State v. Amanda L. Stuart , 196 A.3d 306 ( 2018 )

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.
2018 VT 81
No. 2017-393
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Franklin Unit,
Criminal Division
Amanda L. Stuart June Term, 2018
Martin A. Maley, J.
James A. Hughes, Franklin County State’s Attorney, St. Albans, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. ROBINSON, J. Defendant Amanda Stuart appeals her probation revocation
arising from two probation violations. She argues, among other things, that the State presented
insufficient admissible evidence to support the violations upon which the revocation was based.
We agree and reverse the trial court’s revocation of her probation.1
¶ 2. In May 2016, defendant pled guilty to negligent operation of a vehicle and reckless
endangerment. The plea agreement called for concurrent one-to-twelve-month sentences,
suspended with probation, to run consecutively to a sentence defendant was already serving for a
1
Because defendant was serving the underlying sentence as a result of the revocation, we
issued an entry order reversing the violations immediately following oral argument on June 27,
2018. This opinion lays out the reasoning underlying our decision.
past infraction. This left defendant on a “dual status”—on furlough in connection with a previous
sentence and on probation for her new charges. Defendant’s probation conditions in connection
with the May 2016 conviction included conditions requiring that she not buy, have, or use any
regulated drugs unless prescribed by a doctor, complete the CRASH program, complete substance
abuse counseling, and actively participate in and complete the reparative probation program.
Contrary to the parties’ expectations at the time of the plea, defendant was not released after her
May 2016 plea, but, rather, remained incarcerated until November 2016 because she could not
meet a condition of her previous sentence that she secure housing.
¶ 3. On April 17, 2017, defendant was reincarcerated for violating the furlough
conditions in connection with her prior sentence after testing positive for benzodiazepines. In
August 2017, defendant’s probation officer filed a probation violation complaint in this case
alleging that defendant (1) violated the regulated-drugs condition by testing positive for
benzodiazepines on a urinalysis test, (2) “ha[d] not yet completed the CRASH program,”2
(3) “ha[d] not actively participated in or completed the Reparative Probation Program,” and
(4) was discharged from the Tapestry residential treatment facility in violation of the substance
abuse condition.
¶ 4. At the October 2017 hearing on the probation violation complaint, the State relied
exclusively on the testimony of defendant’s probation officer. With respect to the alleged
probation violation concerning regulated drugs, the probation officer testified that defendant had
tested positive for benzodiazepines. At the beginning of the hearing, defendant put the court on
notice that she would be calling a medical provider from the University of Vermont Medical Center
2
The probation condition required defendant to take the “next available” CRASH course.
However, the State did not allege a violation on the basis that defendant did not take the next
available course but instead based it on the State’s allegation that she had “not yet completed” the
course.
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to testify about prescribing defendant lorazepam for anxiety the day of the test that underlay the
probation violation complaint. In her testimony, the probation officer addressed defendant’s claim
that she was prescribed the medication, asserting that testing showed multiple different
benzodiazepine drugs in defendant’s system. When defendant objected to the hearsay testimony,
the court said “let’s move onto the other allegations . . . the [c]ourt may not need to rely upon that.”
When defendant objected to similar hearsay testimony on redirect of the probation officer, the
court said that it was “not going to make a finding on that.” The court informed defendant that she
need not call the medical provider she had planned to call.
¶ 5. Concerning the alleged violation relating to the CRASH program, the probation
officer testified that defendant had not enrolled in the CRASH program since the condition
requiring that she complete the program was imposed. The officer was not sure what was
happening for defendant between her May 2016 conviction and the time that the probation officer
assumed responsibility for the case in December 2016, but acknowledged that it appeared that
defendant had not spent much time in the community during that period. The probation officer
also acknowledged that defendant was reincarcerated or in an inpatient program in Brattleboro
beginning in April 2017. In particular, the officer testified that defendant was terminated from
living at Northern Lights because she broke the facility’s rules3 and was briefly reincarcerated
(apparently pursuant to her furlough in connection with her previous sentence) before she went to
the Tapestry program—another inpatient program—in Brattleboro.
