all of a sudden admitting to some of this behavior.
I’m certainly not going to bring a violation that says I polygraphed [defendant] on such and such a date, and these are the results, and I’m violating these conditions.
On that explanation, the court imposed the condition over defense counsel’s continued objection.
¶ 5. At this point in the sentencing hearing, defense counsel paused to address the ability to appeal imposition of the objected-to special sex offender conditions notwithstanding the fact that defendant and the State were entering into a plea agreement, inquiring:
If the Court’s inclined to impose [condition 42], then-
without further objection, you know, we’re in this hybrid format though, in terms of we have a plea agreement but we’re apparently contesting the sexual offender conditions that are being imposed. So, I don’t know, does that allow us room to appeal these?
The court responded that “I think-I think you probably can, ” to which defense counsel stated: “[S]o then my understanding is, although we’ve reached a plea agreement and we’re waiving appeals as to most of what’s, you know, in the plea agreement, we’re reserving our right to appeal these sex offender conditions.” The court responded “[f] ine, ” and the State was silent on this understanding.
¶ 6. As to condition 44, the condition restricting where defendant may live and work, after verifying with the court that the plea agreement pre-approved defendant residing with his mother, defense counsel objected as follows: “And in terms of why the PO would be restricting where he could work or have the authority to approve it, we’d object to that.” Thereafter, the court and counsel had the following exchange:
The Court: Well, I don’t expect this to be unnecessarily restrictive. I mean, if we’re talking about a bar, for example, that might not be ...