Motion for Reargument Denied August 31, 2015.
On Appeal from Superior Court, Orleans Unit, Criminal Division. Howard E. Van Benthuysen, J.
James Lillicrap, Orleans County Deputy State's Attorney, Newport, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Kaitlyn Keating, Legal Intern, Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] Defendant Jeremy Lucas appeals a trial court order finding him in violation of a probation condition, imposed as part of a deferred-sentencing agreement, requiring prior approval from a probation officer before he changed his residence. Defendant argues that because his probation conditions included two inconsistent provisions governing his choice of residence, he did not have adequate notice that his conduct would violate the conditions of his probation. Defendant also argues that the condition in question contained an overly broad delegation of authority to his probation officer, and that the trial court abused its discretion in revoking his deferred sentence because the violation was minor and the probation officer ultimately approved the place to which he had moved. We affirm.
[¶2] In August 2013, pursuant to a deferred-sentencing agreement, 13 V.S.A. § 7041, defendant pleaded guilty to a misdemeanor charge of disseminating indecent material to a minor, id. § 2802(a)(1).
The charge arose from an incident in which defendant sent a photograph of his genitals by text message to two minors, between thirteen and fifteen years old, and received a picture of one of the minor's breasts. Defendant entered his plea following a competency evaluation, in which defendant was found competent.
[¶3] The court accepted defendant's plea, entered a judgment of guilty, deferred defendant's sentence for two years, and issued a probation order. The probation conditions imposed by the court included what the court referred to as " standard conditions A-P inclusive." Condition G provided, " If you change your address or move, you must tell your probation officer within two days." (Emphasis added.) In addition, the court imposed what it referred to as " special sex offender conditions," which appeared on an attached form produced by the Department of Corrections listing other conditions, which could be checked off if applicable. The final checked box on this attached form stated, " You shall reside/work where your Probation Officer or designee approves. You shall not change your residence/employment without the prior permission of your Probation Officer or designee." (Emphasis added.) During the plea-entry hearing, the trial court outlined some, but not all, of the special conditions of probation to which defendant was subject. The court asked defendant if he understood these conditions. The court did not specifically discuss either residence condition with defendant.
[¶4] On October 23, 2013, the State filed a probation-violation complaint, alleging that defendant had violated the requirement that he not change his residence without the prior permission of his probation officer. Before the merits hearing on the probation-violation complaint, defendant moved to dismiss the complaint and strike the residency condition. In support of his motion, defendant argued that under State v. Freeman, 2013 VT 25, 193 Vt. 454, 70 A.3d 1008, the condition requiring that defendant's probation officer give advance approval of his residence is unconstitutional because it unduly restricts his liberty and gives too much discretion to probation officers.
[¶5] The undisputed testimony at the probation-violation hearing reflects the following. On October 3, 2013, defendant's mother telephoned defendant's probation officer, and left a message asking the probation officer to return her call. The probation officer returned the call, but did not reach defendant's mother. The following day, defendant's mother left the probation officer another message informing the officer that defendant had moved from his previous residence to her home. Defendant's mother testified that she had her son move to her home because she believed that his former residence, which was located near a preschool, two churches, and a school, was not a safe environment given his probation conditions. The probation officer investigated defendant's new residence ...