State v. Hemingway

Reiber, C.J.,

¶ 24. dissenting. While defendant did not receive a formal certificate setting forth the conditions of his probation, *451there is no question that he had actual notice of the plea condition that he refrain from abusing and harassing his wife, the victim of his domestic violence. Not only was this an obvious restriction on defendant’s conduct given the nature of his offense, but the condition was stated orally at the change-of-plea hearing, written on the plea agreement, which defendant signed, and contained in the resulting probation order. The main purpose of the statutory requirement is to provide defendants with notice of their probation conditions. Because defendant had actual notice of the condition against abusing or harassing his wife, the failure to provide a certificate was harmless and the condition can be enforced. I dissent.

¶ 25. The undisputed relevant facts demonstrate that defendant was well aware of the condition that he violated. Defendant pleaded guilty to violations of conditions of release and to first-degree aggravated domestic assault for strangling his wife. Not surprisingly, the plea agreement signed by defendant contained the following hand-written special condition “No abuse or harassment of [defendant’s wife].” Defendant signed the plea agreement. At the plea hearing, the state’s attorney explained the terms of the plea agreement, including the no-abuse-or-harassment condition. The court accepted the plea and sentenced defendant to five-to-fifteen years, all suspended but forty days to serve, and instructed that the condition would be imposed. The resulting probation order included the no-abuse-or-harassment condition. Defendant did not, however, receive a “certificate explicitly setting forth the conditions upon which he [was] released.” See 28 Y.S.A. § 252(c). After an altercation with his wife, defendant was charged with violating the no-abuse-or-harassment condition of his probation. Following a hearing, the court found defendant had notice of the conditions. The court found defendant violated his conditions and revoked his probation.

¶ 26. Defendant’s defense to the probation violation is that he lacked notice of the condition precluding him from' abusing or harassing his wife, the victim of his domestic assault. The majority does not reach the question of whether defendant had actual notice of the condition because it concludes that lack of a certificate invalidates the conditions as a matter of law. Such a technical and extreme reading of the statute is neither mandated by the statute’s language nor necessary to effectuate the statute’s purpose of providing notice of probation conditions to defendants. *452Based on the court’s findings that defendant had actual notice of the prohibition against abusing or harassing his wife, the failure to provide a certificate was harmless and the court’s finding of a violation and consequent revocation of defendant’s probation should be affirmed.

¶ 27. The relevant statute states: “When an offender is placed on probation, he or she shall be given a certificate explicitly setting forth the conditions upon which he or she is being released.” 28 V.S.A. § 252(c). Ascertaining whether a statutory provision is mandatory or directory is a matter of legislative intent, which is gleaned from the statute’s language and purpose. In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892 (1987). The difference between a mandatory and directory statute is the consequence for failing to perform the delineated duty. The difference rests on whether the failure to perform a statutory duty will invalidate the governmental action to which the requirement is related. 1A Sutherland Statutory Construction § 25:3 (7th ed. 2013).

¶ 28. Certainly, a statute’s use of the term “shall” generally indicates that the provision is mandatory. See In re Green, 2006 VT 88, ¶ 2, 180 Vt. 597, 908 A.2d 453 (mem.) (concluding that elections statute using word “shall” and containing a specific consequence for failure to comply created a mandatory requirement). But, this is not the only relevant question. Even where a statute uses “shall,” if it does not contain a consequence for failure to act, the provision is directory. See, e.g., Shlansky v. City of Burlington, 2010 VT 90, ¶ 17, 188 Vt. 470, 13 A.3d 1075; Mullestein, 148 Vt. at 173-74, 531 A.2d at 892.

¶ 29. Here, the statute neither identifies a person or entity particularly charged with providing the certificate, nor does it prescribe a consequence for failing to give the certificate to a particular defendant. The lack of an express requirement to complete the duty and a specified consequence for failure to comply indicates a lack of legislative intent to create a mandatory requirement. State v. Singer, 170 Vt. 346, 348, 749 A.2d 614, 616 (2000). The majority’s contrary conclusion runs counter to our case law.

