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State v. Lumumba

Supreme Court of Vermont

April 6, 2018

State of Vermont
v.
Yetha L. Lumumba

          On Appeal from Superior Court, Chittenden Unit, Criminal Division Brian J. Grearson, J.

          Thomas 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, JJ.

          DOOLEY, J.

         ¶ 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 responsibilities.
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 ...

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