On Appeal from Superior Court, Chittenden Unit, Criminal Division January Term, 2015
William H. Sorrell, Attorney General, and Paul Barkus, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Robert L. Sussman of Blodgett, Watts, Volk & Sussman, P.C., Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
Michael S. Kupersmith, J.
¶ 1. DOOLEY, J. Defendant appeals the decision of the Chittenden Superior Court concluding that he violated the condition of his probation requiring him to complete the Vermont Treatment Program for Sexual Abusers (VTPSA). The court found that defendant failed to complete the required program, but it refused to review the underlying disciplinary action of the Department of Corrections (DOC) that resulted in defendant’s removal from the program. We reverse the court’s conclusion that it had no jurisdiction to review the DOC’s decision and remand the matter for the court to conduct the appropriate review.
¶ 2. The trial court found the following facts. Defendant was charged with aggravated sexual assault and sentenced to a term of five-to-fifteen years, suspended except for four years to serve. The sentencing court imposed on defendant several probation conditions, including Condition 34, which states: “You shall participate fully in the VT Treatment program for sexual abusers during the course of your suspended sentence. Failure to complete said program while incarcerated may result in a violation of your probation.”
¶ 3. On November 16, 2012, defendant attended a brief VTPSA orientation where he went over the VTPSA Treatment Agreement and received the VTPSA Orientation Handbook. Included in the program rules outlined in the handbook is the “cardinal rule” against “physical violence or threats of physical violence.” As the handbook cautions, breaking this cardinal rule “may result in termination from the program.” Paragraph 4 of the Treatment Agreement states: “I have read the ‘VTPSA Orientation Handbook’ and the facility ‘Inmate Handbook’ and agree to follow all the rules and regulations in these handbooks.” On November 20, after asking a few clarifying questions about the program, defendant signed the agreement.
¶ 4. On April 19, 2013, defendant met with the corrections officer tasked with investigating two disciplinary reports lodged against him. During the meeting, defendant sat on the opposite side of the desk from the officer. The officer testified that defendant was upset and agitated, was speaking in a voice that was higher-pitched and louder than normal, and had become flush. She further testified that defendant crumpled the disciplinary report and threw it, hitting her in the face as she attempted to duck. She also testified that defendant’s “gross motor activity had increased to the point that she was concerned for her safety.”
¶ 5. Defendant disputed that he intentionally threw the paper at the corrections officer. He testified that he was not trying to hit the officer but merely was trying to throw the paper in the trash. The video recording of the incident, which was admitted into evidence in the trial court, showed that defendant lobbed the paper, but because of the grainy quality of the video, it was not possible to determine whether the paper was lobbed directly toward the corrections officer or to her right.
¶ 6. As a consequence of the April 19 incident, a Major Disciplinary Report (DR) was filed against defendant for violent and threatening behavior. Defendant pursued the appropriate administrative procedure, but the Major DR was upheld. On April 16, defendant was terminated from the program. The Notice of Termination states that defendant was terminated for the following reason:
Assault of a corrections officer on 04-09-13 in violation of VTPSA cardinal rule: “No physical violence or threats of physical violence.” As recorded on camera, when given DR paperwork by the officer you wadded up the paper, drew back and threw it at the officer, hitting her in the shoulder when she ducked to avoid the projectile.
Due to defendant’s termination from the program, a probation-violation complaint was filed for violation of Condition 34. [*]
¶ 7. On November 19, 2013, a hearing was held on defendant’s violation of probation. Defendant argued that: (1) he did not understand the scope of the rule against violent behavior; (2) the video clearly shows the paper-throwing incident was not violent; (3) because his behavior was not assaultive, he should not have been terminated from the program; and (4) because he ...