¶ 30. Most importantly, the act of providing the certificate is not essential to the main purpose of the statute. If an action is essential to the main objective of the statute, then the statute is ordinarily mandatory and violation of its terms will invalidate sub*453sequent proceedings. Warner v. Mower, 11 Vt. 385, 394 (1839). If, however, the provision merely explains “the manner of doing a thing, and is not of the essence of the authority for doing it,” the statute is directory and a violation will not invalidate subsequent proceedings. Id.

¶ 31. Here, the statute at issue falls into the latter category. The main purpose of the statute is to provide defendants with notice of probation conditions in accordance with due process requirements. See State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990) (holding that due process requires that defendant has fair notice of what acts will violate probation, and that instructions from probation officer can provide such notice). This is reflected in the limited discussion of § 252(c) in our cases. In State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988), this Court held that “due process requires that a convicted offender be given fair notice as to what acts may constitute a violation of his probation, thereby subjecting him to loss of liberty.” Id. at 619, 547 A.2d at 1331. This Court described that such notice could be accomplished through the § 252(c) certificate requirement or it could “be provided by the instructions and directions given to defendant by his or her probation officer.” Id. at 619-20, 547 A.2d at 1331. This indicates that § 252(c) is one, but not the sole, means to provide defendants with notice. Thus, where the statute is not followed, but the defendant otherwise receives notice of a condition, the subsequent proceedings to enforce the noticed condition are valid.

¶ 32. Absent consequences for noncompliance or a more definitive statement from the Legislature that it intended to invalidate probation violations where a certificate was not provided, § 252(c) should be construed in concert with the rest of the statutory scheme, which aims to effectuate general goals of rehabilitation and protection of the public. The same bill that included the certificate requirement also contained a general purpose section, which has changed little since its enactment. 1971, No. 199 (Adj. Sess.), § 20 (codified as amended at 28 V.S.A. § 1). The following section directs that the entire title shall be “construed in order to effectuate the general purposes,” 28 V.S.A. §2(a), which include “developing and administering a correctional program designed to protect persons and property against offenders of the criminal law and to render treatment to offenders with the goal of achieving their successful return and participation as citizens of the state and community.” 28 V.S.A. § 1(a).

*454¶ 33. Therefore, probation has a rehabilitative purpose, but it is also intended to protect society. State v. Lockwood, 160 Vt. 547, 552, 632 A.2d 655, 659 (1993). Invalidating known conditions that were not provided in a certificate does not further the purpose of providing defendant with notice of his conditions, but actually interferes with the legislative purpose of protecting particular citizens and the public in general. See Howard v. Banks, 544 S.W.2d 601, 603-04 (Mo. Ct. App. 1976) (explaining that public policy may impel interpreting statute containing word “shall” as directory so that failure of public official to act does not prejudice rights of citizens having no direct control over officials). Here, the court’s failure to provide a certificate caused defendant no harm since he was aware of the condition. On the other hand, invalidating the probation revocation based on the ministerial failure to provide the certificate prejudices the victim for whose protection the condition was imposed. Absent more specific direction from the Legislature, this Court should avoid a construction that elevates technicality over the general purpose of protection.

¶ 34. Several states with statutes requiring that a probationer receive a written statement of probation conditions have similarly held that the purpose of the statute is to provide defendants with notice of their probation terms, and conditions can therefore be enforced as long as a defendant receives actual notice. For example, in People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980), the defendant argued that his conditions were unenforceable due to failure to provide notice as required by a statute that stated the defendant “shall be given a written statement explicitly setting forth the conditions on which he is being released.” Id. at 999. The court concluded that the purpose of the statute was to provide defendants with notice of their probationary terms, and that where a defendant had actual notice, failure to comply with the statute did not require reversal. Id.; see also State v. White, 363 A.2d 143, 151 (Conn. 1975) (concluding that statute stating court “shall” deliver written copy of probation conditions to defendant was directory because it did not provide penalty, and enforcing condition against defendant who had actual notice of condition); Seals v. State, 700 N.E.2d 1189, 1190 (Ind. Ct. App. 1998) (rejecting defendant’s claim that failure to provide him with written statement of conditions precludes court from revoking probation, and holding that failure was harmless where defendant was advised and acknowledged he understood condition); Whitlow *455v. Commonwealth, No. 2002-CA-000683-MR, 2003 WL 21949135, at *3 (Ky. Ct. App. Aug. 15, 2003) (holding statute was intended to provide defendant notice, and failure to provide written statement did not preclude enforcement of conditions where defendant had actual notice).

