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State v. Urban

Supreme Court of Vermont

February 24, 2018

State of Vermont
Landon T. Urban

         On Appeal from Superior Court, Addison Unit, Criminal Division

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

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

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

          EATON, J.

         ¶ 1. Defendant appeals from the trial court's imposition of probationary conditions in connection with a plea agreement. He contends a condition forbidding the purchase, possession, or consumption of alcohol, to which he objected at sentencing, violates public policy or is unduly restrictive. He further contends, for various reasons, that additional conditions to which he agreed in the plea agreement should be modified or vacated. We affirm.

         ¶ 2. In May 2016, defendant was charged with aggravated assault with a deadly weapon and simple assault arising from an altercation at a mud bog event in Ferrisburgh. The arresting officer's affidavit indicated defendant appeared extremely intoxicated when the officer spoke with him shortly after the incident. The charges were tried to a jury in September 2016, resulting in a conviction on the simple assault count. The jury was unable to reach a verdict on the count alleging aggravated assault. In February 2017, the parties reached a plea agreement wherein defendant agreed to plead nolo contendere to the aggravated assault charge in exchange for concurrent sentences on both the aggravated assault and the simple assault charges. The plea agreement provided that a portion of the sentences was suspended, and defendant was placed on probation for a period of two years.

         ¶ 3. In the plea agreement, defendant reserved the right to challenge the imposition of a condition prohibiting him from purchasing, possessing, or using alcohol should the court elect to impose it. The plea agreement provided for the imposition of other probationary conditions, which defendant agreed were "final" both in the written agreement and orally at sentencing. Defendant also stipulated in the plea agreement that he was not an alcoholic. The court imposed the sentence specified in the plea agreement, including the "no-alcohol" condition, [1] to which defendant continued to object, and the other probationary conditions called for in the plea agreement to which he did not object. Defendant contended the no-alcohol condition could no longer be imposed based upon this Court's recent decision in State v. Albarelli, 2016 VT 119, ¶ 60, Vt., 159 A.3d 627, which relied upon public policy to strike a no-alcohol condition.[2]

         ¶ 4. The court noted at sentencing that there was "abundant reason to believe that alcohol played a significant role in [defendant's] behavior that was far out of bounds on the day in question" and that imposition of the condition would serve rehabilitative purposes. The court further stated:

Frankly, that event alone would be enough to warrant the Court's imposition of-frankly, all five of those conditions. And . . . condition 1, in the absence of evidence that the defendant could not comply with it, I think would be a useful condition in assistance of the counselling that would be occurring. I think it would be-particularly with an event of this nature, leading to a felony conviction, this is an opportunity that the Court would not pass up to require Mr. Urban to re-examine his relationship with alcohol and determine what kind of healthy relationship, if any, he can have going forward. The alcohol conditions . . . amply meet that concern.

         While defendant had a prior record, it was never established the extent to which, if any, alcohol played a role in his prior convictions.[3] Defendant appealed.

         I. Defendant's Challenge to the No-Alcohol Condition

         ¶ 5. We consider first the challenge to the no-alcohol condition. Probation conditions must be reasonably related to the purposes of sentencing and reasonably related to the crime. State v. Moses, 159 Vt. 294, 298, 618 A.2d 478, 481 (1992). "A condition is related to the goals of probation if it is designed, in light of the crime committed, to promote the probationer's rehabilitation and to insure the protection of the public." State v. Campbell, 2015 VT 50, ¶ 9, 199 Vt. 78, 120 A.3d 1148 (quotation omitted). Probationary conditions also must not be overly broad or vague. State v. Freeman, 2013 VT 25, ¶ 17, 193 Vt. 454, 70 A.3d 1008 (quoting State v. Whitchurch, 155 Vt. 134, 137, 577 A.2d 690, 692 (1990)). Where a probationary condition restricts otherwise lawful conduct, the condition must also be "reasonably related to the offender's rehabilitation or necessary to reduce risk to public safety." 28 V.S.A. § 252(b)(18).

         ¶ 6. Defendant raises a public policy argument, echoing the Court's decision in Albarelli, and contends that a condition totally prohibiting him from having or using alcohol is unduly restrictive to his liberty when the offenses for which he was placed on probation were not alcohol offenses. Defendant stipulates that he is not an alcoholic and presented no evidence that he is an "alcohol abuser."[4] To the extent the court believed probationary conditions were necessary to assist in defendant's rehabilitation, he argues a less restrictive alcohol condition should have been imposed.[5] Thus, defendant argues that imposing a no-alcohol condition is unduly harsh ...

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