¶ 6. With respect to the reparative board condition, the probation officer testified that
she saw no evidence in the file that defendant had participated in the reparative board program,
3
Citing State v. Decoteau, 2007 VT 94, ¶ 14, 182 Vt. 433, 940 A.2d 661, defendant
objected on hearsay grounds to the officer’s testimony that she was terminated from the Northern
Lights facility for violating the rules. After the probation officer stated that in her capacity as
probation officer for all the women in that facility, she is regularly notified whenever someone has
to leave, the trial court overruled the objection.
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but also acknowledged that she had not arranged for defendant to attend the program, did not see
anything in the file noting that defendant had been referred to the program, and did not remember
talking to defendant about participating in the program.
¶ 7. Finally, the probation officer testified about defendant’s requirement to complete
substance abuse counseling as a probation condition. The probation officer testified that once she
was released from jail in November 2016, defendant enrolled in the Maple Leaf residential
treatment program. After successfully completing Maple Leaf, defendant moved into Northern
Lights, a transitional-living facility for women that provided sober, supportive housing with
regularly administered urinalyses. While at Northern Lights, defendant participated in and
successfully completed “the Bridge” outpatient substance abuse program. During this time,
defendant volunteered, held a job, and consistently passed her urinalysis screenings. After
defendant was discharged from Northern Lights and briefly reincarcerated, she was referred to
Tapestry, an inpatient program in Brattleboro. The probation officer testified that defendant “did
not complete that program.” When defendant objected to the testimony on the same hearsay
grounds as her prior objections, the trial court asked the probation officer how she knew that
defendant did not complete the program. The probation officer said, “I was advised by Tapestry
that she was discharged.” Defendant again objected, stating that the testimony was unreliable
hearsay that the court should not consider. The court did not rule on the objection, but asked
defense counsel, “Anything else for this witness?”
¶ 8. At the conclusion of the hearing, the trial court ruled from the bench that “[d]uring
the period that she was on probation [defendant] failed to complete the CRASH program . . . to
the satisfact[ion] of the probation officer” and found that defendant had violated her probation
condition. The court also found that defendant did not complete her substance abuse counseling
because she was discharged from the Tapestry program and also because she did not complete the
“Northern Lights program.” After finding that defendant violated two probation conditions, the
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court revoked defendant’s probation and imposed the underlying sentence of one to twelve months
to serve, consecutive to the prior sentence she was still at that time serving.4
¶ 9. On appeal, defendant challenges the trial court’s finding that she violated the
substance abuse treatment requirement on three grounds: (1) the condition that she “complete
substance abuse counseling” did not provide fair notice that her failure to complete the Tapestry
program, after having successfully completed two substance abuse treatment programs, would
constitute a violation; (2) the trial court admitted hearsay evidence without conducting the required
analysis; and (3) the evidence was insufficient to support a violation for failing to complete
substance abuse counseling. She argues that the trial court erred in concluding that she had
violated the requirement that she complete the CRASH program when she still had many months
left in her probation term to complete the program. And, finally, defendant contends that the court
improperly revoked her probation upon finding two violations without exercising any discretion
as to the proper remedy for the violations.
¶ 10. In a probation revocation hearing, the State carries the burden of proving by a
preponderance of the evidence that the probationer has violated an express or clearly implied
probation condition. State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996). If the State
meets its 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.
Examining a probation violation involves a mixed question of law and fact. Id. First, the trial
court must make factual findings regarding the probationer’s actions and then make an “implicit
legal conclusion” regarding whether these actions constitute a probation violation. Id. (quotation
4
The trial court did not address the other two violations alleged in the State’s complaint.