¶ 35. Federal courts have uniformly reached the same result. There is a similar requirement under federal law pertaining to supervised release:

The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject, and that is sufficiently clear and specific to serve as a guide for the defendant’s conduct and for such supervision as is required.

18 U.S.C. § 3583(f). All the circuits to consider the issue have held that the “ultimate goal” of this statute is to provide notice to the defendant, and, therefore, if the defendant has actual notice of the condition he is charged with violating, then the statute’s purpose is satisfied, and any error in providing a written statement is harmless. See United States v. Felix, 994 F.2d 550, 551-52 (8th Cir. 1993); see also United States v. Arbizu, 431 F.3d 469, 470-71 (5th Cir. 2005) (per curiam); United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir. 2002); United States v. Ramos-Santiago, 925 F.2d 15, 17 (1st Cir. 1991).

¶ 36. The majority’s reliance on In re Soon Kwon, 2011 VT 26, 189 Vt. 598, 19 A.3d 139 (mem.), is misplaced. In that case, this Court considered a statute directing that a landlord “shall” provide notice of a security deposit statement to former tenants “ ‘by hand-delivering or mailing the statement ... to the last known address of the tenant.’ ” Id. ¶ 10 (quoting 9 V.S.A. § 4461(d)). The statute also explained that if a landlord failed to return the security deposit with a statement within fourteen days, “‘the landlord forfeits the right to withhold any portion of the security deposit.’ ” Id. ¶ 17 (quoting 9 V.S.A. § 4461(e)). This Court held that the statute created a bright-line rule and that even if a tenant had actual notice, failure to comply with the notice provision resulted in forfeiture of the deposit. In so holding, this Court considered several factors. First, the statute had a consumer-protection purpose, and the focus was on prompt return of a deposit. Id. ¶¶ 15, 19. Second, the use of the word “shall” was *456mandatory language that obligated compliance by the landlord. Id. ¶ 16. Third, in contrast to this case, the statute contained a consequence for failure to comply. Id. ¶ 17. Finally, also unlike this situation, the interpretation was consistent with the rest of the statutory scheme. Id. ¶ 18.

¶ 37. The only similar factor is that the statutes in both cases employ the word “shall.” Unlike the statute in Soon Kwon, § 252 specifies no consequence for failure to provide a probation certificate. In addition, while the purpose of the statute in Soon Kwon was frustrated if strict compliance was not required, furthering the legislative purpose of requiring notice to probationers does not require that failure to provide a certificate makes the resulting conditions unenforceable. To the contrary, the majority’s argument frustrates the purpose of the statute. This is not a consumer-protection statute, like the one in Soon Kwon. As explained above, the certificate requirement is part of a statutory scheme that aims to both assist defendants and protect the public. Therefore, here, the statute must be read with the protection goal in mind.

¶ 38. In more analogous circumstances, in several criminal cases, we have held that failure to provide notice as required by rule or statute is harmless error if the defendant had actual notice and did not suffer any prejudice from the omission. See State v. Ingerson, 2004 VT 36, ¶¶ 4-5, 176 Vt. 428, 852 A.2d 567 (holding that court’s failure to read indictment in open court harmless error where defendant had actual notice of charges); State v. Davis, 165 Vt. 240, 251-52, 683 A.2d 1, 8 (1996) (concluding State’s failure to amend information harmless where defendant knew State sought life imprisonment). Similarly, reversal based on failure to provide a certificate should only be granted in cases where the defendant was prejudiced because he had no notice of the condition.

