State v. Benjamin

State v. Benjamin (2005-181)

2007 VT 52

[Filed 22-Jun-2007]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2007 VT 52

No. 2005-181

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 3, Orleans Circuit

Mark Benjamin December Term, 2006

Howard E. Van Benthuysen, J.

Christopher C. Moll, Lamoille County Deputy State's Attorney, Hyde Park,
for Plaintiff-Appellee.

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

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. REIBER, C.J. Defendant Mark Benjamin appeals from the
district court's finding that he was in violation of probation (VOP).
Defendant asserts that the VOP complaint should have been dismissed because
he was denied his right to a hearing within a reasonable time. The State
contends, in opposition, that any delay in the hearing was due largely to
defendant's own actions and that no prejudice resulted from the delay. We
affirm.

¶ 2. The pertinent facts are uncontested. Defendant pled guilty on
July 13, 2004, to one count of lewd and lascivious conduct with a minor,
and one count of sexual assault on a minor. (FN1) He was sentenced, on the
first charge, to one to five years, all suspended but sixty days. On the
second, he was sentenced to three to twelve years, all suspended but sixty
days on a pre-approved furlough work crew. The two sentences were
concurrent, and defendant was placed on probation with standard conditions.
On August 20, 2004, defendant's probation officer filed a VOP complaint
alleging that defendant had violated his probation conditions by using
regulated drugs and alcohol. On the same day, defendant was arraigned on
six new charges: one count of sexual assault on a minor under sixteen, 13
V.S.A. § 3252(3); three counts of delivering regulated drugs to minors, 18
V.S.A. § 4237(A); and two counts of furnishing alcohol to a minor, 7 V.S.A.
§ 658. Defendant entered a plea of not guilty, and bail was set at
$50,000. A preliminary probable-cause hearing on the VOP charge was also
held on August 20, and probable cause was found for the VOP. Unable to
make bail on the six new charges, defendant was taken into custody the same
day.

¶ 3. Defendant was assigned counsel on August 24, 2004, and a merits
hearing on the VOP complaint was scheduled for September 20, 2004. The
court also set September 20 as the date for a status conference on the
criminal charges. Defendant's counsel withdrew on August 31, and new
counsel was assigned that day. Defendant then moved, on September 17,
2004, to continue the September 20 hearing. The motion was granted, and
the hearing was set for October 18, 2004. On October 13, 2004, defendant
filed a motion to suppress certain statements he had made to police
officers, with respect to both the VOP and the other charges.

¶ 4. The first hearing on the VOP complaint was held on October
18, 2004. The State called defendant's probation officer to testify, and
the time allotted for the hearing was sufficient for the State to conclude
its direct examination but insufficient for defendant to complete
cross-examination. Also on that day, five new charges were filed arising
from defendant's conduct on August 20. Bail on those charges was set at
$25,000, and defendant, already incarcerated for failure to make bail on
the August 20 charges, did not meet the additional bail. The October 18
hearing was continued to November 22, 2004, to take further evidence.

¶ 5. At the November 22 hearing, which lasted less than an hour,
defendant moved to merge consideration of the motion to suppress with the
VOP hearing. That motion was granted. Defendant then completed the
cross-examination of the probation officer begun at the October 18 hearing,
after which the State conducted direct examination of one of the police
officers who executed the search warrant on defendant's home. The time
allotted for the hearing did not suffice for the State to complete direct
examination. At the close of the hearing, counsel for defendant asked the
court if it would reschedule the upcoming hearing on the suppression motion
to coincide with the next hearing on the VOP. The court agreed, and a
hearing was scheduled for November 29.

¶ 6. At the November 29 hearing, which lasted about forty minutes,
defendant asserted that the scheduling had created problems with
out-of-state witnesses - in particular defendant's mother, who feared
losing her job if she had to miss work for other hearings - and was
diminishing his ability to cross-examine witnesses effectively. Citing
these difficulties, defendant moved to dismiss the VOP complaint. The
motion was denied. After the denial, the State concluded direct
examination of the police officer, and defendant began to cross-examine
her. During both the State's and defendant's examination of the officer,
counsel for both parties discussed with the court the difficulties inherent
in examining the officer without a resolution of the motion to suppress.
At the close of the November 29 hearing, the court noted that, when it came
time to focus more closely on the statements subject to the motion to
suppress, the officer would be called upon to testify again.