We construe the court’s ruling as implicitly awarding judgment to defendant in connection with
the claimed violation of the conditions prohibiting her from using regulated substances and
requiring her to participate in the reparative board program. We note that the better practice is to
expressly rule on each of the respective claims made by the State unless the State voluntarily
withdraws them or the Court dismisses them.
5
omitted). Accordingly, facts that are “fairly and reasonably supported by any credible evidence
will stand,” and “[w]e will uphold the trial court’s legal conclusion if reasonably supported by”
those facts. Id.
¶ 11. We generally review evidentiary rulings for abuse of discretion. State v. Eldert,
2015 VT 87, ¶ 14, 199 Vt. 520, 125 A.3d 139 (“We review evidentiary rulings in both civil and
criminal trials for abuse of discretion.”). However, we review the trial court’s application of the
legal framework surrounding an evidentiary question without deference. State v. Bryant, 2008 VT
39, ¶ 9, 183 Vt. 355, 950 A.2d 467.
¶ 12. Applying these standards, we reverse the trial court’s determination that defendant
violated the substance abuse treatment condition for two reasons. First, the trial court failed to
apply the good cause test in considering whether to admit the hearsay testimony that was the sole
evidence supporting the claimed violation. Second, there was no evidence, nor did the court make
findings, that defendant failed to actively and successfully participate in the Tapestry treatment
program. We reverse the trial court’s determination that defendant violated the CRASH program
requirement because there was no evidence that she did not intend to comply with this requirement,
or that she had been put on notice that her immediate enrollment was required and she had ample
time remaining in her probation term to complete the course.
I. Substance Abuse Condition
¶ 13. We reverse the trial court’s determination that defendant violated the substance
abuse condition on two related grounds. First, the only evidence arguably supporting the violation
was inadmissible hearsay; second, the State’s evidence concerning defendant’s participation in the
Tapestry program was insufficient to support a violation.5
5
Our analysis focuses exclusively on the trial court’s determination that defendant violated
her substance abuse treatment condition by failing to complete the Tapestry program. To the extent
that the trial court found that defendant had failed to complete the “Northern Lights” program, the
finding is unsupported by the evidence. The probation officer testified that Northern Lights is not
6
A. Hearsay Evidence in Probation Violation Proceedings
¶ 14. In a probation revocation hearing, the rules of evidence do not apply and “hearsay
is not categorically inadmissible.” Eldert, 2015 VT 87, ¶ 16. However, to square the State’s ability
to present hearsay testimony with defendant’s due process rights under the Fourteenth Amendment
to confront adverse witnesses, the trial court must explicitly find “good cause” to admit the hearsay
evidence. Id.
¶ 15. In evaluating good cause, the trial court must balance “the probationer’s right to
confront a witness against the grounds asserted by the government for not requiring confrontation.”
Id. ¶ 18 (quotation omitted). There are at least two factors that should be evaluated in examining
the State’s side of the balance: the first is the State’s explanation of “why confrontation is
undesirable or impractical.” Id. (quotation omitted). For instance, the State might point to a danger
of physical harm to a live witness, or to the expense to the State to deliver a live witness, as factors
supporting a finding of good cause. Second, the reliability of the evidence offered by the State in
place of live testimony impacts the weight of the State’s side of the “good cause” balance. Id.
“Where the government demonstrates that the burden of producing live testimony would be
inordinate and offers in its place hearsay evidence that it is demonstrably reliable, it has made a
strong showing of good cause.” Id. (quotation omitted). Where the government shows neither
a substance abuse treatment program at all, but provides a supportive and sober transitional living
facility. She further testified that while living at Northern Lights defendant did successfully
complete the outpatient Bridges treatment program.
