State v. Darryl M. Galloway

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2020 VT 29

No. 2019-110

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division

Darryl M. Galloway January Term, 2020

David R. Fenster, J.

Sarah George, Chittenden County State’s Attorney, Pamela Hall Johnson and
Andrew M. Gilbertson, Deputy State’s Attorneys, and William Conlon, Law Clerk
(On the Brief), Burlington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua S. O’Hara, Appellate Defender, Montpelier,
for Defendant-Appellant.

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

¶ 1. COHEN, J. Defendant Darryl Galloway appeals the trial court’s conclusion that

he violated a condition of probation when he failed to complete a sex-offender treatment program

while incarcerated. He argues that the Department of Corrections (DOC) impermissibly modified

the condition in requiring him to complete the in-house program. We agree and reverse.

¶ 2. In January 2009, defendant pled guilty to four counts of lewd and lascivious

conduct contrary to 13 V.S.A. § 2601. The charges stemmed from incidents in which defendant
exposed his penis to clothing store clerks in 2006. The trial court sentenced defendant to four

consecutive terms of one to five years’ imprisonment, suspended with probation, but with one year

to serve in each count. The result was an aggregate sentence of four to twenty years, suspended,

except for four years to serve. At the change-of-plea hearing, the court imposed several conditions

of probation and placed defendant on probation. Condition 31 provides: “You will successfully

enroll, participate in, and complete a program for sex offenders approved by DOC and assume the

costs of your treatment.” The court read condition 31 to defendant and he later signed the probation

order.

¶ 3. In March 2010, DOC filed a violation-of-probation (VOP) complaint against

defendant for violating condition 31. DOC alleged that while incarcerated, defendant was

interviewed to determine eligibility for admission to the Vermont Treatment Program for Sexual

Abusers (VTPSA); that defendant began the program in April 2009; and that following disciplinary

infractions against program staff and suspension from the program, defendant refused to complete

the program. Defendant’s probation officer also declared that he asked defendant if he “understood

that not engaging in the in-house treatment program as recommended by the VTPSA team placed

[defendant] in violation of his probation order,” and that defendant answered affirmatively.

¶ 4. A VOP hearing was held in May 2010. The court described condition 31 as

follows: “that he participate in the in-house sex-offender treatment program and it’s alleged that

he did not participate satisfactorily.” The State proposed a deal whereby defendant would admit

to the violation and only two of the four suspended sentences would be revoked, leaving him with

two to ten years to serve on two counts and two to ten years suspended with probation on the other

two counts. The court described the State’s proposal to defendant and explained that continued

2
failure to complete the program could result in probation revocation on the other two counts,

causing him to serve the entire twenty-year sentence. Defendant agreed and admitted to violating

condition 31. The court revoked probation on counts one and two and continued probation under

the original conditions in counts three and four.

¶ 5. In January 2019, DOC released defendant after he served the ten-year sentence on

counts one and two. DOC put him on a bus bound for Seattle before realizing he was still on

probation on counts three and four. DOC then retrieved defendant, placed him back in custody,

and filed a second VOP complaint for violating condition 31 on counts three and four. DOC

alleged that defendant refused to participate in VTPSA during his ten years of incarceration.

¶ 6. In March 2019, the trial court held another VOP hearing. Noting a lack of evidence

to prove that defendant was waiting to complete sex-offender treatment in the community, and his

willingness to leave for Seattle without completing the treatment, the court found that defendant

did not intend to complete sex-offender treatment. The court then found that defendant had been

on probation since his guilty plea in 2009 and that given his ten-year failure to complete the

treatment, he did not complete the programming within a reasonable amount of time. Relying on

the 2010 VOP hearing record, the court found that given defendant’s VOP admission for failing

to complete VTPSA in the facility, and his acknowledgement of DOC’s warning that not engaging

in the in-house program placed him in violation of probation, he was on notice that he needed to

complete the program in the facility. The court thus found defendant in violation of probation,

revoked probation on counts three and four, and imposed the underlying two-to-ten-year sentence

on those counts. This appeal followed.

3
 ¶ 7. Defendant argues that he was not on notice that he had to complete the treatment

program while incarcerated, among other reasons, because the plain language of the condition does

not state that it must be completed while incarcerated. He maintains that DOC’s requirement that

he complete the in-house program amounts to a modification of the condition, a power vested only

in the courts. Defendant also contends that the 2019 VOP court filled an evidentiary gap in the

State’s case by relying on the record of the 2010 proceedings and thus deprived him of due process.

