On Appeal from Superior Court, Orange Unit, Criminal Division Michael C. Pratt, J., Specially Assigned
William H. Sorrell, Attorney General, and Bridget C. Asay, Solicitor General, Montpelier, 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 appeals from the trial court's decision finding he violated two conditions of probation for his failure to complete sex offender programming to the satisfaction of his probation officer during the unsuspended portion of his sentence. We affirm.
¶ 2. On September 18, 2003, defendant was convicted of sexual assault of a minor in violation of 13 V.S.A. § 3252(a). He received a sentence of nineteen to twenty years, all suspended except eleven years. The sentencing court indicated that the split sentence was intended to deliver a "severe sanction" while giving defendant an option to make good on what he claimed was remorse and what he claimed to admit doing. For this reason, the trial court explained at sentencing that the split sentence was contingent on defendant completing sex offender treatment programming during the to-serve portion of his sentence.
¶ 3. In 2014, while serving the unsuspended portion of his sentence, defendant entered the Vermont Treatment Program for Sexual Abusers, a six-month sex offender treatment program. On June 10, 2014, defendant was suspended from the treatment program for ninety days for his failure to admit responsibility for the sexual assault underlying his conviction. At that time, defendant was advised that readmission to the treatment program required that he answer and submit to his caseworker five standard questions no later than one week prior to the end of the ninety-day suspension period.
¶ 4. On July 11, 2014, defendant's probation officer filed a complaint, alleging that defendant had violated the terms of his probation for failing to participate fully in and complete the Vermont Treatment Program for Sexual Offenders during the unsuspended portion of his sentence, which was set to end on September 8, 2014. The trial court found that as a result of a clerical mistake, error, or omission, there was no indication whether defendant had received a "certificate explicitly setting forth the conditions upon which he or she is being released, " as required under 28 V.S.A. § 252(c). On July 23, 2014, the trial court dismissed the complaint, finding no probable cause for a violation of probation because the affidavit in support of the complaint did not include an allegation that defendant had received written notice of the conditions of his release, as required under 28 V.S.A. § 252(c). See State v. Hemingway, 2014 VT 48, ¶ 23, 196 Vt. 441, 97 A.3d 465 (holding that without explicit written notice required by law, setting forth conditions on which defendant is being released on probation, defendant's revocation of probation based on probation violation is rendered invalid).
¶ 5. Consistent with V.R.Cr.P. 36, the trial court subsequently directed the trial court clerk to prepare a probation warrant placing defendant on probation with the standard conditions of probation, specifically including special conditions K and 31. Condition K requires that if ordered by the court or his probation officer, defendant must attend a counseling or training program, and must participate in that program to the satisfaction of his probation officer. Condition 31 requires defendant to "attend and complete the Vermont sex offender programming to the satisfaction of his probation officer during the unsuspended portion of his sentence."
¶ 6. On July 29, 2014, defendant received and signed the probation warrant, which included conditions K and 31.
¶ 7. At no time after defendant received the probation warrant did his probation officer reiterate the need to submit his answers to the questionnaire before re-applying to the treatment program.
¶ 8. On August 27, 2014, defendant's probation officer filed a complaint, alleging that defendant had violated conditions K and 31 by failing to complete the sex offender treatment program to the satisfaction of his probation officer. Defendant filed a motion to dismiss the complaint, asserting that the conditions were not enforceable until July 29, 2014, when he received the probation warrant, at which point it was impossible for him to comply with conditions K and 31 by completing the treatment program before the end of the unsuspended portion of his sentence on September 8, 2014. The trial court found that it was defendant's burden to prove condition 31 was impossible to perform, and cited to State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996). The trial court then concluded that defendant failed to meet this burden. The trial court thus scheduled the matter for a hearing on the merits of the probation violation complaint.
¶ 9. At the merits hearing on December 10, 2014, the trial court found defendant had violated the terms of his probation. That holding was based on testimony from defendant's probation officer, stating defendant had notice that answering the five standard questions was a pre-requisite for re-application to the treatment program, and that defendant had failed to do so as of the date of the hearing. When asked if defendant had answered the questions satisfactorily, he may ...