Appeal from Superior Court, Bennington Unit, Criminal
Division William D. Cohen, J.
Alexander Burke, Deputy State's Attorney, Bennington, for
Allison N. Fulcher of Martin & Associates, Barre, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
REIBER, C. J.
1. Defendant appeals the trial court's determination that
he violated the terms of his probation by possessing a
firearm in violation of 13 V.S.A. § 4017. We affirm.
2. Defendant pled guilty to domestic assault in November
2015. The trial court deferred his sentence for one year and
placed him on probation. Defendant's deferred sentence
and probation order stated, "You must not engage in
criminal behavior[.]" After defendant's release on
probation, he asked his probation officer whether he could
possess a firearm. The probation officer informed him that he
was not an attorney, but he thought defendant could. This was
incorrect. Under Vermont law, it is illegal for anyone
convicted of domestic assault to possess a firearm. See 13
V.S.A. § 4017(a), (d)(3) (prohibiting person convicted
of violent crime from possessing firearm); id.
§ 5301(7)(C) (listing domestic assault as violent
3. During the fall of 2016, defendant encountered police
officers three times. Each time, he voluntarily informed the
officers that he possessed a gun. In November 2016, the State
filed an affidavit alleging defendant had violated his
probation by possessing a firearm on three occasions. After a
hearing in December 2016, the trial court determined that
Condition 31 of the probation certificate, which prohibited
"engag[ing] in criminal behavior, " provided
"fair notice" that firearm possession would violate
13 V.S.A. § 4017, a strict liability offense; that
defendant was in possession of a firearm on three occasions;
and that defendant, accordingly, violated the terms of his
probation. The court further held that the burden generally
falls on defense counsel, not the probation officer, to
inform defendant of potential "collateral consequences
of a [criminal] conviction." Defendant timely appealed.
4. Defendant makes two arguments. First, he argues that the
probation officer's statements "eviscerate[d] the
clarity" of the probation condition such that he cannot
be held to have violated the terms of his probation. Second,
defendant argues that even if he did violate his probation,
he did not do so willfully. Defendant does not dispute the
trial court's finding that he possessed a firearm in
violation of 13 V.S.A. § 4017.
5. A violation-of-probation decision "presents a mixed
question of law and fact." State v. Sanville,
2011 VT 34, ¶ 7, 189 Vt. 626, 22 A.3d 450 (mem.). On
review, "[w]e will not disturb the court's findings
if they are fairly and reasonably supported by credible
evidence, and we will uphold the court's legal
conclusions if reasonably supported by the findings."
State v. Provost, 2014 VT 86A, ¶ 12, 199 Vt.
568, 133 A.3d 826 (quotation omitted). Defendant's first
argument disputes the trial court's legal conclusion by
raising a question of law; we review that question of law de
novo. State v. Bryan, 2016 VT 16, ¶ 12, 201 Vt.
298, 142 A.3d 204 (reviewing de novo legal question
underlying court's conclusion in probation-revocation
decision). Defendant's second argument raises a question
of fact, which we will uphold if "fairly and reasonably
supported by credible evidence." State v.
Decoteau, 2007 VT 94, ¶ 8, 182 Vt. 433, 940 A.2d
661; State v. Anderson, 2016 VT 40, ¶ 13, 202
Vt. 1, 146 A.3d 876 ("Whether a defendant's
probation violation was willful is a question of fact, and we
will not disturb a trial court's determination that the
defendant acted willfully unless that determination was
6. In order for the court to find a violation of probation,
the State must show, by a preponderance of the evidence, that
"there has been a violation of a probation condition
whose requirements were known to the
probationer." State v. Coyle, 2005 VT 58,
¶ 8, 178 Vt. 580, 878 A.2d 1062 (mem.) (emphasis added).