He asks us to reverse the 2019 VOP finding and order his release.

¶ 8. The State argues that defendant obtained fair notice that failure to complete the in-

house VTPSA constituted a violation of probation from his probation officer, other DOC

personnel, the 2010 VOP court, and his 2010 VOP admission. It maintains that defendant did not

raise his modification argument before the trial court and that he fails to prove plain error on that

issue. The State also argues that DOC determined that the appropriate program for defendant was

the VTPSA high-intensity prison program, such that VTPSA was the program “approved” by

DOC.

¶ 9. In a VOP hearing, the State has the burden to prove “by a preponderance of the

evidence that the probationer has violated an express or clearly implied probation condition.” State

v. Stuart, 2018 VT 81, ¶ 10, 208 Vt. 127, 196 A.3d 306. If the State shoulders this initial burden,

“the burden shifts to the probationer to prove the violation was not in his or her control, but rather

resulted from extrinsic factors through no fault of the probationer.” Id.

¶ 10. Our review of the trial court’s conclusion that a probationer violated a probation

condition involves two steps. “First, we examine the trial court’s factual findings and will uphold

them if supported by credible evidence.” State v. Kane, 2017 VT 36, ¶ 14, 204 Vt. 462, 169 A.3d

4
762 (quotations omitted). Second, we examine the court’s legal conclusion that the probationer’s

actions violated the probation condition. State v. Bostwick, 2014 VT 97, ¶ 11, 197 Vt. 345, 103

A.3d 476. “We uphold that legal conclusion if it is ‘reasonably supported by the findings and does

not constitute an erroneous interpretation of the law.’ ” Id. (quoting State v. Sanville, 2011 VT

34, ¶ 7, 189 Vt. 626, 22 A.3d 450 (mem.)).

¶ 11. We agree with the State that defendant did not raise the modification argument

before the trial court. At the 2019 VOP hearing, defendant argued that condition 31 does not state

that he must complete VTPSA while incarcerated and that after the 2010 VOP hearing, DOC did

not warn him that he risked another violation if he failed to complete the program while

incarcerated. This can only be construed as an argument regarding lack of notice, not that DOC

impermissibly modified the condition. Because defendant did not raise his modification argument

before the trial court, we review for plain error. See, e.g., State v. Provost, 2014 VT 86A, ¶ 14,

199 Vt. 568, 133 A.3d 826. Reversal on plain-error grounds is appropriate where the error is

“obvious” and “strikes at the heart of [defendant’s] constitutional rights or results in a miscarriage

of justice.” Id. (quoting State v. Ayers, 148 Vt. 421, 426, 535 A.2d 330, 333 (1987)).

¶ 12. In this case, we uphold the trial court’s factual findings that defendant was on

probation in 2019 and subject to condition 31. We reverse as plain error the court’s legal

conclusion that defendant violated condition 31 because the conclusion rests on a DOC

interpretation of the condition that is inconsistent with its plain language and thus amounts to an

impermissible modification by DOC. Because defendant’s requested remedy is the same for all

his arguments, and because we grant that remedy, we do not address his other arguments.

5
 ¶ 13. “The power to impose probation conditions rests with the court, not employees of

the DOC.” State v. Putnam, 2015 VT 113, ¶ 64, 200 Vt. 257, 130 A.3d 836; see also 28 V.S.A.

§ 252(a) (“The conditions of probation shall be such as the court in its discretion deems reasonably

necessary to ensure that the offender will lead a law-abiding life or to assist the offender to do

so.”). Similarly, the court retains the exclusive power to modify probation conditions. Bostwick,

2014 VT 97, ¶ 14; see also 28 V.S.A. § 253(a) (granting court power to modify or add probation

conditions). However, probation conditions must retain a measure of flexibility, and “probation

officers may be granted a limited amount of discretion in implementing conditions.” State v.

Rivers, 2005 VT 65, ¶ 15, 178 Vt. 180, 878 A.2d 1070. The line between appropriate DOC

implementation of probation conditions and impermissible modification is adherence to the plain

language of the condition. See Bostwick, 2014 VT 97, ¶ 12; Rivers, 2005 VT 65, ¶ 19; cf. State

v. Bryan, 2016 VT 16, ¶ 23, 201 Vt. 298, 142 A.3d 204 (“Where . . . we have not previously

addressed the type of behavior at issue with respect to [a] probation [c]ondition . . . we return to

the plain and ordinary meaning of the probation condition’s terms.”); State v. Galanes, 2015 VT

80, ¶¶ 13, 22, 199 Vt. 456, 124 A.3d 800 (noting that “[w]hen interpreting the language of a

probation condition, we look first to the plain and ordinary meaning of the terms” and that “[w]e

are required . . . to enforce a probation condition as it is written and not as we wish it had been

written”).