¶ 39. The majority proffers several reasons to support its interpretation of § 252(c), but none are persuasive. The majority first posits that because probationers must make any facial challenge to a condition prior to its violation, the probationer requires notice of the condition’s exact language. The majority states that without § 252(c)’s requirement that the defendant receive a certificate “defendant will lose the opportunity to challenge probation conditions because he or she will not know that they were imposed.” Ante, ¶ 15. Certainly, if a defendant does not have notice of a condition, he or she cannot challenge it, but *457it is also true that a condition cannot be enforced against a defendant without notice of the terms. State v. Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75 (2001) (mem.) (explaining that due process requires that defendant know prior to probation revocation proceeding what conduct is forbidden). Because enforcement depends on notice, there is no circumstance under which a defendant will be bound by a condition that was not noticed. While a certificate is a means to provide such notice, it is not the sole avenue for giving defendant notice. An error in failing to comply with the statute’s requirements is harmless if defendant received notice by some other means. Having received notice, he is in no lesser a position than an individual who received notice that complied with § 252(c).4

¶ 40. Moreover, strictly enforcing the § 252(c) certificate requirement does not ensure that the conditions provided therein will be unambiguous and clear, as asserted by the majority. Ante, ¶ 16. The majority cites State v. Blaise, 2012 VT 2, 191 Vt. 564, 38 A.3d 1167 (mem.), as an example of the type of confusion that may arise when conditions are not expressly certified in writing. In Blaise, a general condition requiring participation in counseling or training to the satisfaction of the probation officer was imposed. After the defendant was charged with violating conditions for failing to complete a particular program, he argued that the probation officer’s instruction to attend the program was communicated either ambiguously or not at all. Id. § 13. The trial court found otherwise, but even assuming there was uncertainty in Blaise, it would not be averted by the majority’s holding today. In Blaise, there was no question regarding whether the defendant received the required § 252(c) certificate; the issue was the meaning of the condition. Simply requiring conditions to be in writing and included in a certificate does not ensure that those *458conditions will be unambiguous and clearly stated. Conversely, even without a § 252(c) certificate, a condition can be plainly stated and understood by all parties, as the trial court here found.

¶ 41. Such was the situation in this case. While the majority claims that it wants to avoid perpetuating “a world in which it could take a divided vote of this Court to figure out the terms of probation,” ante, ¶ 19, there is no question here about the condition at issue. Defendant was prohibited from harassing or abusing his wife, who was victimized by defendant’s domestic violence. Defendant was so told in open court.

¶ 42. Finally, the majority’s concern about providing conditions in writing does not necessitate its holding. Receiving the certificate is not necessary to the purpose of providing a defendant the conditions in writing even if this were the purpose of the statute. Here, the condition was contained in writing. It was set forth explicitly and identically in the plea agreement and in the probation order. The majority notes that conditions in a plea agreement are not always adopted verbatim in the probation order, and therefore without a certificate there could be confusion over the exact terms of a condition. This may be true in some circumstances, but it is certainly not in this case. Here, the condition in the plea agreement matched identically to the condition imposed by the court in the plea agreement.

¶ 43. The purpose of § 252(c) is to ensure that defendants have notice of their probation conditions. Without an express indication from the Legislature that it intended the notice requirement of § 252(c) to act as a strict bar against enforcement of probation conditions, defendants who know their probation bars certain conduct should not be immunized from the consequences of violating those conditions. To allow defendant to escape responsibility for violation of conditions known to him, but not received in a formal certificate, elevates procedure over substance. See State v. White, 363 A.2d at 151 (“Sentencing should not be a game in which a wrong move by a judge means immunity for the prisoner.”). Further, it is at odds with the overall purpose of the probation statutes, which aim to rehabilitate defendants while providing protection to the public. Here, invalidating the probation violation based on the court’s failure to provide defendant a certificate harms foremost the victim of defendant’s crime. Such a result should not be reached lightly, especially where the language of the statute does not particularly provide for this consequence. I respectfully dissent.

*459¶ 44. I am authorized to state that Justice Burgess joins this dissent.

The majority claims that this case is an example of how confusion in the conditions that were imposed may arise without a certificate because some conditions were stated orally at the change-of-plea hearing, some were included in the plea agreement, and others were on the probation order. It may be that where a condition was included only in a plea agreement and not read at the change-of-plea hearing or only included in the probation order, there would be insufficient notice to defendant, but that is certainly not the ease here. The identical no-harassment-or-abuse condition was read at the change-of-plea hearing, included in the signed plea agreement, and written in the probation order. Based on these uncontested facts, the court properly found that defendant had notice of the condition.