"[D]ue process requires that a convicted offender be
given fair notice as to what acts may constitute a violation
of his probation, thereby subjecting him to loss of
liberty." State v. Peck, 149 Vt. 617, 619, 547
A.2d 1329, 1331 (1988); see also State v. Bubar, 146
Vt. 398, 405, 505 A.2d 1197, 1201 (1985) ("[T]he
defendant is entitled to know what conduct is forbidden
before the initiation of a probation revocation
proceeding."). Therefore, a court can find a probationer
in violation of probationary terms only when those terms are
"express" or "so clearly implied that a
probationer, in fairness, can be said to have notice of
it." State v. Austin, 165 Vt. 389, 389, 685
A.2d 1076, 1082 (1996) (quotation and alterations in original
7. A probationer has fair notice of those conditions
expressly stated in the probation certificate. See 28 V.S.A.
§ 252(c) ("When an offender is placed on probation,
he or she shall be given a certificate explicitly setting
forth the conditions upon which he or she is being
released."); State v. Kane, 2017 VT 36, ¶
20, __ Vt.___, 169 A.3d 762 ("To satisfy this due
process requirement [of fair notice], offenders must be
'given a certificate explicitly setting forth the
conditions upon which he or she is being released.'
" (quoting 28 V.S.A. § 252(c))). The instructions
and directions of the probation officer may also provide fair
notice. See State v. Blaise, 2012 VT 2, ¶ 15,
191 Vt. 564, 38 A.3d 1167 (mem.) ("[A] defendant might
be given fair notice of what may constitute a probation
violation by the instructions and directions given to
defendant by his or her probation officer . . . ."
8. Defendant's probation certificate provided defendant
fair notice that gun possession constituted a violation of
his probationary terms, and he does not argue otherwise. The
certificate expressly prohibited defendant from
"engag[ing] in criminal behavior, " and it is
criminal behavior for someone convicted of domestic assault
to possess a gun. 13 V.S.A. § 4017. Defendant agrees
that the condition was clear: "Condition 31, 'You
must not engage in criminal behavior, ' is not vague on
its face . . . ." Cf. Sanville, 2011 VT 34,
¶ 1 (finding defendant lacked fair notice because
probation certificate was insufficiently clear regarding what
constituted "threatening behavior"). Defendant also
concedes that his gun possession was criminal behavior
proscribed by the plain terms of the probation certificate.
And he does not dispute the longstanding legal principle that
"ignorance of the law is not an excuse, " meaning,
the law presumes all individuals know the law and are
responsible for non-compliance. See State v. Fanger,
164 Vt. 48, 53, 665 A.2d 36, 38 (1995) (affirming legal
principle that ignorance of law is not excuse); State v.
Woods, 107 Vt. 354, 356-57, 179 A. 1, 2 (1935) (stating
that "everyone is conclusively presumed to know the
9. What defendant disputes is how his probation officer
affected that notice. Defendant argues that the officer's
statements "eviscerate[d] the clarity in the
condition" such that defendant no longer had fair notice
of what was required of him. We have established that the
directions and instructions of probation officers may serve
as fair notice to the probationer. See State v.
Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75 (2001) (mem.)
(stating that "a defendant may be put on notice as to
what may constitute a probation violation merely by the
instructions and directions of a probation officer");
State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246,
1252 (1990) ("The instructions and directions given to a
defendant by a probation officer or the court can also serve
to provide fair notice.").
10. We have not yet considered whether a probation
officer's statements may remove fair notice already
provided through the certificate. We decline to establish
whether, as a matter of law, some circumstances exist in
which a probation officer's statements may vitiate fair
notice because, in this case, we determine that the probation
officer's statements were not sufficiently clear and
unambiguous as to remove the express notice provided by the
probation certificate. Instead, the probation officer's
statements were equivocal. At the violation-of-probation
hearing, defendant's probation officer testified:
[Answer]: He had asked me if he could ever use a firearm, and
I looked over his charges that he has in our system and asked
him if he had any other felonies or anything anywhere else.
He said no, and I said, I don't see why you can't. I
wasn't aware of the domestic assault.
[Question]: Did you specifically say he could have firearms?
[Answer]: No. I said I don't believe he can't. My
[Answer]: -is that he ...