¶ 14. A probation officer crosses the line between implementation and modification of a

probation condition when the officer’s interpretation of the condition is inconsistent with its plain

language. See Bostwick, 2014 VT 97, ¶ 12; Rivers, 2005 VT 65, ¶ 19. In past cases, we have

declined to read words into probation conditions, or to enforce a probation officer’s interpretation

6
imposing requirements not reflected in the language of the condition. In Rivers, the condition

read, “[t]he defendant is to have no contact with children under the age of sixteen without prior

approval of the probation officer.” 2005 VT 65, ¶ 16. The probation officer warned the defendant

that attending a fair would put him in contact with children and thus his unsupervised attendance

risked a VOP charge. After the defendant went to a fair, the trial court ruled that he violated the

condition by placing himself “in close physical proximity to minors under 16 years of age” while

standing near them at the fair. Id. ¶ 1. We reversed, observing that the probation officer’s

interpretation of the no-contact condition prohibited not just touching or verbal, written, or

electronic communication with children, but also prohibited “going to certain places where

children can be expected to congregate,” an interpretation not “evident” from the condition’s plain

language. Id. ¶ 16. We found it significant that the condition proscribed the defendant’s

interaction with all children under the age of sixteen but was silent on “specific public locations or

events where children are often present.” Id. ¶ 19. Accordingly, we held that the “probation officer

converted the probation condition from a contact-based condition to a location-based condition,”

and thus “crossed the line between condition interpretation and modification.” Id.

¶ 15. Similarly, in Bostwick, the relevant condition provided: “You shall reside where

your [s]upervising [o]fficer directs.” 2014 VT 97, ¶ 3. The defendant was released from

incarceration and his probation officer allowed him to live temporarily in a motel but directed him

to look for permanent housing “daily” and imposed a deadline to show “a genuine housing search

effort.” Id. ¶ 4. The trial court found a violation because the defendant’s call log indicated that he

did not call landlords for several weeks and because the probation officer’s deadline passed

without the defendant securing approved housing. We reversed, again holding that the plain

7
language of the probation condition did not support the VOP finding and that the probation officer

crossed the line between condition implementation and modification in imposing the daily search

requirement and the deadline by which defendant needed to find housing. Id. ¶¶ 12, 17. We

declined the State’s invitation to read the condition as “a general probation condition requiring that

[defendant] find a residence approved by his probation officer,” noting that the condition gave the

officer the authority only to “direct” the defendant to live somewhere. Id. ¶ 19. We also rejected,

as contrary to the plain language of the condition, the trial court’s conclusion that it was “more

reasonable” to interpret the condition not as requiring DOC to choose a residence for the defendant,

but rather to set out guidelines within which a probationer is to locate housing on his own and then

seek DOC approval. Id. ¶ 20.

¶ 16. Addressing a defendant’s argument that a probation condition did not give him fair

notice of prohibited conduct, we even declined to interpret a probation condition to mean what the

drafting court likely intended to say but did not. In Galanes, the defendant was subject to the

following condition: “You must inform your [probation officer] of the name and contact

information of any person with whom you are planning to have a date or with whom you are

planning to begin a dating, sexual or romantic relationship, prior to the date or beginning of the

relationship.” 2015 VT 80, ¶ 2. The trial court found a violation when defendant had an unplanned

sexual encounter with his housekeeper and therefore did not inform his probation officer

beforehand. We reversed, holding that the language of the condition—in particular, the terms

“sexual relationship” and “planning”—did not give the defendant fair notice that his spontaneous

conduct was prohibited. Id. ¶¶ 9, 21. We recognized the State’s suggestion that the sentencing

court must have intended a broad reading of the condition, but concluded that “[w]e are

8
required . . . to enforce a probation condition as it is written and not as we wish it had been

written.” Id. ¶ 22.

¶ 17. Here, condition 31 provides: “You will successfully enroll, participate in, and

complete a program for sex offenders approved by DOC and assume the costs of your treatment.”

