On Appeal from Superior Court, Bennington Unit, Criminal Division David A. Howard, J.
Erica A. Marthage, Bennington County State's Attorney, and Christina Rainville, Chief Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Defendant, a convicted sex offender, appeals the imposition of six probation conditions ordered by the sentencing court. Defendant contends four of the conditions-that he reside or work where his probation officer approves, attend counseling programs ordered by his probation officer, refrain from violent and threatening behavior, and avoid areas where children congregate-have already been deemed unlawful by this Court and should be struck down. He further argues that the remaining two conditions-giving his probation officer warrantless search and seizure privileges and banning home computer and internet usage-impose unduly restrictive and invasive terms that infringe upon defendant's liberty, privacy, and autonomy rights. We agree with defendant as to the residence and employment, counseling, search and seizure, and home computer and internet use conditions, and remand to the sentencing court for further justification, amendment, or elimination. We affirm the imposition of the conditions prohibiting violent or threatening behavior and restricting access to areas where children congregate.
¶ 2. Defendant was convicted of lewd and lascivious behavior with a twelve year old boy in 2013 and sentenced to two to six years in prison, with all suspended except for twenty months with credit for time served. The court also imposed multiple probation conditions. Defendant appealed these conditions to this Court, arguing that the "boilerplate" restrictions were not sufficiently individualized, violated his due process rights on account of their vagueness and ambiguity, impermissibly delegated court authority to his probation officer, and were unduly restrictive and invasive in violation of substantive due process. State v. Cornell, 2014 VT 82, ¶ 1, 197 Vt. 294, 103 A.3d 469. Although defendant had already raised these issues at the trial court level in response to a limited remand from this Court, the court did not address them, stating its authority was "limited to clarifying the conditions it had already imposed" and advising that defendant's remedy "lies in his appeal." Id. ¶¶ 1, 5. However, we determined that the motion to reconsider the imposed conditions was properly before the court and remanded in order that the court could "resolve defendant's challenges." Id. ¶ 1.
¶ 3. On remand, the court took testimony from defendant's probation officer and considered defendant's supplemental filings, in which he proposed alternative conditions. On January 26, 2015, the court issued an order replacing the probation conditions that had been previously ordered. The order imposed twenty-one probation conditions, including, over defendant's objections, the following:
8. If the probation officer or the court orders you to go to any counseling or traiing (sic) program, you must do so. You must participate to the reasonable satisfaction of the probation officer.
10. Violent or threatening behavior or conduct is not allowed at any time.
15. You shall not purchase, possess, or use pornography or erotica of minor children. You may not access or loiter or go to places where children are known to congregate, including parks, playgrounds, elementary, or high school grounds, unless approved in advance by your probation officer or designee.
16. You are required to give your probation officer or designee search and seizure privileges to search without a warrant and confiscate if necessary illegal drugs, pornography or erotica of minor children, digital media, computers, or any other item which may constitute a violation of your probation terms.
18. You must not own or possess a computer at your residence and you may not access the internet at your place of employment or anywhere else unless approved in advance by your probation officer or designee. You will allow your probation officer or designee to monitor your computer/internet usage, including through the use of specific software for monitoring sex offenders. You will also pay any reasonable charge associated with this.
19. You shall reside/work where your probation officer or designee approves.
¶ 4. On March 4, 2015, the court conducted a third hearing and made oral findings in support of the January 2015 probation order. Defendant's timely appeal, filed after the court's findings and probation conditions were issued, followed.
¶ 5. On appeal,  defendant argues (1) that conditions 8, 10, 15, and 19 have already been deemed unlawful and should not have been imposed; and (2) that conditions 16 and 18 impermissibly infringe on defendant's liberty, privacy, and autonomy rights, as guaranteed by the United States and Vermont Constitutions, and were imposed without connection to defendant's offense or rehabilitation.
¶ 6. A sentencing court has authority to establish probation conditions that are reasonably related to the crime committed and have been deemed necessary to "ensure that the offender will lead a law-abiding life." 28 V.S.A. § 252(a). Probation conditions may not be "unduly restrictive of the probationer's liberty or autonomy." State v. Whitchurch, 155 Vt. 134, 137, 577 A.2d 690, 692 (1990) (quotation omitted). "Although the trial court has discretion in determining appropriate conditions of probation, we are required to find error where . . . discretion has been exercised to a clearly unreasonable extent." State v. Moses, 159 Vt. 294, 297, 618 A.2d 478, 480 (1992) (citation omitted).
¶ 7. Before considering defendant's specific challenges, we make one general observation. At sentencing, the State repeatedly took the position that the probation conditions were necessary for all sex offenders and had been developed and drafted specifically for this purpose. The witness that the State provided, however, was a local probation officer who apparently had no part in formulating the conditions and was not an expert on the State's general-need proposition. His testimony often fell back on the general proposition that a condition was needed because defendant is a sex offender, with no attempt to tie the specific condition to defendant's individual circumstances and no support for the general proposition. We note here the language of 28 V.S.A. § 252(b)(18): a court "shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender's rehabilitation or necessary to reduce risk to public safety." (emphasis added). At a minimum therefore, the statute requires more than the bare recitation that a defendant is a sex offender and that incursions onto his liberty are justifiable on that basis alone.
¶ 8. We can quickly address condition 19 and so consider it first. Defendant challenges a condition that states "[Y]ou shall reside/work where your probation officer or designee approves, " on the grounds that this issue has already been determined by State v. Freeman, 2013 VT 25, 193 Vt. 454, 70 A.3d 1008. In that case, we held that the imposition of a near-identical condition "[w]ithout any findings indicating the necessity of such a broad condition in this particular case" was plain error. Id. ¶ 17. Defendant argues that the sentencing court's findings in this instance were insufficient to justify the imposition of this broad condition. We agree.
¶ 9. Although the State distinguishes this case from Freeman on the grounds that the court in this instance made "specific findings" to justify the condition, we believe the findings, and the evidence on which they were made, are so sparse as to be effectively absent. Here, there was evidence from defendant's probation officer and findings based on that evidence. In the hearing on probation conditions held December 3, 2014, defendant's probation officer testified that condition 9 was necessary because officers "want to make sure [defendant is not living] near a school, a daycare center, where minors might be present" and ensure that "he's not working at a place . . . like a video shop or something like that or . . . a toy store or places which mainly is a theme for children." In a March 4, 2015 ...