State v. Hemingway

Dooley, J.

¶ 1. Defendant appeals from the trial court’s order revoking his probation. On appeal, defendant argues that he did not receive a “certificate explicitly setting forth” his probation conditions, as required by 28 V.S.A. § 252(c), and that he did not have notice of the conditions. He also contends that the court did not make adequate factual findings regarding the credibility of *443defendant’s wife, who is the complainant, and that the court’s findings were erroneous. We agree with defendant’s claim as to the failure to comply with the requirements of § 252(c) and reverse on that ground.

¶ 2. On April 12, 2010, defendant pled guilty, by plea agreement, to first-degree aggravated domestic assault for strangling the complainant, and to five counts of violations of conditions of release. The plea agreement, signed by defendant and his attorney, contained a special condition of probation that defendant not abuse or harass the complainant. At the beginning of the plea hearing, in defendant’s presence, the State noted orally on the record the conditions of release, which included “no abuse or harassment of [the complainant].” After a plea colloquy, the judge said, “Your probation will be for a period of at least ten years. And the other conditions we’ve described here all apply.” The court accepted the plea agreement and sentenced defendant to five-to-fifteen years, all suspended but forty days to serve. Defendant did not receive a “certificate explicitly setting forth the conditions upon which he [was] released.” 28 V.S.A. § 252(c). The State concedes that defendant never signed a probation order.

¶ 3. In July 2010, defendant and the complainant had an altercation in which the complainant alleged that defendant became violent. In the beginning of August, the complainant advised the probation office that defendant continued to call her, drive by her house, and follow her friends. He was then arrested for a violation of probation. In September, the State filed a violation of probation complaint against defendant. A violation of probation merits hearing was held on March 3, March 30, and April 28, 2011.

¶ 4. At the merits hearing, defendant’s probation officer first testified that he had the opportunity to meet with defendant and to review defendant’s conditions of probation. Later, the probation officer was asked whether he had reviewed the conditions of probation with defendant. The probation officer answered, “I don’t recall if I did or not, if we specifically went over — over those conditions.” The court asked the probation officer how defendant knew “what the conditions of probation were,” and the probation officer replied, “I know — how does he know, I don’t know.”

¶ 5. The complainant testified about the July 2010 incident as follows. Defendant became upset when the complainant went to a fair at the end of July. When she returned from the fair, defend*444ant began calling her and her family members. He then drove to the home at which the complainant was staying and began to yell at her and call her vulgar names. She got in a vehicle with defendant, and he continued to berate her during the drive and after they arrived back at the complainant’s home. Defendant slapped the complainant in the face and grabbed her neck.

¶ 6. The complainant also testified that defendant had contacted her and her supervisor at the campground where she worked during the summer of 2010, that he threatened to burn down the campground, and that her supervisor would not rehire her because of her relationship with defendant. She further testified that, in the past if she had been upset with someone, she had hit herself and then claimed that someone had assaulted her. She testified that she was currently upset with defendant. She testified that she had recanted abuse allegations before “because of the kids and other reasons” and “[bjecause he would always tell me that he was sorry ... I felt bad for the girls and I was with him and I just wanted him to get better.” She testified that she was scared of defendant.

¶ 7. Defendant’s mother testified that she saw no physical contact between the complainant and defendant on the day of the fair, and that she did not believe defendant had assaulted the complainant in the past. The complainant’s mother testified that the complainant tells the truth sometimes, and sometimes she does not, “just like everybody else.” The complainant’s mother also testified that the complainant had previously asked her to “say whatever [she] could” to keep defendant out of jail, and that the complainant had previously recanted allegations of abuse. By way of stipulation, the complainant’s campground supervisor’s deposition testimony was admitted. The supervisor stated that defendant was very polite, that she would not rehire the complainant because of the complainant’s character, and that defendant did not threaten to burn down the campground.