DOC interpreted this language to require defendant to complete the VTPSA high-intensity

program while incarcerated. Based on the plain language of the probation condition, we conclude

that DOC’s interpretation constitutes an impermissible modification of the condition.

¶ 18. First, the 2009 sentencing court used the indefinite article “a” to describe the

required program. The court did not specify a particular program, and certainly did not require the

VTPSA high-intensity prison program. Second, the sentencing court used the word “approved”—

not “directed,” not “mandated,” not “assigned.” “Approve” means “to have or express a favorable

opinion of; to accept as satisfactory; to give formal or official sanction; to take a favorable view.”

Approve, Miriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/approve [https://perma.cc/X56K-V4PQ]; see also Approve, Black’s Law

Dictionary (11th ed. 2019) (defining “approve” as “[t]o give formal sanction to; to confirm

authoritatively”). We decline the State’s invitation to read the word “approved” as “directed” or

the latter’s synonyms. Third, the sentencing court required defendant to pay for his treatment. The

State offers no explanation of how defendant was to pay for his treatment while incarcerated or

how its interpretation of the condition accounts for that express requirement. The requirement to

pay for the program contemplates that defendant can satisfy the condition in the community.

Fourth, when read as a whole, the condition indicates that defendant has a choice of programs—a

choice subject to DOC approval. Contrary to DOC’s insistence on the VTPSA high-intensity

9
prison program, flexibility is written into the condition. To the extent the condition grants the

probation officer discretion in its implementation, it is to approve or reject the program defendant

chooses. In conferring upon itself the power to direct defendant to complete the VTPSA high-

intensity program during the unsuspended portion of his sentence, DOC added requirements not

expressly or impliedly present in the condition and thus crossed the line between implementation

and modification. See Bostwick, 2014 VT 97, ¶ 12; Rivers, 2005 VT 65, ¶ 19. Defendant has

been incarcerated since he was sentenced in January 2009. Thus, he has not had the opportunity

to complete a sex-offender treatment program of his choosing in the community. The plain

language of the probation condition does not support the trial court’s conclusion that defendant

violated its terms.

¶ 19. The court’s conclusion constitutes plain error and must be reversed. As noted,

reversal on plain-error grounds is appropriate where the error is “obvious” and “strikes at the heart

of [defendant’s] constitutional rights or results in a miscarriage of justice.” Provost, 2014 VT 86A,

¶ 14 (quoting Ayers, 148 Vt. at 426, 535 A.2d at 333). “[E]rrors in unsettled areas of law are not

obvious, and therefore not plain.” Id. The court’s conclusion that defendant violated condition

31—a conclusion based on DOC’s impermissible modification of the condition—exposed

defendant to ten additional years of incarceration and thus resulted in the deprivation of

constitutional rights and a miscarriage of justice. See Putnam, 2015 VT 113, ¶ 73 (finding plain

error where delegation of court’s authority to impose probation conditions deprived defendant of

substantial right and affected “the integrity of the judicial process by giving the probation officer

authority reserved to the courts”). Given our settled law in Rivers and Bostwick, it was plain error

for the trial court to permit DOC to depart so far from the plain language of condition 31.

10
 ¶ 20. The State points to our line of cases holding that a defendant can violate a condition

or requirement of probation “even if adequate time remains within the probation term to complete

the requirement where a defendant has ‘actively refused to participate’ or the defendant’s conduct

evinces an intent not to comply.” Stuart, 2018 VT 81, ¶ 23 (citing State v. J.S., 2018 VT 49, ¶ 16

n.5, 207 Vt. 379, 189 A.3d 552, and Provost, 2014 VT 86A, ¶¶ 15-16). In those cases, however,

the conditions expressly mandated specific programs and the defendants’ actions constituted

failures to complete those programs. See J.S., 2018 VT 49, ¶¶ 13, 18 (upholding VOP finding

where defendant was required to “appear before the Restorative Justice Panel and actively

participate and complete all of the conditions set by the Panel” and defendant refused to take

responsibility for the offense, a prerequisite for Panel participation); Provost, 2014 VT 86A, ¶¶ 2-

6, 16 (upholding VOP finding where defendant was required to complete the Domestic Violence

(DV) Solutions program and defendant cancelled two intake meetings and was uncooperative and

threatening at a third). In contrast, condition 31 allows defendant to choose a sex-offender

treatment program and complete it in the community. Because defendant has not had the

opportunity to participate in a treatment program of his choosing in the community, we cannot

find that he has actively refused to participate or that his conduct evinces an intent not to comply

with condition 31.