¶ 7. Additional hearings were held, including a half-day on March 23
and a shorter hearing on March 29, 2005. On March 23, four witnesses
testified. The first was a minor who was present when defendant furnished
drugs to other minors and who assisted police in recording a telephone call
in which she discussed drugs with defendant. The defense had a full
opportunity to cross-examine her and did so. The second witness was a
friend of defendant. He testified and was subject to cross-examination,
redirect, and recross. Third to testify on March 23 was the police officer
who had previously testified on November 29. Finally, the court took
testimony from another officer who was present at the time the warrant was
executed. That officer was subject to direct and cross-examination. Four
more witnesses, including defendant, testified at the shorter March 29
hearing.

¶ 8. The district court then issued an order on April 21, 2005,
finding that defendant had violated his probation conditions. Probation
was revoked on June 6, 2005, and the underlying sentences on the
sexual-assault and lewd-and-lascivious-conduct charges were imposed, with
credit for time served, after a sentencing hearing. Defendant appealed.

¶ 9. We first review the rules and statutes governing VOP hearings
in Vermont. Rule 32.1 of the Vermont Rules of Criminal Procedure and §§
301-305 of Title 28 govern the modification and revocation of probation.
Under Rule 32.1, two hearings must be held. First, a probationer is
entitled to a "prompt" preliminary hearing to determine whether there is
probable cause to detain him or her pending a merits hearing. V.R.Cr.P.
32.1(a)(1). Second, the merits hearing, referred to in the statute as the
"revocation hearing," must be held "within a reasonable time." V.R.Cr.P.
32.1(a)(2). The Vermont rules mirror the Federal Rules of Criminal
Procedure in both respects. See F.R.Cr.P. 32.1(b)(1), (2) (preliminary
hearing must be held "promptly"; revocation hearing must be held within "a
reasonable time"). Both the Vermont and federal rules dictate certain
procedural requirements for the preliminary and final hearings, but those
requirements are not implicated in the instant case; defendant contests
only the timing of his revocation hearing. The United States Supreme Court
has held that the timing and nature of both hearings is mandated by the
Sixth Amendment to the United States Constitution. (FN2) Vermont's rule
was promulgated to comply with the constitutional mandates announced in
those cases. Reporter's Notes, V.R.Cr.P. 32.1.

¶ 10. First, in Morrissey v. Brewer, 408 U.S. 471, 485 (1972), a
parole-revocation case, the Court ruled that a preliminary, informal
hearing was required "as promptly as convenient" after arrest while
information is fresh and sources are available to determine whether there
is probable cause for a violation of parole. The Court further ruled that
the Constitution requires another more formal hearing prior to parole
revocation; that hearing, the Court noted, "must lead to a final evaluation
of any contested relevant facts and consideration of whether the facts as
determined warrant revocation." Id. at 488. That final hearing "must be
tendered within a reasonable time after the parolee is taken into custody."
Id. While the Court declined to announce a bright-line rule for
reasonableness, it noted that two months, the lapse at issue in Morrissey,
"would not appear to be unreasonable." Id.

¶ 11. The following year, in Gagnon v. Scarpelli, the Court applied
Morrissey's logic to a revocation of probation, and held that "a
probationer, like a parolee, is entitled to a preliminary and a final
revocation hearing, under the conditions specified in Morrissey." Gagnon,
411 U.S. at 782. The Court noted that, although there are "minor
differences" between probation and parole, the revocation of the former is
"constitutionally indistinguishable" from revocation of the latter. Id. at
782 n.3. This logic also holds true under the applicable Vermont statutes.

¶ 12. In Vermont, both probation and parole are statutorily defined.
Parole is "the release of an inmate to the community by the parole board
before the end of the inmate's sentence subject to conditions imposed by
the board and subject to the supervision and control of the commissioner."
28 V.S.A. § 402(1). Probation is "a procedure under which a respondent,
found guilty of a crime upon verdict or plea, is released by the court,
without confinement, subject to conditions imposed by the court and subject
to the supervision of the commissioner." 28 V.S.A. § 201. Although there
are differences between probation and parole in Vermont, State v. Bensh,
168 Vt. 607, 607-08, 719 A.2d 1155, 1156 (1998) (mem.), as there are in the
federal system, we agree with the Gagnon Court that the differences do not
require any distinction between the two for purposes of our due-process
analysis in this case.

¶ 13. Morrissey and Gagnon, taken together, mandate that a
preliminary probation-revocation hearing be held promptly, and that a final
revocation hearing be held within a reasonable time. We have not had cause
to confront squarely the latter requirement, although many other courts
have. See, e.g., United States v. Throneburg, 87 F.3d 851 (6th Cir. 1996);
United States v. Morales, 45 F.3d 693 (2d Cir. 1995); United States v.
Rasmussen, 881 F.2d 395 (7th Cir. 1989); United States v. Blunt, 680 F.2d
1216 (8th Cir. 1982); State v. Jameson, 541 P.2d 912 (Ariz. 1975); Dority
v. State, 951 S.W.2d 559 (Ark. 1997); State v. Inscore, 634 S.E.2d 389
(W.Va. 2006).