¶ 8. The court first found that defendant was on probation and that certain conditions of probation were imposed. The court cited State v. St. Francis, 160 Vt. 352, 354, 628 A.2d 556, 557-58 (1993), reasoning that defendant had notice of, and agreed to the conditions, because he signed a plea agreement that was accepted and approved by the court and in which defendant agreed not to abuse or harass the complainant. The court further found that *445defendant violated the no-abuse-or-harassment condition. The court found that the complainant “has a spotted history of credibility,” that she may have lied to the State and the defense regarding defendant’s activities at her workplace, and that she has lied and had others lie in order to get the State to dismiss previous charges against defendant. Nevertheless, the court credited the complainant, stating that her “testimony regarding the activity surrounding the evening at the fair had the ring of truth.” Ultimately, the court sentenced defendant to serve the underlying sentence of five-to-fifteen years.

¶ 9. Defendant challenges his conditions of probation on two grounds: (1) defendant never agreed to the condition at issue so he is not bound by it; and (2) the court failed to comply with the written notice requirements of 28 V.S.A. § 252(c), and that failure makes the condition unenforceable against him. Defendant also argues that the court did not make adequate factual findings on the complainant’s credibility and that the court’s findings are clearly erroneous. The State contends that defendant had notice of his probation conditions because he negotiated and signed a plea agreement, which contained the no-abuse-or-harassment clause, and that the court’s findings are adequate and supported by the evidence. Because we agree with defendant that the court’s failure to comply with § 252(c) makes the probation condition unenforceable, we do not reach the parties’ arguments as to defendant’s actual notice of, or agreement with, the condition.

¶ 10. The question of whether the failure to comply with 28 V.S.A. § 252(c) renders a revocation of probation invalid is a legal question, which we consider de novo. See State v. Smith, 2011 VT 83, ¶ 4, 190 Vt. 222, 27 A.3d 362.

¶ 11. The statute at issue provides that a defendant who is placed on probation “shall be given a certificate explicitly setting forth the conditions upon which he or she is being released.” 28 V.S.A. § 252(c). Generally, the imperative “shall” indicates that the provision is mandatory. See In re Green, 2006 VT 88, ¶ 2, 180 Vt. 597, 908 A.2d 453 (mem.). Accordingly, § 252(c) mandates that a defendant receive a certificate detailing his or her conditions of probation; however, the statute does not provide an explicit consequence for the failure to comply with its terms. The issue, therefore, is the correct remedy for statutory noncompliance, as it is undisputed that defendant in this case did not receive the *446requisite certificate. As detailed below, we are persuaded by defendant’s arguments that the trial court’s failure to comply with the statutory requirement makes the condition unenforceable.

¶ 12. We have recently addressed the question of when failure to comply with a statutory notice requirement renders notice invalid in Vermont. In In re Soon Kwon, 2011 VT 26, ¶ 14, 189 Vt. 598, 19 A.3d 139 (mem.), we held that the question of whether actual notice is sufficient or whether statutory notice is required is “dependent on the statutory scheme and the content of the legislation.” In that case, which arose in the landlord-tenant context, we noted that the section of the Landlord-Tenant Act that provided for notice was a “consumer protection provision,” id. ¶ 15, and recognized a “clear rationale in this context for requiring specific methods of giving notice,” which was that the purpose of the statute was to bring about the swift return of security deposits. Id. ¶ 19. We reasoned that “[t]he required methods of returning the deposit are likely to cause expeditious receipt; other methods may not.” Id. Consequently, we found that strict compliance with the statutory provision was necessary to render the notice valid.

¶ 13. We reiterated the holding of Soon Kwon in Daniels v. Elks Club of Hartford, 2012 VT 55, ¶ 35, 192 Vt. 114, 58 A.3d 925, but found that in that context — notice from a junior creditor to a mortgagee of his or her interest in a property — the statutory requirement “appears to have the primary purpose of ensuring that mortgagees not be burdened with constantly monitoring for attachments before issuing advances.” Id. ¶ 36. Therefore, we reasoned, “[a]ccepting actual notice in the place of written notice does not undermine this purpose because it does not impose any additional burden upon the mortgagee.” Id.