¶ 21. Finally, our interpretation does not eliminate DOC discretion or flexibility in

implementing condition 31. See Rivers, 2005 VT 65, ¶ 15 (observing that probation conditions

must retain some flexibility and that “probation officers may be granted a limited amount of

discretion in implementing conditions”). DOC retains the discretion to approve or reject the

program defendant chooses and the flexibility inherent in supervising defendant’s progress. In

11
implementing the condition, DOC must bear in mind that the purpose of probation is not to punish

defendant for the crime, but to rehabilitate defendant and protect society. State v. Moses, 159 Vt.

294, 305, 618 A.2d 478, 484 (1992). Consistent with the rehabilitative purpose of probation, DOC

must assist defendant in finding suitable sex-offender treatment programs. DOC can also seek

court modification of the condition under 28 V.S.A. § 253(a) (authorizing court to modify

probation conditions “on application of a probation officer or of the offender, or on its own

motion”).

Reversed; mandate to issue forthwith.

FOR THE COURT:

Associate Justice

¶ 22. CARROLL, J., dissenting. I disagree that the trial court committed error, let

alone plain error, in finding that defendant violated condition 31 by failing to complete the sex-

offender-treatment program approved by DOC. The language of the condition properly delegated

authority to DOC to oversee defendant’s completion of a sex-offender-treatment program

appropriate to defendant’s needs. DOC determined the appropriate program was the high-intensity

Vermont Treatment Program for Sexual Abusers (VTPSA), which is offered only in prison.

Defendant had notice from DOC and the court that he was expected to complete VTPSA or he

would be in violation of his probation order. He failed to complete the program. The trial court

properly determined that this was a violation of condition 31. However, even if the court erred,

12
the alleged error was not so obvious under existing law that reversal is justified. Accordingly, I

dissent.

¶ 23. It is true that the courts have exclusive power to impose or modify probation

conditions. State v. Rivers, 2005 VT 65, ¶ 15, 178 Vt. 180, 878 A.2d 1070; 28 V.S.A. § 253(a).

However, we have repeatedly stated that probation conditions should retain some flexibility and

that probation officers may be granted limited discretion to implement conditions so long as they

are not effectively establishing them. Rivers, 2005 VT 65, ¶ 15. And we have specifically

recognized in the context of conditions imposing counseling requirements that “[d]elegation of the

implementation of probation conditions is necessary to require a defendant to participate in

rehabilitative programs appropriate to the defendant’s needs at a particular time in the probation

period.” State v. Moses, 159 Vt. 294, 300, 618 A.2d 478, 482 (1992); cf. State v. Cornell, 2016

VT 47, ¶ 18, 202 Vt. 19, 146 A.3d 895 (explaining that it is permissible “to delegate authority to

a probation officer to select among a predetermined list of programming options relevant to a

defendant’s particular needs—for example, substance abuse counseling or anger management”).

¶ 24. Condition 31 provides: “You will successfully enroll, participate in, and complete

a program for sex offenders approved by DOC and assume the cost of your treatment.” This

condition properly delegated to DOC the authority to oversee defendant’s completion of a sex-

offender treatment program appropriate to his needs and risk level. Moses, 159 Vt. at 300, 618

A.2d at 482.

¶ 25. Unlike the majority, I believe the term “approve” is broad enough to encompass the

interpretation DOC gave it. Ante, ¶ 18. The condition plainly authorized DOC to ensure defendant

participated in the best and most effective program for defendant’s needs. If DOC determined that

13
defendant posed a low risk, it could approve a community-based program to satisfy the probation

condition. In that case, defendant would be required to cover the costs of his treatment. If,

however, DOC determined that defendant posed a high risk to reoffend, it could approve a more

intensive prison-based program instead. The condition did not, as the majority suggests, give

defendant free rein to choose which program he wanted to participate in. Ante, ¶ 20. Rather, it

gave DOC authority to oversee defendant’s completion of a sex-offender program that DOC

determined to be appropriate.*

¶ 26. As it happened, DOC screened defendant when he was first incarcerated and

determined that the high-intensity VTPSA was best suited to his needs and risk level. This

determination was based in part on defendant’s criminal history, which included eleven prior sex

offenses. The high-intensity VTPSA is offered only in prison. Accordingly, defendant was

required to complete the program while serving the incarcerative portion of his sentence to comply

with condition 31. The plain language of the condition supports DOC’s means of implementing

it. I therefore disagree with the majority’s conclusion that DOC improperly modified the condition

by “conferring upon itself the power to direct defendant to complete the VTPSA high-intensity

program during the unsuspended portion of his sentence.” Ante, ¶ 18.

