State v. Darryl M. Galloway ( 2020 )

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 29No. 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
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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.
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¶ 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
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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.
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¶ 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
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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
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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
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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
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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.
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¶ 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
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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,
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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
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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.
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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
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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
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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.
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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
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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
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