Appeal from Superior Court, Chittenden Unit, Criminal
Division Brian J. Grearson, J.
J. Donovan, Jr., Chittenden County State's Attorney, and
Pamela Hall Johnson, Deputy State's Attorney, Burlington,
and David E. Tartter, Deputy State's Attorney,
Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Joshua O'Hara,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Defendant challenges so-called standard
and special sex-offender probation conditions that the trial
court imposed following his conviction for sexual assault.
Defendant argues that this Court should strike a number of
the standard conditions imposed by the trial court in its
written order because the conditions were not orally
pronounced during the sentencing hearing and were not
sufficiently connected to his crime or rehabilitation. He
also argues that the sex-offender condition prohibiting
defendant from purchasing, possessing, or using pornography
or erotica and from going to "adult bookstores, sex
shops, topless bars, etc." is unrelated to his offense
and unconstitutionally vague. We conclude that defendant
failed to properly preserve his objections to the standard
conditions and review them for plain error. Based on the
particular provisions and the State's concessions, we
strike some conditions, remand some conditions, and affirm
the remaining conditions. We strike the challenged special
condition as unsupported by the record.
2. The conviction in this case stems from an incident that
occurred in the summer of 2010. Defendant, who was attending
the University of Vermont (UVM) at that time, met with
complainant, another UVM student, to go to a Burlington
beach. Complainant later reported that defendant had
compelled her to engage in nonconsensual oral sex. In 2012,
defendant was convicted of felony sexual assault and
sentenced to eight years to life in prison. Defendant
appealed. See State v. Lumumba, 2014 VT 85, 197 Vt.
315, 104 A.3d 627. Defendant argued that his sentence
violated the constitutional prohibition against cruel and
unusual punishment because his immigration status interacted
with the to-serve sentence to make him unable to get
sex-offender treatment, which meant that he would not be
eligible for release under the Department of Corrections'
internal procedures. Without reaching the constitutional
question, this Court reversed and remanded for resentencing,
directing the trial court to consider the consequences that
defendant's immigration status had on his sentence.
Id. ¶ 27.
3. On remand, the trial court ordered an updated presentence
investigation report (PSI). Defense counsel raised the issue
of defendant's competency, but following a hearing, the
court determined that defendant was competent. At the new
sentencing hearing in September 8, 2015, the State requested
a sentence of ten years to life, split to serve ten years,
while defendant argued for five years to life, split to serve
five years. The court sentenced defendant to eight years to
life, all suspended except for six years and nine months.
4. At the hearing, the court and counsel also discussed
probation conditions. The presentence investigation report
(PSI) recommended twelve special sex-offender conditions,
including requirements that defendant complete a sex-offender
treatment program, execute a release authorizing
defendant's treatment providers to communicate with his
probation officer, grant his probation officer warrantless
search and seizure privileges, submit to periodic polygraph
examinations, comply with a curfew, live and work where
approved by his probation officer, and get permission before
changing his residence or employment. The conditions also
prohibited him from purchasing, possessing, or consuming
alcohol; required him to complete substance abuse screening
and/or treatment; banned him from purchasing, possessing, or
handling firearms; and required him to participate in
electronic monitoring as required by his probation officer.
One condition prohibited defendant from purchasing,
possessing, or using pornography or erotica and going to
adult bookstores, sex shops, and topless bars. Defendant
objected to all of these conditions on the grounds that they
were either not related to the case, overbroad, vague, or an
unlawful delegation of authority. Consequently, the court and
counsel engaged in a lengthy discussion about each
recommended special condition.
5. At the sentencing hearing, the court approved nine of the
special conditions suggested in the PSI, but amended the
proposed language of several. The court struck the condition
requiring defendant to refrain from drinking alcohol and to
complete a substance-abuse screening and/or treatment. It
also struck conditions that would have imposed a curfew and
prohibited defendant from purchasing or possessing firearms.
The court amended condition 38 to require defendant to
provide his probation officer with ten days' notice
before moving or changing jobs. It imposed the condition
relating to pornography, erotica, and sexual establishments.
In sum, the court individually addressed each of the proposed
"special" probation conditions, accepting some and
rejecting or modifying others.
6. There was not, however, a disclosure of any other
conditions that might be imposed on defendant. The probation
order, which issued after the hearing, included not only the
special conditions discussed on the record and imposed at the
sentencing hearing, but also the following list of nineteen
additional "standard" conditions:
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 so.
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
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 ...