Defendant argues that the probation condition that she “complete substance abuse
counseling” provided insufficient notice that her failure to complete the third substance abuse
counseling program would be a violation, and that she never got notice that her completion of the
Tapestry program was a condition of probation, as opposed to a requirement incident to her
ongoing sentence on prior charges. It is well-established under our caselaw that a probationer is
entitled to fair notice of probation conditions to meet the due process requirement of the Fourteenth
Amendment. See, e.g., State v. Bostwick, 2014 VT 97, ¶ 17, 197 Vt. 345, 103 A.3d 476. Fair
notice requires that probation conditions are well-defined and transparent. Id. Because we reverse
defendant’s probation revocation on other grounds, we do not address this argument.
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that a live witness would impose inordinate burdens nor that the proffered hearsay bears indicia of
reliability, the probationer is entitled to confrontation. Id.
¶ 16. We have identified several important considerations bearing on the reliability of
hearsay testimony, including whether: (1) there is corroborative evidence; (2) the hearsay
statement is an objective fact rather than a conclusory statement; (3) the hearsay statement is
sufficiently detailed; (4) the source of the hearsay has a personal or adversarial relationship with
the defendant; and (5) the hearsay statement is offered to prove the central issue in the case. Id.
¶ 20; see also Decoteau, 2007 VT 94, ¶ 14 (reviewing cases identifying factors bearing on
reliability of hearsay testimony).
¶ 17. Here, the trial court did not apply the good cause balancing test when it admitted
the hearsay evidence during the probation revocation hearing. It made no findings on the record
at all to support its denial of defendant’s confrontation rights. Moreover, the evidence does not
support admission of the objected-to testimony.
¶ 18. First, the State neither provided an explanation as to why a live witness was
undesirable or impractical, nor suggested that the cost to produce the live witness was prohibitive.
And there is nothing in the record to support the notion that live testimony would place a significant
burden on the State.
¶ 19. Second, the trial court did not weigh the factors to identify traditional indicia of
reliability, and if it had, it would have recognized the probation officer’s testimony was
inadmissible. Although defendant’s discharge from the Tapestry program may be an objective
fact, as set forth below, the real issue in this case is the circumstances giving rise to this discharge.
The probation officer offered no testimony or details explaining the circumstances of defendant’s
discharge. To the extent that the trial court inferred from the objected-to testimony that defendant
did not comply with the program requirements because she was discharged, that inference—which
involves conclusions as well as objective facts—is unsupported by corroborating evidence or
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sufficient details to enhance the reliability of the conclusion. See Watker v. Vt. Parole Bd., 157
Vt. 72, 77, 596 A.2d 1277, 1280 (1991) (concluding that hearsay is reliable where specific
observations of various police officers include same details such as weather and where victim was
found); State v. Finch, 153 Vt. 216, 218, 569 A.2d 494, 495 (1989), overruled on other grounds
by Austin, 165 Vt. at 389, 685 A.2d at 1076 (concluding that hearsay testimony was reliable
because statements of two hearsay witnesses were mutually supportive). Moreover, the probation
officer did not identify the Tapestry employee who made the report by name or role in defendant’s
care, so the court had no basis for assessing that employee’s knowledge of defendant’s compliance
with the condition. And the officer’s testimony was the State’s only evidence to prove this case’s
central issue. See State v. Blaise, 2012 VT 2, ¶ 25, 191 Vt. 564, 38 A.3d 1167 (stating only
evidence of probation violation was hearsay evidence so it cannot uphold trial court’s conclusion
that defendant violated term of probation).
