On Appeal from v. Superior Court, Orange Unit, Criminal Division
William H. Sorrell, Attorney General, and Evan Meenan, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Joshua O’Hara, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Burgess, J. (Ret.), Specially Assigned
¶ 1. Defendant Thomas A. Gauthier appeals from the trial court's order revoking his probation. Defendant argues that the probation conditions that the court determined he had violated are unenforceable because he claims the conditions were not part of "a certificate explicitly setting forth the conditions" of probation, as required by 28 V.S.A. § 252(c). Defendant also raises challenges to specific conditions, arguing that they are contradictory or vague and not enforceable. We affirm.
¶ 2. The facts are taken from the record and are uncontested, except when indicated.
In May 2009, defendant was charged with one count of engaging in a sexual act with a person under the age of sixteen, 13 V.S.A. § 3252(c), a felony, and one count of furnishing alcohol to a person under the age of twenty-one, 7 V.S.A. § 658(a)(1). The charges arose from an April 2009 incident in which defendant, then age twenty, had intercourse with a fifteen-year-old girl in the back of a car after a night of drinking alcohol and smoking marijuana.
¶ 3. In November 2009, defendant and the State entered into a deferred-sentencing agreement. See 13 V.S.A. § 7041(a) (authorizing court to defer sentencing and place defendant on probation under conditions). Under the terms of that agreement, the State dismissed the furnishing-alcohol charge, defendant pleaded guilty to the sexual-act charge, and sentencing was deferred for five years while defendant was placed on probation, which required him to conform to several conditions. The trial court accepted the agreement in March 2010.
¶ 4. In June 2010, the State filed a violation-of-probation complaint against defendant, alleging that he had been out of state without permission in violation of one of the conditions in his deferred-sentence agreement. Defendant admitted the violation, and the trial court imposed sentence at an October 2010 hearing. See id. § 7041(e) ("Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence.").
¶ 5. At the sentencing hearing in connection with that violation of probation, the State proposed a deal whereby the court would impose a zero-to-four-year sentence, all suspended, and would impose the probation conditions in the original deferred-sentencing agreement as well as "some special sex-offender treatment conditions that the Department of Corrections uses in these types of cases." Defendant expressed concern that the condition restricting contact with people under the age of eighteen would interfere with his relationship with his then-nine-month-old daughter, but ultimately accepted the State's offer. The court imposed "a sentence of zero to four years, all suspended with probation; the same probationary conditions that previously existed, as well as the special sex-offender conditions that have been marked as State's 1."
¶ 6. The probation order issued by the court consists of one page with a two-page attachment. The initial page lists several conditions and references "State's 1, attached conditions, " and the two-page attachment is labeled with a "State's 1" exhibit sticker. The attachment contains a list of additional conditions, and each condition is preceded by a box. None of the boxes are checked. The probation order was signed by the court, defendant's probation officer, and defendant. Defendant did not appeal his sentence. Subsequently, defendant filed motions to modify several conditions, including some on the attached list, indicating that he understood he was bound by them.
¶ 7. Defendant's probation officer filed several probation-violation complaints, alleging defendant had accessed social media sites and pornography, possessed alcohol, been in a place where children congregate, and violated his curfew. Defendant disputed the violations, but did not argue that the probation order failed to provide him with proper statutory notice. Following a contested hearing, the court found that defendant violated the following probation conditions: (1) drinking alcohol; (2) accessing and loitering in places where children congregate; and (3) violating his curfew. Based on these violations, the court revoked defendant's probation.
¶ 8. On appeal from this revocation, defendant argues for the first time that the conditions are not enforceable because the order did not meet the statutory notice requirement. The statute requires that "[w]hen an offender is placed on probation, he or she shall be given a certificate explicitly setting forth the conditions upon which he or she is being released." 28 V.S.A. § 252(c). According to defendant the "special sex-offender conditions" listed on the "State's 1" attachment are unenforceable because the probation order did not provide him adequate notice that he was subject to each and every one of the conditions listed, but not checked, on that document.
¶ 9. Defendant's challenge to the validity of the probation conditions based on alleged noncompliance with 28 V.S.A. § 252(c) is unpreserved. Defendant did not raise this challenge in the probation-revocation proceeding that is now on appeal.
¶ 10. In these circumstances, defendant can prevail only if there was plain error. A claim of error rises to the level of plain error only if "(1) there is error; (2) the error is obvious; (3) the error affects substantial rights and results in prejudice to the defendant; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." State v.Waters, 2013 VT 109, ¶ 16, 195 Vt. 233, 87 A.3d 512. Applying these factors, we conclude there was no plain error because even if the first element is present, the last three are not. The error, if any, was not obvious. There was no wholescale failure to provide defendant with a document listing his probation conditions. In fact, defendant received a probation order listing all of the conditions. Further, defendant was not prejudiced by any failure to comply with § 252(c) because he was fully aware of the information that was allegedly not provided. Finally, the error, if any, does not seriously affect "the fairness, integrity or public reputation of ...