¶ 14. In this case, we must similarly look for special characteristics of the subject matter and structure of the statute that shed light on whether the Legislature intended actual notice to suffice. In this area of law, there are two reasons for us to insist on § 252(c) compliance — consisting of a clear, written probation agreement — to find that a probation condition is effective.

¶ 15. First, a probationer may not challenge a probation condition in defense of a violation complaint, but must do so earlier, before noncompliance is alleged. State v. Austin, 165 Vt. 389, 401-02, 685 A.2d 1076, 1084-85 (1996). To do so, the proba*447tioner must have the exact language of the condition, not the general description in a plea agreement or the description given orally at sentencing. In this case, the majority of the special probation conditions contained in the plea agreement were worded differently in the probation order. The wording of § 252(c) shows that the Legislature intended that defendant receive in writing the exact wording of the conditions by its requirement that the certificate “explicitly set[] forth the conditions upon which he or she is being released.” (Emphasis added.) Without enforcement of this requirement, defendant will lose the opportunity to challenge probation conditions because he or she will not know that they were imposed. Essentially, that is what occurred here, where twenty probation conditions were imposed on defendant without notice.1

¶ 16. The second reason, however, is probably the more important one. In light of what is at stake for the probationer — loss of liberty for a violation — it is vital that the probationer have a clear and certain understanding of the obligations assumed. Endorsing a requirement that probation conditions be in writing, Professor LaFave observed that “when that is not done the probationer will probably misunderstand the precise terms of his obligations.” 6 W. LaFave, J. Israel, N. King & O. Kerr, Criminal Procedure § 26.9(a), at 861 (3d ed. 2007). Indeed, probation revocation cases that have come before us in which the scope and nature of the probationer’s obligation is in dispute show the need for clear probation obligations and notice of what those obligations are.

¶ 17. A good example of such a dispute is seen in the recent decision in State v. Blaise, 2012 VT 2, 191 Vt. 564, 38 A.3d 1167 (mem.), which dealt with oral instructions given by a probation officer pursuant to a probation condition requiring compliance with any such instructions. We acknowledge that the statute does not require such instructions by a probation officer to be in writing, but the confusion in Blaise caused by insufficient written instructions demonstrates the type of dispute that this Court would *448regularly find itself policing if we did not require statutory written notice of probation conditions. The probation officer in that case purported to enter into a written contract with the probationer with respect to the most important probation conditions, but the terms of the contract were sparse, incomplete and vague. Thus, the trial court relied upon the testimony of the two probation officers who worked on defendant’s case, whose memories of their oral instructions to the probationer were also incomplete and vague. In a split decision, a majority of this Court found that the evidence, either the writing or the testimony, did not support the State’s claim of the probation conditions that defendant was alleged to have violated. The majority concluded, with respect to the main condition at issue, that it did not require that defendant attend a particular treatment program that he had chosen voluntarily to attend but stated only that attendance at that program met the applicable probation condition. Id. ¶ 20. The dissent responded: “It is not a finer point of the Geneva Convention we are interpreting, but an everyday probation condition. Its terms and requirements were plain enough to the defendant, the officer, and the court.” Id. ¶ 35 (Burgess, J., dissenting). The lesson of the confusion and the ultimately divided decision in Blaise is that we need clear, explicit terms in writing.

¶ 18. This case similarly presents a compelling example of that need. The first page of the plea agreement states in summary terms the six additional probation conditions defendant will agree to for the three offenses covered by that page. The second page, which is separately signed by defendant, the prosecutor, and the judge, covers three additional offenses but contains no special probation conditions for those offenses. On the backs of both pages is a list of the standard conditions that will be imposed by the court. Not all the standard conditions ultimately included in the court order are stated on this back side. At the change-of-plea hearing the prosecutor described the six additional probation terms to be imposed as “the probation conditions” and never mentioned the standard probation conditions. The only statement from the judge was: “And the other conditions we’ve described here all apply,” even though the judge had described no probation conditions. We recognize that the probation condition for which there is the strongest claim that defendant had actual notice is the one at issue, at least as to the three offenses covered by it. The statement of this condition in the plea agreement is the same *449as in the probation order. If the violation were based on one of the standard conditions, the State would have to argue actual notice based on the boilerplate terms on the back of the plea agreement — that defendant probably never saw — and in the face of the prosecutor’s statement that the probation conditions were the six special conditions, without mentioning the standard conditions. If the violation were based on a condition added by the court, with no notice to the defendant, this case would be even clearer.

