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State v. Stuart

Supreme Court of Vermont

August 10, 2018

State of Vermont
Amanda L. Stuart

          On Appeal from Superior Court, Franklin Unit, Criminal Division, Martin A. Maley, J.

          James A. Hughes, Franklin County State's Attorney, St. Albans, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          ROBINSON, J.

         ¶ 1. Defendant Amanda Stuart appeals her probation revocation arising from two probation violations. She argues, among other things, that the State presented insufficient admissible evidence to support the violations upon which the revocation was based. We agree and reverse the trial court's revocation of her probation.[1]

         ¶ 2. In May 2016, defendant pled guilty to negligent operation of a vehicle and reckless endangerment. The plea agreement called for concurrent one-to-twelve-month sentences, suspended with probation, to run consecutively to a sentence defendant was already serving for a past infraction. This left defendant on a "dual status"-on furlough in connection with a previous sentence and on probation for her new charges. Defendant's probation conditions in connection with the May 2016 conviction included conditions requiring that she not buy, have, or use any regulated drugs unless prescribed by a doctor, complete the CRASH program, complete substance abuse counseling, and actively participate in and complete the reparative probation program. Contrary to the parties' expectations at the time of the plea, defendant was not released after her May 2016 plea, but, rather, remained incarcerated until November 2016 because she could not meet a condition of her previous sentence that she secure housing.

         ¶ 3. On April 17, 2017, defendant was reincarcerated for violating the furlough conditions in connection with her prior sentence after testing positive for benzodiazepines. In August 2017, defendant's probation officer filed a probation violation complaint in this case alleging that defendant (1) violated the regulated-drugs condition by testing positive for benzodiazepines on a urinalysis test, (2) "ha[d] not yet completed the CRASH program, "[2] (3)"ha[d] not actively participated in or completed the Reparative Probation Program," and (4)was discharged from the Tapestry residential treatment facility in violation of the substance abuse condition.

         ¶ 4. At the October 2017 hearing on the probation violation complaint, the State relied exclusively on the testimony of defendant's probation officer. With respect to the alleged probation violation concerning regulated drugs, the probation officer testified that defendant had tested positive for benzodiazepines. At the beginning of the hearing, defendant put the court on notice that she would be calling a medical provider from the University of Vermont Medical Center to testify about prescribing defendant lorazepam for anxiety the day of the test that underlay the probation violation complaint. In her testimony, the probation officer addressed defendant's claim that she was prescribed the medication, asserting that testing showed multiple different benzodiazepine drugs in defendant's system. When defendant objected to the hearsay testimony, the court said "let's move onto the other allegations . . . the [c]ourt may not need to rely upon that." When defendant objected to similar hearsay testimony on redirect of the probation officer, the court said that it was "not going to make a finding on that." The court informed defendant that she need not call the medical provider she had planned to call.

         ¶ 5. Concerning the alleged violation relating to the CRASH program, the probation officer testified that defendant had not enrolled in the CRASH program since the condition requiring that she complete the program was imposed. The officer was not sure what was happening for defendant between her May 2016 conviction and the time that the probation officer assumed responsibility for the case in December 2016, but acknowledged that it appeared that defendant had not spent much time in the community during that period. The probation officer also acknowledged that defendant was reincarcerated or in an inpatient program in Brattleboro beginning in April 2017. In particular, the officer testified that defendant was terminated from living at Northern Lights because she broke the facility's rules[3] and was briefly reincarcerated (apparently pursuant to her furlough in connection with her previous sentence) before she went to the Tapestry program-another inpatient program-in Brattleboro.

         ¶ 6. With respect to the reparative board condition, the probation officer testified that she saw no evidence in the file that defendant had participated in the reparative board program, but also acknowledged that she had not arranged for defendant to attend the program, did not see anything in the file noting that defendant had been referred to the program, and did not remember talking to defendant about participating in the program.

         ¶ 7. Finally, the probation officer testified about defendant's requirement to complete substance abuse counseling as a probation condition. The probation officer testified that once she was released from jail in November 2016, defendant enrolled in the Maple Leaf residential treatment program. After successfully completing Maple Leaf, defendant moved into Northern Lights, a transitional-living facility for women that provided sober, supportive housing with regularly administered urinalyses. While at Northern Lights, defendant participated in and successfully completed "the Bridge" outpatient substance abuse program. During this time, defendant volunteered, held a job, and consistently passed her urinalysis screenings. After defendant was discharged from Northern Lights and briefly reincarcerated, she was referred to Tapestry, an inpatient program in Brattleboro. The probation officer testified that defendant "did not complete that program." When defendant objected to the testimony on the same hearsay grounds as her prior objections, the trial court asked the probation officer how she knew that defendant did not complete the program. The probation officer said, "I was advised by Tapestry that she was discharged." Defendant again objected, stating that the testimony was unreliable hearsay that the court should not consider. The court did not rule on the objection, but asked defense counsel, "Anything else for this witness?"

         ¶ 8. At the conclusion of the hearing, the trial court ruled from the bench that "[d]uring the period that she was on probation [defendant] failed to complete the CRASH program . . . to the satisfact[ion] of the probation officer" and found that defendant had violated her probation condition. The court also found that defendant did not complete her substance abuse counseling because she was discharged from the Tapestry program and also because she did not complete the "Northern Lights program." After finding that defendant violated two probation conditions, the court revoked defendant's probation and imposed the underlying sentence of one to twelve months to serve, consecutive to the prior sentence she was still at that time serving.[4]

         ¶ 9. On appeal, defendant challenges the trial court's finding that she violated the substance abuse treatment requirement on three grounds: (1) the condition that she "complete substance abuse counseling" did not provide fair notice that her failure to complete the Tapestry program, after having successfully completed two substance abuse treatment programs, would constitute a violation; (2) the trial court admitted hearsay evidence without conducting the required analysis; and (3) the evidence was insufficient to support a violation for failing to complete substance abuse counseling. She argues that the trial court erred in concluding that she had violated the requirement that she complete the CRASH program when she still had many months left in her probation term to ...

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