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In re Jankowski

Supreme Court of Vermont

October 14, 2016

In re Mark Jankowski

         On Appeal from Superior Court, Rutland Unit, Civil Division

          William D. Cohen, J. (motion for summary judgment); Cortland Corsones, J. (final judgment)

          Allison N. Fulcher of Martin & Associates, Barre, for Petitioner-Appellant.

          Rosemary M. Kennedy, Rutland County State's Attorney, and Ian C. Sullivan, Deputy State's Attorney, Rutland, for Respondent-Appellee.

          PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Bent, Supr. J., Specially Assigned.

          DOOLEY, J.

         ¶ 1. Petitioner appeals from a denial of his petition for post-conviction relief (PCR). We hold that petitioner is entitled to PCR to overturn his probation revocation. We remand for a new determination regarding whether his probation should be revoked and a new sentencing hearing if it is revoked.

         ¶ 2. In November 2010, petitioner pled guilty to sexual assault on a child, and was sentenced to a term of five to twenty years, all suspended except for three years to serve, and probation. He was charged with violation of probation (VOP) in August 2011. A VOP merits hearing was held in December 2011. Following a contested evidentiary hearing, the court issued a written decision finding that petitioner had violated a condition of his probation. At the conclusion of its decision, the court indicated that the matter would be "set for a sentencing hearing." At the sentencing hearing on March 13, 2012, the court asked if it would be a contested sentencing hearing, prompting counsel for the State and for petitioner to ask for time to confer. Their request was granted. Upon their return to court with petitioner, counsel informed the court that the parties had reached an agreement. Petitioner's sentence would be amended from a five-to-twenty-year split sentence with three years to serve to a four-to-twenty-years straight sentence to serve. His probation would be revoked. He would also be given credit for all time served. Defense counsel indicated that he had spoken with petitioner and stated that petitioner had agreed with the resolution. The court accepted the agreement.

         ¶ 3. In March 2013, petitioner filed a pro se PCR petition, and later an amended petition through counsel, alleging that the VOP sentencing process violated his constitutional rights. He asserted that no sentencing hearing was held, he did not waive such hearing, and he was never personally addressed by the court. The PCR court granted summary judgment to the State. It concluded that petitioner's rights were satisfied when he was afforded a full evidentiary hearing on the merits portion of the revocation hearing. This appeal followed.

         ¶ 4. Petitioner reiterates his argument that he was deprived of due process by the court's failure to hold a hearing on the sentencing portion of the VOP proceeding without a valid waiver. Petitioner contends that Vermont Rule of Criminal Procedure 32.1 codifies due process requirements established by the U.S. Supreme Court, and that the Court established that a probation revocation hearing includes not only a hearing on the merits of the violation, but also a hearing on whether revocation is warranted.

         ¶ 5. We review the court's decision de novo, using the same standard as the trial court. In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. Summary judgment is appropriate if there are no disputes of material fact and any party is entitled to judgment as a matter of law. Id.

         ¶ 6. We note at the outset the procedure by which a court may revoke a defendant's probation and impose the consequences of revocation. Following the summons or arrest of a probationer who has allegedly violated a condition or conditions of probation, a court must hold an evidentiary hearing that includes notice to the probationer, legal counsel if requested, and a record that establishes the alleged violation by a preponderance of the evidence. 28 V.S.A. § 301; id. § 302(a). This is the violation stage of the proceeding. If a violation is established, the court may elect to continue probation, modify conditions of probation, conference with the probationer, issue a warning, or require the probationer to remain on probation but serve a portion of her sentence. Id. § 304(b). The court may also, "in its discretion, " revoke probation and order a probationer to serve the balance of her sentence in prison or in the community. Id. § 304(a). Probation shall be revoked only if the court finds, "on the basis of the original offense and the intervening conduct of the probationer, " that confinement is necessary for public safety, the probationer needs treatment that can be best provided in a correctional facility, or a failure to revoke probation would "unduly depreciate the seriousness of the violation." Id. § 303(b). This is the disposition phase of the proceeding.

         ¶ 7. Defendant has not challenged the court's determination that he violated one of the conditions of his probation or the process by which the court reached that conclusion. The sole question is whether the court erred in accepting an alleged agreement under which defendant waived his right to contest whether his probation should be revoked, waived his right to address the proper sentence after revocation of probation, and waived his right to appeal, all without the written or on-the-record-agreement of defendant. The PCR court appeared to hold that once the court finds defendant violated a condition of probation, defendant no longer has any due process or rule-based procedural rights such that his right to personal agreement with a knowing and intelligent waiver of the right to contest probation revocation is unnecessary. We disagree for three reasons.

         ¶ 8. Firstly, the PCR court appeared to believe that defendant's due process rights vanished following the evidentiary hearing on the alleged violation of a probation condition; in other words, because the VOP court afforded defendant notice, an opportunity to confront adverse witnesses, and a chance to present evidence during the violation stage of the probation revocation proceeding, there was no corollary obligation to provide any procedural rights thereafter. However, the procedural rights afforded to a probationer to permit her to contest allegations of a violation of probation extend from the initial charge through revocation; a delineation between adjudication and probation revocation has no basis in the law of probation-be it our criminal rules, our precedent, federal cases, or the law of our sister states. Rather, the procedural rights afforded to a probationer are available until the court rules that probation will be revoked.

         ¶ 9. Albeit in the context of parole revocation, the due process procedural requirements for revocation were first set forth by the U.S. Supreme Court in Morrissey v. Brewer. 408 U.S. 471 (1972). In that case, the federal high court held that, following a preliminary hearing, a parolee may request a revocation hearing during which he "must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." Id. at 488 (emphasis added); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (concluding Morrissey also applies to probation revocation proceedings). The Morrissey Court recognized that the decision to revoke parole typically involves two steps: the factual question, wherein a court determines whether a parolee has "in fact acted in violation of one or more conditions of his parole, " and the discretionary question, which seeks to answer whether the parolee should be recommitted to an institution or punished in some other fashion. Morrissey, 408 U.S. at 479-80. The U.S. Supreme Court emphasized that the second component was not so wholly a discretionary matter that procedural guarantees were "administratively intolerable." Id. at 483. In particular, the Court noted that society has an interest in rehabilitating parolees, and therefore an interest in preventing the erroneous revocation of parole and in treating parolees with "basic fairness" which supports the recognition of due process rights throughout the proceedings. Id. at 484. To that end, the Court concluded that at a hearing to determine whether "the facts as determined warrant revocation, " a court must, at a minimum, provide written notice of the claimed violations, disclose all evidence against the defendant, provide an opportunity to be "heard in person" as well as present witnesses and evidence, allow the defendant to confront adverse witnesses, preside over the case through a neutral and detached hearing body, and finally, provide a written statement articulating the evidence relied on and reasons for revoking parole. Id. at 488-89.

         ¶ 10. In Black v. Romano, the U.S. Supreme Court further elaborated on Morrissey with respect to the coverage and extent of the due process right. 471 U.S. 606 (1985). In Black, the trial court revoked probation without expressly stating that it considered alternatives to revocation. The Court rejected the claim that due process required consideration of an alternative, but reiterated the due process procedural protections of Morrissey and their applicability at the revocation stage:

Where such discretion [with respect to revocation] exists, however, the parolee or probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.

Id. at 612. The Court went on to hold that probationer received the process that was due because he received "the necessary written statement explaining the evidence relied upon and the reason for the decision to revoke probation" and "he had a full opportunity to present mitigating factors to the sentencing judge and to ...


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