¶ 14. Like many of the jurisdictions cited above, we assess the
reasonableness of a delay in completing the final revocation hearing under
the balancing test announced in Barker v. Wingo, 407 U.S. at 530, which we
have previously applied in other contexts. See State v. Turgeon, 165 Vt.
28, 35, 676 A.2d 339, 343 (1996) (failure to bring a defendant to trial
within limits set by Administrative Order No. 5, § 2 is not per se
deprivation of due-process rights; delay evaluated using Barker factors);
State v. Percy, 158 Vt. 410, 420, 612 A.2d 1119, 1126 (1992) (assessing,
under Barker, timeliness of criminal retrial after remand); State v. Unwin,
139 Vt. 186, 195, 424 A.2d 251, 257 (1980) (adopting Barker to assess
defendant's claim that several months' delay in criminal trial violated
Sixth Amendment). The Second Circuit has adopted Barker to assess delays
in preliminary probation-revocation hearings arising under the federal
probation-hearing statute in effect at the time. State v. Companion, 545
F.2d 308, 311 (2d Cir. 1976). (FN3) We have not explicitly adopted the
Barker factors in the probation-revocation context, and we take this
opportunity to do so. (FN4)

¶ 15. The Barker Court identified four factors to be considered in
evaluating whether a defendant has been deprived of the right to a speedy
trial: "[l]ength of delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant." 407 U.S. at 530.
(FN5) Weighing the facts in the instant case in light of these factors,
we conclude that defendant's right to a revocation hearing within a
reasonable time was not violated.

¶ 16. We note, at the outset, that the Fourteenth Amendment protects
citizens against deprivation of liberty without due process of law. The
conditional liberty enjoyed by a non-incarcerated parolee or probationer
falls within the due-process protection of the amendment. G.T. v. Stone,
159 Vt. 607, 610, 622 A.2d 491, 492 (1992). Here, however, it is at least
arguable that defendant - already incarcerated for failure to make bail on
criminal charges filed the same day as the VOP complaint - was not deprived
of his liberty by the delay in holding the probation-revocation hearing.
His incarceration does not, however, eliminate defendant's due-process
interest in a timely final hearing. Even an incarcerated probationer has a
due-process interest in a reasonably timely final revocation hearing.
Delay in that hearing can prejudice an incarcerated probationer in much the
same way as it would a non-incarcerated one, particularly diminishing the
ability to prepare an effective defense, which is a core underpinning of
both the speedy-trial and due-process guarantees. Accordingly, the fact of
defendant's incarceration is to be weighed during the Barker balancing.

¶ 17. We turn to that balancing. The Barker Court characterized the
first factor, length of delay, as "to some extent a triggering mechanism,"
noting that "[u]ntil there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors."
Barker, 407 U.S. at 530. There is no length of delay, however, that is per
se prejudicial. (FN6) Here, the VOP complaint was filed and probable cause
was found at a preliminary hearing on August 20, 2004. The revocation
hearings began on October 18, 2004. Those hearings continued until March
29, 2005, and a written decision was not issued until April of 2005.
Although Barker and the other cited cases arose from delays in the
commencement of hearings while the instant case involves a delay in the
completion of hearings that were timely commenced, the due-process concerns
raised by the former are raised also by the latter. A defendant whose
revocation hearing begins promptly but is then continued for an
unreasonable period may suffer the same prejudice as one whose hearing is
not commenced for an unreasonably long time. The delay in the instant case
between the VOP complaint's filing and its disposition - eight months -
although not per se prejudicial, is sufficient to trigger an inquiry into
the other Barker factors.

¶ 18. The second Barker factor, the reason for the delay, does not
strongly support defendant's claim. The first month of the delay was due
to defendant's motion to continue, and at least some of the subsequent
months' delay is attributable to defendant's request to consider his motion
to suppress along with the VOP complaint. Defendant makes no claim that
the State was at fault in causing the delay, but asserts that the only
reason for the delay was a lack of court resources. The Barker Court
considered several possible reasons for delay, concluding as follows:

[D]ifferent weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more
neutral reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered since
the ultimate responsibility for such circumstances must rest with
the government rather than with the defendant. Finally, a valid
reason, such as a missing witness, should serve to justify
appropriate delay.