¶ 19. We conclude that the Legislature reached a balance between justice in the individual case and proper administration of the probation system by requiring that there be explicit, written notice of probation terms in every case. Turning this notice requirement into a paper tiger, by holding that there is no consequence for its violation, would undermine its purpose. The main incentive to obey the command would be eliminated, and we would be required to determine what actual notice was given based on an imprecise record. We decline to perpetuate a world in which it could take a divided vote of this Court to figure out the terms of probation.

¶20. The State relies in particular on our decision in St. Francis, 160 Vt. 352, 628 A.2d 556, to argue that the conditions of probation are effective at the moment they are read aloud in open court — at the change-of-plea hearing — rather than at the moment the probation order is signed. That case, however, is fully consistent with our decision today. In St. Francis, the defendant signed a probation order on the same day he was sentenced. The issue in that case was whether his probation could be revoked for acts that occurred before he was officially on probation and before he signed a “probation contract,” but after he had been sentenced and signed a probation order. We held that the probation order itself was sufficient basis on which to revoke that defendant’s probation, even prior to the beginning of the probationary period. Id. at 355, 628 A.2d at 558. Thus, the obvious distinguishing factor between St. Francis and this case is that the defendant in St. Francis had, in fact, signed a probation order issued by the court.

¶ 21. The State also argues that the plea agreement, signed by defendant and the prosecutor prior to the sentencing hearing, is enforceable as a contract in its own right and therefore may be used to prove that defendant violated his conditions of probation. *450In this case the plea agreement, which was signed by defendant, contained the same condition that the State is attempting to enforce in the unsigned probation order. In essence, the State is arguing that we ignore § 252(c) or hold that a violation of the statute does not invalidate a condition if there is a plea agreement containing the same condition. This argument is a variation of the State’s argument that actual notice should be sufficient, irrespective of compliance with § 252(c), and we reject it for the same reason.

¶ 22. Additionally, we reject the State’s argument because plea agreements — although binding on the prosecutor — are not binding on the sentencing court. V.R.Cr.P. 11(e)(2). If the court accepts a plea agreement, it is bound to adopt a disposition “provided for in the plea agreement or a less onerous disposition.” V.R.Cr.P. 11(e)(3). Thus, the requirement that defendant be provided with a “certificate explicitly setting forth the conditions upon which he or she is being released,” 28 V.S.A. § 252, is not satisfied by the plea agreement, because the conditions of release are ultimately still set by the court at sentencing, and not by the prosecutor during plea negotiations. The conditions of release thus do not necessarily reflect all the prosecutor seeks.2 The terms of the plea agreement, therefore, may not be used alone to prove a violation of probation; only a signed probation order may be so used. None of the cases cited by the State persuade us to ignore this explicit requirement of § 252.

¶ 23. In sum, we uphold defendant’s challenge based on the failure to meet the requirements of § 252(c). Without the explicit written notice required by law, defendant’s violation of probation cannot stand. Because we reverse on this ground, we do not reach the other claims defendant makes on appeal.3

Reversed.

See infra, ¶ 18 (describing the standardized probation agreement forms used in this case). In theory, each probation order is the order of a judge, and each order can be different. In reality, the order is produced by the court’s computer system, with the only variation being in the number of conditions and the wording of some of them.

The State’s general assertion that “[t]he special conditions of the order simply mirror those contained on the plea agreement” may reflect common practice, but may not be taken as a foregone conclusion.

In reaching this result, we have not considered either the 911 call transcript or the letter contained in the State’s printed case, nor have we relied upon the State’s characterization of the execution of plea agreements and probation orders contained in its brief. Thus, we deny defendant’s motion to strike as moot.