On Appeal from Superior Court, Chittenden Unit, Criminal Division James R. Crucitti, 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 challenges his sentence and a special condition of probation imposed following a guilty plea for sexual assault of a minor. On appeal, defendant argues that probation condition 43, which gives his probation officer unbridled authority over where defendant lives and works, is overbroad, as well as that the trial court erred as a matter of law in finding defendant would be in breach of his plea agreement if he elected to argue for a lighter prison sentence. We affirm defendant's sentence apart from probation condition 43, which we hold was imposed in plain error and reverse and remand the matter for the trial court to justify, make more specific, or strike.
¶ 2. In August 2013, defendant was charged with one count of second-degree unlawful restraint of a victim under the age of eighteen and one count of sexual assault on a victim under the age of sixteen. In April 2014, the parties signed and entered a plea agreement, which was contained in a court form headed by the statement, "The State of Vermont and Defendant named above enter into the following agreement." Under that language is entered the charge of sexual assault on a minor, the word "guilty" is circled and a sentence entered of five years to fifteen years all suspended except eighteen months. The form goes on to a section entitled, "Cases to be Dismissed by State." This section has an entry for docket No. 3371-8-13, which is this case, followed by "UR." We understand that the entry addresses the other count in this case, unlawful restraint. Another section is entitled "Special Probation Conditions, " which contains three specific entries. The agreement is signed by the prosecutor and, after the words "I have reviewed this agreement and understand it, " it is signed by both defendant and his counsel.
¶ 3. In September 2014, defendant filed "Sentencing Objections to PSI, " objecting to some proposed probation conditions and factual representations in the presentence investigation report. At the initial sentencing hearing on October 3, 2014, defendant's counsel notified the court his client intended to ask for the imposition of a lesser sentence than that called for by the plea agreement, "as the Court is permitted to do under [Vermont Rule of Criminal Procedure] 11." The State objected on the grounds that the plea bargain represented a "contract between the parties." The court agreed with defendant's interpretation of Rule 11 in that it allowed the court to "impose the sentence or a less onerous sentence" but was unclear as to how the Rule operated in the context of a binding plea agreement. Ultimately, the court granted a continuance, stating that during the interim the State could file a motion to withdraw from the plea agreement.
¶ 4. On October 14, 2014, the State filed a "Motion for Reconsideration Re Ruling on Enforcement of the Express Terms of the Plea Agreement or, in the alternative, State's Motion to Withdraw from Plea Agreement, " in which the State argued that if defendant sought a downward departure of his sentence, he would be in breach of the plea bargain, rendering it void. The State also emphasized that if the court denied its request to impose the bargained-for sentence, the State would withdraw the plea agreement. Defendant did not oppose the State's motion.
¶ 5. On October 29, 2014, the trial court issued an order granting the State's motion for reconsideration. The court agreed with the State that the plea agreement was "tantamount to a contract" and although the court is "not bound by its terms and retains the flexibility to issue a less onerous sentence, " defendant is bound by his earlier agreement and would be in breach if he requested a downward departure. The court concluded that if defendant proceeded to argue for a lesser sentence, the State was free to request "specific performance of the parties' agreement or [to] entirely rescind it."
¶ 6. At the sentencing hearing on November 25, 2014, defendant objected to several proposed probation conditions; however, no objection was made to condition 43, which permits a probationer to reside and work only where their probation officer approves and precludes a probationer from changing their residence or employment without prior permission from their probation officer. The court sentenced defendant consistent with the plea agreement. Defendant requested a stay of execution of his sentence pending appeal on the issue of whether he was permitted to argue for a downward departure of his sentence. The court denied the stay on December 2, 2014. This appeal followed.
¶ 7. On appeal, defendant raises two arguments: (1) that condition 43 of defendant's probation order giving his probation officer complete control to restrict his workplace and place of residence must be vacated as plain error because it is overbroad and unduly restrictive of his freedom and autonomy and not reasonably related to protecting the public from a recurrence of the crime that resulted in the imposition of probation; and (2) that the trial court erred as a matter of law in denying defendant the ability to argue for a less onerous sentence.
¶ 8. We can dispose of the first question rapidly. Defendant challenges condition 43 of his probation conditions, which states: "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." This condition was imposed on defendant as part of a probation order listing thirty-one conditions generally imposed on sex offenders; the trial court made no separate findings or proffered no additional explanations suggesting such a condition was "reasonably related to the offender's rehabilitation or necessary to reduce risks to public safety." 28 V.S.A. § 252(b)(18). This condition was not objected to below and so must be reviewed for plain error.
¶ 9. Defendant argues that this issue has already been determined by State v. Freeman, 2013 VT 25, ¶ 17, 193 Vt. 454, 70 A.3d 1008, where we held that the imposition of an identical probation condition "without any findings explaining its necessity" was plain error. In its brief to this Court, the State "agrees that condition 43 is substantially the same as the challenged condition in Freeman" and the matter should be remanded. We agree with the parties that Freeman controls and so strike condition 43 as plain ...