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State v. Kane

Supreme Court of Vermont

May 12, 2017

State of Vermont
Patricia Kane

         On Appeal from Superior Court, Bennington Unit, Criminal Division David A. Howard, J.

          Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

          Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.

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

          SKOGLUND, J.

         ¶ 1. Defendant Patricia Kane appeals the trial court's conclusion that she violated a special probation condition requiring her to abide by electronic monitoring, specifically a global position system (GPS) monitor. On appeal, she claims that the condition was an improper delegation of authority, failed to notify her of the conduct constituting a violation, and violated her constitutional right to travel and her right to be free of unreasonable searches. Defendant also claims that, after the probation revocation hearing, the court improperly imposed defendant's original conditions, including the electronic monitoring condition. We affirm.

         ¶ 2. Because defendant took her son from his legal custodian and crossed state lines, the State charged her with second degree unlawful restraint under 13 V.S.A. § 2406(a)(3) and custodial interference pursuant to 13 V.S.A. § 2451. An information and accompanying affidavit were filed on January 28, 2014, the same day a warrant was issued for defendant's arrest. Defendant was arrested and arraigned on January 31, 2014. Subsequently, on July 8, 2014, she pled guilty to the custodial interference charge, and the State dismissed the unlawful restraint charge.

         ¶ 3. After a contested sentencing hearing on October 2, 2014, the court sentenced defendant to two to five years, all suspended, except for one year. Additionally, the court imposed conditions A-S and several special conditions. Those special conditions included Condition 32, which required defendant to "abide by all electronic monitoring as directed by your probation officer, " and Conditions 33-35, which directed defendant to stay 500 feet from her son's school and residence, to avoid contacting her son without authorization from the court or the Department for Children and Families (DCF), and to obey all DCF orders. Defendant did not directly appeal these conditions.

         ¶ 4. After serving the unsuspended portion of her sentence, defendant was released to the community on the probation conditions imposed by the court. Under Condition 32, the Department of Corrections (DOC) required defendant to be electronically monitored using a GPS unit. The GPS unit used to monitor defendant has three components: the first part, the base charging station, connects to a standard electrical outlet and to defendant's telephone landline; the second component, an ankle bracelet, is a small black box that is permanently attached to defendant's ankle with a rubber strap; and the third piece is an XT unit, which must be worn by defendant unless it is being charged. To maintain a charge, the XT unit must be charged in the base charging station for two hours, twice a day, for a total of four hours. While the XT unit is charging, defendant must remain close to the base charging station.

         ¶ 5. The GPS unit reports defendant's location and any violations either via cellular service or via the base charging station's landline connection. If there is no cellular service-as is true at defendant's home-the GPS unit does not report defendant's location until the XT unit links with the base charging station and the data can be uploaded using the base charging station's landline connection. When defendant commits certain violations, such as remaining out past curfew or allowing the battery to deplete, a text message displays on the XT unit explaining how defendant can fix the issue; for example, the message instructs defendant to return home or to place the XT unit in the charger. Similarly, if defendant disconnects the base charging station's landline connection and cellular service is unavailable in the area, a message indicates that the base charging station and XT unit are unable to connect. Violations such as these are recorded by the 3M Electronic Monitoring Website, and an email alert is sent to a community corrections officer (CCO). CCOs are responsible for managing electronic monitoring and communicating with defendant and her probation officers regarding compliance. Generally, after receiving an email alert, a CCO will contact defendant and attempt to remedy the violation.

         ¶ 6. Over the course of several months-November 3, 2015, December 31, 2015, and February 2, 2016-the State charged defendant with three violations of probation (VOPs) involving her GPS unit and curfew.[1] A VOP revocation hearing on these three VOPs began on March 31, 2016.[2]

         ¶ 7. The State's case began with the testimony of defendant's first probation officer. The probation officer testified that the alleged November 2015 violation was based on defendant's failure to charge her XT unit twice daily and, as a result, defendant's failure to abide by all electronic monitoring as directed by the probation officer. Despite the charging requirement and the probation officer's attempts to address the charging problem without filing a VOP, defendant repeatedly and continually failed to charge the XT unit, including a period during which the unit was not charged for forty-eight hours. When questioned about her inability to keep the XT unit charged, defendant variously told the officer that it was not convenient to charge when she travelled, that her rabbit chewed the charger's cord, and that she did not believe that she should be monitored with a GPS unit. Without the GPS unit, the probation officer testified that she could not effectively monitor defendant or ensure that defendant did not violate the condition requiring her to stay five hundred feet from her son's school and residence.