¶ 27. The cases relied upon by the majority do not support its conclusion that DOC

impermissibly modified condition 31. In State v. Bostwick, we reversed the trial court’s finding

*
According to the Vermont Department of Corrections website, “[m]ore intensive
treatment services are reserved for higher risk cases.” Vt. Dep’t of Corr., Vt. Treatment Program
for Sexual Abusers (last visited Feb. 27, 2020), https://doc.vermont.gov/programs/vtpsa
[https://perma.cc/WBT7-B8PM]. Defendant was evidently considered by DOC to be at a
relatively high risk to reoffend. It is therefore unlikely that DOC would have approved
programming in the community.

14
that the defendant violated a condition requiring the defendant to reside where his probation officer

directed by failing to find permanent, approved housing by the date set by the officer and by failing

to call landlords every day. 2014 VT 97, ¶ 17, 197 Vt. 345, 103 A.3d 476. We explained that

these conditions were not obviously implied by the residency condition, which “gives the officer

the authority only to direct defendant to live somewhere. If the officer has given defendant no

direction as to where he should live, or gave and then somehow withdrew his direction, defendant

cannot be said to be violating his probation officer’s nonexistent direction.” Id. ¶ 19. Similarly,

in State v. Rivers, we reversed a VOP finding that was based on the probation officer’s

determination that a condition prohibiting the defendant from having contact with children under

the age of sixteen extended to prohibit him from going to places where children might congregate.

2005 VT 65, ¶ 19. We held that the interpretation was not supported by the plain language of the

condition and the officer therefore “crossed the line between condition interpretation and

modification” by “convert[ing] the probation condition from a contact-based condition to a

location-based condition.” Id.

¶ 28. Unlike the conditions in Bostwick and Rivers, condition 31 expressly gave the

probation officer authority to oversee defendant’s completion of sex-offender treatment approved

by DOC. This case is therefore more like State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988),

which we distinguished in Bostwick. Bostwick, 2014 VT 97, ¶ 19. In Peck, the defendant was

required to participate in and complete mental-health counseling to the full satisfaction of his

probation officer. 149 Vt. at 620, 547 A.2d at 1331. The probation officer directed the defendant

to participate in a sexual offenders group that required him to take responsibility for his conduct.

Defendant attended several sessions but refused to take responsibility and was terminated from the

15
group. We affirmed the trial court’s conclusion that the defendant’s refusal to admit responsibility

in the group constituted a knowing failure to complete counseling to the satisfaction of his

probation officer. Id. at 621, 547 A.2d at 1332. In Peck, as here, the probation officer had

discretion to implement the court’s condition by requiring completion of an approved program,

and the defendant’s failure to complete the program constituted a violation. See id.; Bostwick,

2014 VT 97, ¶ 19 (explaining that counseling condition at issue in Peck was distinguishable from

residency condition in Bostwick because in Peck probation officer was supposed to oversee

completion of counseling program).

¶ 29. It is clear from the record that defendant had notice that DOC expected him to

successfully complete the VTPSA in order to comply with condition 31. The State meets its

burden of proving a probation violation “by showing that there has been a violation of the express

conditions of probation, or of a condition so clearly implied that a probationer, in fairness, can be

said to have notice of it.” State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996)

(quotations omitted). “Fair notice can . . . be provided by the instructions and directions given to

defendant by his or her probation officer.” Peck, 149 Vt. at 619-20, 547 A.2d at 1331.