B. Sufficiency of the Evidence
¶ 20. Our assessment of the hearsay question is tied to our analysis of the sufficiency of
the evidence. The probation officer’s testimony that defendant did not complete the Tapestry
program, without more, is insufficient to support the violation. “When determining the merits of
a probation violation based on a probationer’s expulsion from a court-ordered treatment program,
the ultimate question for the court is whether the probationer participated satisfactorily in the
program.” State v. Coyle, 2005 VT 58, ¶ 9, 178 Vt. 580, 878 A.2d 1062. The court must look
beyond the fact of a probationer’s termination from a program to the reasons for that termination
because the court, not the treatment provider or probation officer, is the ultimate judge of whether
the defendant has violated a probation condition. State v. Masse, 164 Vt. 630, 631-32, 674 A.2d
1253, 1255-56 (1995) (rejecting argument that this Court reviews probation officer’s conclusion
that probationer has not satisfactorily completed program for abuse of discretion and explaining
that trial court is ultimate arbiter of whether defendant violated condition); see also State v. Cavett,
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2015 VT 91, ¶ 3, 199 Vt. 546, 126 A.3d 1287 (holding that court must find substantive ground for
revocation and accordingly must assess basis for defendant’s termination from program to
determine whether it amounted to violation of probation).
¶ 21. In this case, there is no evidence from which the trial court could conclude that
defendant failed to adequately participate in her treatment; there is no evidence at all to support
any conclusion about the reason for her termination from the Tapestry program.
II. CRASH Program Condition
¶ 22. Defendant’s failure to complete the CRASH program at the time of the State’s
violation complaint, by itself, was not a violation of probation. The probation violation complaint
alleges that defendant violated her probation condition because she “ha[d] not yet completed the
CRASH program.” In finding a violation, the trial court failed to take into account that significant
time remained in defendant’s probationary sentence; in fact, the consecutive one-to-twelve-month
sentence for the charges underlying the probation in this case did not actually begin to run until
defendant completed her sentence for a previous charge—several months after the probation
violation hearing. By itself, the failure to complete a requirement when ample time remains in a
probationer’s term to do so is not a probation violation. See Blaise, 2012 VT 2, ¶¶ 21-25 (holding
that trial court erred when it decided defendant violated probation conditions requiring that he pay
fine and perform community service where there was no evidence that defendant had been
provided payment schedule for fine or performance schedule for community service, and
defendant had substantial time remaining in his probation term).
¶ 23. We have recognized that a defendant may be found to have violated 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. See, e.g., In re J.S., 2018 VT 49, ¶ 16 n.5, __ Vt. __, __ A.3d __
(explaining that “once a probationer refuses to comply with a condition, the fact that time remains
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in which [the probationer] could complete the condition is not relevant to whether the court can
find a violation”); State v. Provost, 2014 VT 86A, ¶¶ 15-16, 199 Vt. 568, 133 A.3d 826 (rejecting
on plain error review argument that defendant did not violate requirement that he complete
domestic violence program because he had adequate time to complete it where his probation officer
informed him that if he did not complete his third scheduled intake for program he would be cited
for violating probation, and he failed to complete intake due to his own actions). There is no
evidence of any refusal by defendant here. She was incarcerated or committed to inpatient
treatment for much of the period between the imposition of the probation condition in May 2016
and the violation complaint in August 2017. There is no evidence that during the several months
she was in the community she declined to enroll in the program, or that this exception is otherwise
applicable.
¶ 24. For the above reasons, we reverse the trial court’s determinations that defendant
violated two probation conditions, and the resultant revocation of her probation.6
Reversed.
FOR THE COURT:
Associate Justice
6
Because we strike down the two violations upon which defendant’s probation revocation
was based, we need not decide whether the trial court exceeded its discretion in revoking probation
on the basis of those violations. We note, though, that revocation does not automatically follow
from a court’s conclusion that a probationer has violated probation conditions. The Legislature
has made it clear that revocation of probation is a discretionary ruling, and has identified a host of
alternative sanctions the court may impose upon violation of probation. 28 V.S.A. § 304.
Moreover, before ordering revocation and confinement, the court must find based on a defendant’s
original offense and intervening conduct that confinement is necessary to protect the community,
the probationer is in need of treatment that can most effectively be provided if the probationer is
confined, or that it would unduly depreciate the seriousness of the violation if probation were not
revoked. 28 V.S.A. § 303(b). The trial court in this case made no findings that indicate it
conducted such an assessment.
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