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State v. Levitt

Supreme Court of Vermont

May 27, 2016

State of Vermont
v.
Willy Levitt

         On Appeal from Superior Court, Chittenden Unit, Criminal Division March Term, 2016

          Michael S. Kupersmith, J. Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          DOOLEY, J.

         ¶ 1. Defendant was convicted of simple assault in a jury trial in December 2014 and placed on probation. He requests that this Court reverse his conviction and remand for a new trial because the trial court improperly defined reasonable doubt for the jury, thus lowering the standard of proof. In the alternative, he raises three arguments regarding his probation conditions: (1) that they were unlawfully imposed on the grounds that the sentencing court mistakenly believed they were "standard"; (2) that the court failed to inform defendant of the content of the conditions at sentencing; and (3) that the imposed individual conditions were overbroad and vague, impermissibly delegated court authority to his probation officer, were unrelated to his offense, rehabilitation, or public safety, and were not supported by factual findings. We affirm defendant's conviction and conditions H, J, and L, but remand on condition I and strike all the other complained-of conditions.

         ¶ 2. Defendant was tried for simple assault in a jury trial on December 15, 2014, stemming from an incident at a protest at Vermont Gas headquarters in May 2014. In charging the jury, the trial judge informed the jurors that the State was obligated to prove defendant's guilt beyond a reasonable doubt, stating that:

Few things in life are absolutely certain. To say that you believe something beyond a reasonable doubt is to say that you are convinced of it with great certainty. But proof beyond a reasonable doubt does not require you to be absolutely or 100 percent certain. A reasonable doubt may arise from the evidence or from the lack of evidence.

Defendant did not object to this instruction.

         ¶ 3. The jury returned a guilty verdict. Defendant was sentenced in a hearing on March 13, 2015. The state argued for fourteen days of incarceration, while the defense requested a fine or suspended sentence. No evidence was presented, and no mention of probation was made. Ultimately, the court imposed a sentence of three to six months, suspended but for twenty days of work crew, and a $300 fine and a surcharge. The court also placed defendant on probation, imposing-without naming or describing-"standard conditions A through N, and also condition P", which are as follows:

A. You shall notify your probation officer within 48 hours if you are arrested or given a citation for a new offense.
B. You must not be convicted of another crime.
C. You must regularly work at a job or look for work, if your probation officer tells you to do so. You must get job training if your probation officer tells you to do.
D. You must regularly work at a community service job if the court orders you to do so.
E. You must support your dependents and meet other family responsibilities.
F. You must meet with your probation officer or designee whenever he/she tells you to do so.
G. If you change your address or move, you must tell your probation officer within two days.
H. If you change or lose your job, you must tell your probation officer within two days.
I. You cannot leave the State without written permission from your probation officer.
J. Upon request, and without delay, you must allow the probation officer to visit you wherever you are staying.
K. If the probation officer or the court orders you to go to any counseling or training program, you must do so. You must participate to the ...

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