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State v. Love

Supreme Court of Vermont

July 21, 2017

State of Vermont
v.
Bryan Love

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

          Jonathan Ward, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

          Peter F. Langrock and Devin McLaughlin of Langrock Sperry & Wool, LLP, Middlebury, for Defendant-Appellant.

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

          DOOLEY, J.

         ¶ 1. In this appeal, we consider defendant's request, over the State's objection, to have his probation obligations terminated and his criminal convictions expunged halfway through his stipulated deferred-sentence term. The trial court concluded that it had no authority to grant such relief. We agree, and therefore affirm the trial court's decision.

         ¶ 2. The record indicates the following. In December 2012, defendant was charged with two felony counts of lewd and lascivious conduct with a child, and he faced the possibility of significant jail time. By virtue of a plea agreement with the State, defendant instead pled guilty to two misdemeanor counts of prohibited acts, with a "4 year deferred sentence." The deferred sentence required the State's consent, and it gave defendant the opportunity to avoid criminal convictions on these counts altogether. See 13 V.S.A. § 7041(a) (stating that "court may defer sentencing and place the respondent on probation upon such terms and conditions as it may require if a written agreement concerning the deferring of sentence is entered into between the state's attorney and the respondent and filed with the clerk of the court"). If defendant fulfilled "the terms of probation and of the deferred sentence agreement, " the court would "strike the adjudication of guilt and discharge" him. Id. § 7041(e). If he violated "the terms of probation or of the deferred sentence agreement, " he would be sentenced. Id. As part of his plea agreement, defendant also agreed that he would "not appeal his substantiation by DCF of the conduct at issue in this case." When the trial court accepted defendant's plea agreement, that agreement became binding on the court and the parties. See V.R.Cr.P. 11(e)(2), (3).

         ¶ 3. To effectuate the plea agreement, the parties executed a deferred-sentence agreement using a standardized form. As indicated above, the deferred-sentence agreement was entered into by the state's attorney and defendant pursuant to 13 V.S.A. § 7041(a). It was not established by the alternative route provided in 13 V.S.A. § 7041(b), which authorizes a court to defer sentencing and place the respondent on probation without a written agreement between the state's attorney and the respondent under certain conditions, none of which are present in this case. This deferred-sentence agreement required the authorization or approval of the state's attorney.

         ¶ 4. Like the plea agreement, this agreement identified the term of the deferred sentence as "4 years and 0 months, " and provided more specifically that "the duration of this deferred sentence agreement is from 3/30/2014 to 3/29/2018." Defendant agreed to abide by the agreement's terms, and further agreed that "[d]uring the period that this deferred sentence is in effect, " he would abide by specified probation conditions, including sex offender conditions. The court signed the agreement, affirming preprinted language that: "[b]ased on the foregoing, a Deferred Sentence is ORDERED pursuant to 13 V.S.A. § 7041. The defendant is placed on probation in the care and custody of the Commissioner of Corrections until further order of the Court." Defendant acknowledged that if he violated the conditions of the deferred sentence, the court would impose sentence. If he fulfilled the terms of probation and the deferred-sentence agreement, the court would "strike the adjudication of guilty and discharge the defendant. Upon discharge, the record of the criminal proceedings shall be expunged."

         ¶ 5. Defendant also signed a deferred-sentence probation order. This order provided an expiration date for defendant's "Deferred Sentence Term, " although it referenced a plainly incorrect date of February 29, 1900. The order reiterated that defendant was "placed on probation in the care and custody of the Commissioner of Corrections for the term(s) as shown above."[1]

         ¶ 6. Two years after executing these agreements, defendant sought to reduce the length of his deferred-sentence term, although he labeled his request a motion to "shorten probation." Apart from the legal issue, defendant summarized why the court should exercise its discretion to reduce the deferment period and terminate probation. He argued that the extensive probation conditions greatly restricted his ability to find a job because they prohibited contact with children, out-of-state travel, and computer use. Defendant also argued that in one instance the presence of the convictions excluded him from consideration for a job. Defendant maintained that requiring him to complete the four-year term to which he had agreed was "a matter of form and serve[d] no useful purpose."[2]

         ¶ 7. The State opposed defendant's request, arguing that defendant had agreed to defer sentencing for four years, and because that period had not passed, he had not fulfilled the terms of his agreement and could not be discharged pursuant to 13 V.S.A. § 7041. While the State did not object to defendant's attempt to repudiate his agreement, it asserted that the only recourse would be for the court to impose sentence and place permanent criminal convictions on defendant's record. The trial court denied defendant's motion, concluding that it lacked authority to grant the requested relief.[3] Defendant appeals from this decision.

         ¶ 8. Defendant asserts that the court erred in concluding that it could not discharge him from probation prior to the expiration of the four-year deferred-sentence term. According to defendant, there is nothing in the deferred-sentencing law that prohibits early discharge from probation, and thus, 28 V.S.A. § 251-the statute that authorizes early discharge from probation when the court finds that it is "warranted by the conduct of the offender and the ends of justice"- controls. Defendant asserts that ordinary probationers can be discharged early despite having agreed to a fixed term of probation, and the same is true in the deferred-sentencing context. He argues that such early discharge was acknowledged as appropriate in State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992), and that he retained the right to such relief unless he explicitly waived it. Defendant also asserts that because he was placed on probation "until further order of the court, " the court may discharge him at any time. Finally, as we note in footnote two, defendant argues that the shortening of the period of probation should automatically shorten the period of deferment and the accompanying period for expungement because the deferment serves no purpose once the period of probation is shortened and ended.

         ¶ 9. Before we reach the analysis in this case, it is helpful to lay out a roadmap for this decision. We address only circumstances under a deferred-sentence agreement where the State does not consent to either a reduction of the term of sentence deferment or a reduction of the period of probation, the circumstances present in this case. We do not address the trial court's authority when the State and the defendant agree on a reduction of the period of probation or deferment or both.[4]

         ¶ 10. Defendant argues that he should prevail without the consent of the State, first, under the statutory language, and second, under the specific language of the deferred-sentence order in this case. Although we use the word "prevail, " defendant has argued for two levels of success: (1) complete success under which the trial court can shorten both his period of probation and the period of deferment, or (2) a partial success under which the trial court can shorten the period of probation if it decides a reduced period is appropriate, but cannot reduce the period of deferment to advance the date of expungement of the conviction. We examine first whether defendant can prevail at either of these levels under the statutes, without consideration of the language of the deferred-sentence order. Thereafter, we consider the effect of the language of the deferred-sentence order.

         ¶ 11. We recognize that there may be variations in these outcomes. For example, we could rule, as defendant argues, that a reduction in the period of probation automatically reduces the period of deferment or, alternatively, rule that whether to shorten the period of deferment lies within the trial ...


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