         ¶ 8. The next witness for the State was the probation officer's supervisor. The supervisor corroborated the probation officer's testimony that keeping the GPS unit charged was an ongoing issue. According to the supervisor, defendant first explained that she could not keep the unit charged because of a defective base charging station, so the probation office provided her with a new unit. The supervisor also reiterated that the electronic monitoring condition, as implemented with a GPS unit, was a necessary condition based on defendant's conviction.

         ¶ 9. Probationer's CCOs testified to similar effect. The first CCO testified that defendant failed to keep the XT unit charged, despite clear instructions that the unit should be charged twice daily, for two hours at a time. For example, on October 4, 2015, the CCO received an email alert that the XT unit's battery was dead; when the officer contacted defendant, she explained that a rabbit chewed the charger cord and that she was in Newport, Vermont, and unable to get a new charger at that time. Likewise, another CCO testified that, although he had many conversations with defendant about keeping her XT unit charged, a printed report demonstrated multiple instances when the unit was not charged. In general, moreover, all of the CCOs indicated that they never discovered any mechanical issue with the GPS unit when they inspected it.

         ¶ 10. Defendant's second probation officer testified to the basis for the February 2016 VOP charges, which also involved violating the rules of the electronic monitoring condition. According to this probation officer, defendant failed to comply with the electronic monitoring requirement almost daily. Moreover, like defendant's first officer, the second officer testified that monitoring was required based on the circumstances of defendant's conviction, specifically to ensure that she was not contacting her son.

         ¶ 11. The second probation officer's testimony was reinforced by another CCO's testimony. This CCO testified that he began monitoring defendant in early January 2016 and, during an eighteen-day period, he noticed ninety-six violations. Primarily, these violations involved disconnecting the base charging station from the telephone landline and plugging only the defendant's home phone into the landline, including a period when the base charging station was disconnected from the landline for sixty-eight hours. According to the CCO, defendant explained that she disconnected the base charging station because the unit periodically made the sound of a fax machine on her home phone and this sound made the phone unusable. But the CCO indicated that he did not find any problem with the phone line or the base charging station when he tested the line.

         ¶ 12. Defendant, who represented herself at the VOP hearing, did not present any evidence. In her closing arguments, she argued that the electronic monitoring condition was an improper delegation of authority to the probation officers, that the lengthy electronic monitoring period was excessive given that she was a nonviolent offender, and that her probation could not be revoked solely on the basis of the accumulating technical violations, without considering her intent and other behavior during the time period. The State countered by claiming the evidence established defendant had repeated opportunities to comply with the electronic monitoring requirement and continually failed to do so, including a number of lengthy instances when the GPS unit was disconnected. Given the repeated and substantial violations, the State requested that the court revoke probation and require defendant to serve the remainder of her sentence.

         ¶ 13. In an oral decision from the bench, the court found that defendant violated Condition 32, the electronic monitoring condition. First, the court reiterated its previous conclusion that a legitimate purpose existed for imposing Condition 32 based on the nature of the offense and the need to ensure defendant did not contact her son without permission.[3] The court found that credible and convincing evidence established that defendant violated this valid condition by willfully failing to abide by the monitoring requirements, including a number of times when the GPS unit was not working for lengthy periods of time. The court acknowledged that some instances when the GPS unit malfunctioned did not appear to be defendant's fault. The court further concluded, however, that the length of time the GPS unit was unconnected could not be credibly attributed to a phone call or to a mistakenly charged battery, and instead demonstrated that defendant willfully chose not to abide by Condition 32. After finding defendant violated her probation conditions, [4] the court revoked her probation but did not impose the full remaining sentence. Instead, given the facts of the underlying charge and defendant's lack of criminal history, the court split defendant's sentence again, so that the modified sentence imposed was two to five years, all suspended, except for eighteen months with credit for time served. In addition, the court continued the same probation conditions as defendant's original sentence, including the electronic monitoring condition.

         ¶ 14. Probationer appealed to this Court. We review a trial court's conclusion that a defendant violated a probation condition in two steps. State v. Bostwick, 2014 VT 97, ¶ 11, 197 Vt. 345, 103 A.3d 476. First, we "examine the trial court's factual findings" and will "uphold them if supported by credible evidence." Id. (quotation omitted). Next, we look to the trial court's legal conclusions, affirming them if they are "reasonably supported by the findings and [do] not constitute an erroneous interpretation of the law." Id. (quotation omitted).

         ¶ 15. On appeal, defendant argues that Condition 32 was an improper delegation of authority to the probation officer, that the condition failed to notify defendant of the conduct constituting a violation, and that Condition 32 violated defendant's constitutional rights because the condition is a warrantless search and unduly burdens defendant's privacy and travel rights. In addition, defendant claims that the court erred when it continued ...

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