¶ 30. At the first VOP hearing in May 2010, defendant admitted that he had violated

condition 31 by voluntarily withdrawing from VTPSA. According to the complaint filed by DOC,

defendant had been warned that failing to complete VTPSA would result in a probation violation,

and he indicated he understood. The State’s attorney explained at the hearing that “it’s important

to note for the defendant’s understanding that the probation—or the Department of Corrections

would only release him if he did treatment.” The court agreed and stated, “I mean, if he doesn’t

complete VTPSA program, the sex-offender program, they’re probably going to have you max out

16
on that. And you may well be revoked on the additional two to ten years.” The DOC representative

attending the hearing stated, “Exactly.” Defense counsel then stated that defendant understood

and accepted those requirements. Defendant stated that he agreed. Defendant therefore had ample

notice, from DOC and the 2010 VOP court, that completing VTPSA in prison was required to

avoid a further violation of condition 31. See State v. Danaher, 174 Vt. 591, 593, 819 A.2d 691,

694-95 (2002) (“We will not disturb the trial court’s finding regarding notice if the record contains

any credible evidence that fairly and reasonably demonstrates that defendant received fair and

actual notice.”). Importantly, defendant did not challenge DOC’s interpretation of condition 31 at

the 2010 VOP proceeding. Even if it could be said that DOC did not interpret, but instead

modified, condition 31, defendant could have made this challenge at that time and failed to do so.

See Bostwick, 2014 VT 97, ¶ 14 (“Before being subject to any modification to a probation

condition, a defendant must have a reasonable opportunity to challenge that modification.”).

¶ 31. After his probation was revoked in 2010, defendant was repeatedly offered the

opportunity to participate in VTPSA, but he refused to do so. It is well-settled law that “a

probationer’s failure to participate in an assigned program constitutes noncompliant action by the

probationer.” State v. J.S., 2018 VT 49, ¶¶ 15-16, 207 Vt. 379, 189 A.3d 552 (emphasis omitted);

see also State v. Provost, 2014 VT 86A, ¶ 16, 199 Vt. 568, 133 A.3d 826 (holding same).

“Moreover, once the probationer has actively refused to participate, a violation finding is not

‘premature,’ even if time remains in which to complete the program.” J.S., 2018 VT 49, ¶ 16. The

majority asserts that these cases do not apply because the probation conditions addressed therein

“expressly mandated specific programs.” Ante, ¶ 20. However, we have applied the same

principles in many other cases that involved conditions similar to the one here. See, e.g., State v.

17
Masse, 164 Vt. 630, 631, 674 A.2d 1253, 1254 (1995) (mem.) (holding defendant violated

condition directing him to “actively participate in mental health and sex offender counseling to the

satisfaction of [his] probation officer” through poor attendance, unwillingness to discuss offense,

take responsibility, or share thoughts and feelings, and failure to complete homework

assignments); State v. Foster, 151 Vt. 442, 443, 447, 561 A.2d 107, 109 (1989) (affirming violation

of condition requiring defendant to “actively participate in mental health counseling related to

sexual offending potential” where defendant attended screening appointment but refused to

cooperate with psychologist by talking about offense); Peck, 149 Vt. at 620, 547 A.2d at 1331

(holding defendant responsible for violating condition requiring he attend and participate in

mental-health counseling as directed by probation officer and complete it to officer’s satisfaction

where defendant continually refused to admit offense and was terminated from group).

Defendant’s steadfast refusal to participate in VTPSA was sufficient to support a violation even if

he still had time in which he theoretically could complete some other treatment program. I

therefore believe the State met its burden and the court properly found that defendant violated

condition 31.

¶ 32. Moreover, even if the court erred in finding a violation of condition 31 based on

defendant’s failure to complete VTPSA in prison, I disagree that the error was so obvious that it

warrants reversal. “A plain error is one that is clear or obvious under existing law.” State v.

Koons, 2011 VT 22, ¶ 13, 189 Vt. 285, 20 A.3d 662. Under existing law, it was not obvious that

DOC exceeded its authority by requiring defendant to complete VTPSA in prison. We have

repeatedly stated that it is permissible to delegate authority to a probation officer to select a

programming option within a predetermined category that is relevant to a defendant’s particular

18
needs. Cornell, 2016 VT 47, ¶ 18. The condition gave DOC discretion to determine that defendant

required the high-intensity program, to approve this program and to oversee his completion of that

program. The court reasonably concluded under the circumstances that defendant failed to comply

with condition 31 by not completing VTPSA while incarcerated. If this was error, it was not clear

or obvious enough to warrant reversal absent a timely objection.

¶ 33. “[A] probation agreement is not to be treated as a strait-jacket that defies common

sense.” Austin, 165 Vt. at 400, 685 A.2d at 1083 (quotation omitted). The majority’s interpretation

of condition 31 is overly narrow and denies DOC the necessary flexibility to implement the

rehabilitative goal of ensuring defendant gets the treatment he needs to prevent recidivism. I

therefore respectfully dissent.

Associate Justice

19