Barker, 407 U.S. at 531. Here, the completion of the hearings was delayed
in part because of a lack of court resources. Defendant would have
remained incarcerated for failure to make bail regardless of the speed with
which his revocation hearing was held, however, and the court's delay was
also due to its effort to accommodate defendant's request for longer blocks
of hearing time at which he would have time to cross-examine the State's
witnesses on the same day as their direct examination. Accordingly, we do
not find that the reason for the delay militates in favor of finding a
constitutional violation in this case.

¶ 19. As to the third Barker factor, the State concedes that
defendant asserted his right to have the VOP resolved in a timely manner,
and so we move on to consider the fourth factor, prejudice to the
defendant. Prejudice to the defendant is the most important factor in
considering timely-hearing claims. Page, 171 Vt. at 115-16, 757 A.2d at
1042-43; see also, e.g., Mims v. LeBlanc, 176 F.3d 280, 282 (5th Cir.
1999). The Barker Court identified three particular interests in light of
which prejudice to defendants should be assessed: (1) preventing
"oppressive pretrial incarceration," (2) minimizing "anxiety and concern of
the accused," and (3) limiting "the possibility that the defense will be
impaired." 407 U.S. at 532. Because defendant was incarcerated for
failure to make bail on other charges during the entire course of the
revocation hearings, the first interest is not implicated here. The second
interest is implicated only minimally, for the same reason. A defendant
incarcerated for a reason other than the delay in the hearings cannot
properly attribute his anxiety at being incarcerated - or the prejudice it
implies - to the hearing delays. The third interest, however, applies with
equal force to a probationer incarcerated on other charges as to one
incarcerated only due to the VOP. Defendant makes two general contentions
in this regard. First, he claims that his ability to cross-examine was
undermined by the fractured nature of the proceedings. Second, he argues
that an out-of-state witness came to Vermont twice to appear at hearings,
but was unable to appear on those days and unable to return again due to
scheduling issues with her job, and that another witness was unable to
appear due to the protracted nature of the hearings.

¶ 20. Like the Barker Court, we take the prospect of prejudice
resulting from delay quite seriously, particularly where a defendant may
have been rendered unable to adequately prepare a defense due to
unnecessary delays in holding a final hearing. See id. ("[T]he inability
of a defendant adequately to prepare his case skews the fairness of the
entire system."). In this case, however, defendant's claims of prejudice
are too speculative - particularly in light of the fact that he was already
incarcerated on other charges - to constitute a due-process violation. If
the divided hearings might, to some degree, have reduced defendant's
ability to examine witnesses effectively, defendant has presented no
concrete examples of actual prejudice, and none are apparent from the
record. Further, at the November 29, 2004 hearing at which counsel for
defendant raised this issue, counsel herself characterizes the State's
early witnesses as "pretty much pro forma," implying that no prejudice to
defendant had resulted from the inability to cross-examine them immediately
after direct examination. Counsel then suggested that the prejudice she
feared would begin to accrue only when other, more substantive witnesses
were called later, if subsequent hearings were as short as the first
hearings and counsel was forced to cross-examine witnesses weeks or months
after their direct examination.

¶ 21. Following defense counsel's objection to the "fractured"
nature of the proceedings, the trial court agreed to attempt to find a
larger block of time on a single day for subsequent hearings, but noted
that it might be as much as two months before such a large opening in the
court's calendar would be available. The next hearing was held on January
12, 2005. At that hearing, two witnesses were subject to both direct and
cross examination. Although the record does not reveal the exact length of
the January hearing, the subsequent hearing on March 23, 2005, was a
half-day long, apparently in response to defense counsel's oral request for
a longer hearing. The delay between November and March, though greater
than the two-month estimate the court gave in November, is at least
partially attributable to defendant's request for longer hearings, which
the court warned might cause delay. The fractured nature of the hearings
does not tip the balance in favor of finding a due-process problem.

¶ 22. Defendant also claims that at least one witness was unable to
appear as a result of the delay in holding the hearings. First, defendant
notes that a rebuttal witness did not appear at the March 29 hearing, but
the defense appears to have contacted that witness for the first time on
the evening before the March 29 hearing, and he was never served with a
subpoena to appear. While the failure of a witness to appear may in some
cases be wholly attributable to delay - as, for example, where the witness
dies during the delay, United States v. Williams, 558 F.2d 224, 227-28 (5th
Cir. 1977) - this witness's failure to appear was not due to delay at all.
Rather, it seems that he did not appear because he was given relatively
short notice by the defense, and was not subpoenaed.

¶ 23. Second, the defense argues that defendant's mother was unable
to testify at the March 29 hearing, though she had attended all of the
previous hearings, because she feared losing her job if she missed work
again. We note first, as the trial judge did, that the proffered testimony
was, at best, peripherally relevant. Defense counsel stated that
defendant's mother would corroborate the testimony of another witness about
the whereabouts of certain prescription medication. Even had defendant's
mother been available to testify, however, according to the proffer she
would only have testified as to the location of some medication, and would
not have testified that there were no pills or other drugs at defendant's
house. Given the minimal relevance and probative value of the proffered
testimony, defendant's mother's inability to testify - which is arguably
not properly attributed to the delay in any event - did not violate
defendant's right to a timely hearing.

¶ 24. Our weighing of the Barker factors leads us to conclude that
defendant's due-process rights were not violated by the prolonged final
revocation hearing in this case. We therefore affirm the district court's
order denying defendant's motion to dismiss the VOP complaint and finding
that defendant had violated his probation. Because we affirm the finding
of a violation of probation, and because defendant claims no error in the
district court's subsequent revocation of probation and imposition of
defendant's underlying sentence, we also affirm both of those decisions.

Affirmed.

FOR THE COURT:

_______________________________________
Chief Justice

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Footnotes

FN1. Defendant was charged under the former 13 V.S.A. § 2602 (lewd and
lascivious conduct with child) and § 3252(a)(3) (engaging in sexual act
with person under age sixteen). Both statutes have since been amended.
See 2005, No. 192 (Adj. Sess.), § 8 (amending § 2602), § 10 (amending §
3252). All references in this opinion are to the pre-amendment statutes.

FN2. The Sixth Amendment provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial." U.S. Const.
amend. VI. The Sixth Amendment right to a speedy trial is enforceable
against the states by operation of the Fourteenth Amendment. Smith v.
Hooey, 393 U.S. 374, 374-75 (1969). Although the right to a speedy trial
is not directly applicable to probation or parole revocation proceedings,
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), the federal courts that have
considered the question have, almost without exception, used the
Sixth-Amendment-derived logic of Barker v. Wingo, 407 U.S. 514 (1972), and
its progeny to analyze the closely analogous rights embraced by the Fifth
and Fourteenth Amendments' due-process protections. See, e.g., Bryant v.
Grinner, 563 F.2d 871, 872 (7th Cir. 1977) (holding, in challenge to
timeliness of parole-revocation hearing, that "the prisoner's right to
release is to be determined by the standards prescribed in Barker v.
Wingo").

FN3. Defendant relies on Companion for the proposition that the delay before
a final hearing was held in this case was per se unreasonable because it
was far in excess of the eighty-seven-day delay in Companion. Companion,
however, arose from an eighty-seven-day delay in holding a preliminary
hearing, not a final hearing as in the instant case. 545 F.2d at 309. The
defendant in Companion was arrested near Tucson, Arizona, spent two weeks
in an Arizona jail, and then underwent a "circuitous" monthlong journey
through Texas, Oklahoma, Kansas, Illinois, Indiana, and Pennsylvania before
finally spending twenty-six days in a New York jail before a preliminary
hearing in Vermont. Id. The distinction between preliminary and final
hearings is centrally important in timeliness claims, and Companion
therefore cannot bear the weight defendant places on it.

FN4. We did, in State v. Page, 171 Vt. 110, 757 A.2d 1038 (2000), cite
Barker in evaluating the timeliness of a probation-revocation decision, but
we did not expressly adopt it, instead rejecting the defendant's
due-process claim because no colorable claim of prejudice was made at all.
See id. at 115, 757 A.2d at 1042 ("We doubt that the choice of a relevant
standard will affect the outcome in this case."). Page involved a one-year
delay between the conclusion of the revocation hearing and the issuance of
the decision thereon. Id.

FN5. To these factors factors some courts have added a fifth in the context
of already-incarcerated probationers: the reason for the incarceration.
See, e.g., United States v. Scott, 850 F.2d 316, 320 (7th Cir. 1988)
(citing Moody v. Daggett, 429 U.S. 78, 86-87 (1976)). We do not follow the
Scott court in doing so.

FN6. In Bryant, 563 F.2d at 871-72, for example, the Seventh Circuit
abandoned its former presumption of prejudice in delays greater than three
months and mandated a case-by-case weighing of the Barker factors to
determine whether a parolee was denied the due-process right to a timely
final hearing. Although Bryant is plainly distinguishable on its facts
from the case at bar, we agree with the Bryant court that a
per-se-prejudice rule is unnecessary.