State v. Allen

• Decision Date: 03 May 1985
• Docket Number: No. 84-047,84-047
• Citation: 496 A.2d 168,145 Vt. 593
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Bryant J. ALLEN.

Page 168

496 A.2d 168

145 Vt. 593

STATE of Vermont v. Bryant J. ALLEN.

No. 84-047.

Supreme Court of Vermont.

May 3, 1985.

Robert Andres, Chittenden County Deputy State's Atty., Burlington, for plaintiff-appellee.

Nancy E. Kaufman, Montpelier, and Charles S. Martin, Barre, for defendant-appellant.

Before ALLEN, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

Appellant challenges the rulings of the district court, holding him in violation of two conditions of probation (assaultive behavior; purchase, possession or consumption of alcohol), and also summarily finding him to be in criminal contempt of court. We affirm.

Two police officers responded to a neighbor's telephone call regarding a disturbance at a Burlington apartment. Arriving, they saw through the open door that the kitchen area was in chaos, with broken furniture, broken dishes and food strewn all over. (Witnesses later testified that appellant had not caused the damage.) They also saw a woman, whom they recognized as Janet Savage, crying while appellant stood over her.

When the officers asked Ms. Savage what was going on, appellant shook his fist at her and threatened that he would "get her" if she spoke. Although the apartment was not his, appellant also threatened the police if they would not leave.

As the police officers began to escort Ms. Savage from the apartment to the Battered Women's Shelter, appellant grabbed an officer and shoved him aside. The officers then arrested appellant. In doing so, they detected a strong odor of alcohol on his breath; later, they noticed that his speech was slurred.

Appellant admitted at the probation revocation hearing (during which he was twice warned for causing disruptions) that he "got violent" that night. Appellant defended his behavior as justified because police had entered without a warrant and threatened to kill him. Although appellant denied it, Ms. Savage testified that she and appellant had been drinking that night.

Appellant's probation officer testified that appellant not only had a severe alcohol problem, but also that he had seventy criminal convictions and that prior experience made it unlikely appellant would abide by probation conditions. The probation officer concluded, "Mr. Allen is not probation material."

At the close of testimony, the court announced that it found violations of two express conditions of appellant's probation warrant: Condition 9 (assaultive behavior), and Condition 10A (purchase, possession or consumption of alcohol). The court revoked probation and imposed the underlying sentences, concluding, "You have got a severe alcohol problem. Probation can't help you...."

After appellant's attorney and the court began to discuss calculation of credit for time already served, the following exchange took place:

THE COURT: Whatever he is entitled to credit for, he will get it. Okay.

DEFENDANT: Two years? Is that what you're telling me? Two years?

THE COURT: Go. Go.

At this point, appellant directed a grossly obscene remark at the court, whereupon the court stated:

THE COURT: We'll certify that the defendant has just conducted himself in contempt of court; swearing at the court in the presence of an open courtroom. We would add additional 90 days to the sentence.

I.

A.

Appellant presents three challenges to the probation violation. First, he contends that, under Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), federal due process standards require a court to issue written findings of fact to support a probation revocation. Only in this way, he contends, can appellate review be secured.

Interests shared by the probationer and the State "in the accurate finding of fact and the informed use of discretion," Gagnon, supra, 411 U.S. at 785, 93 S.Ct. at 1761, led the United States Supreme Court to impose in probation revocation hearings the "minimum requirements of due process," id. at 786, 93 S.Ct. at 1761, that it had earlier applied to parole revocations in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). However, the Court in Morrissey had "no thought to create an inflexible structure," id. at 490, 92 S.Ct. at 2604, acknowledging, "[w]e cannot write a code of procedure; that is the responsibility of each State." Id. at 488, 92 S.Ct. at 2604.

Since Gagnon v. Scarpelli, a number of state and federal courts have held that, where the record and transcript enable the reviewing court to determine the basis for the revocation decision, no written findings are required. E.g., Morishita v. Morris, 702 F.2d 207, 209-10 (10th Cir.1983); United States v. Rilliet, 595 F.2d 1138, 1140 (9th Cir.1979); Rheuport v. State, 238 N.W.2d 770, 775 (Iowa 1976); State v. Harris, 368 So.2d 1066, 1073 (La.1979); Pearson v. State, 308 Minn. 287, 292, 241 N.W.2d 490, 493-94 (1976). However, at least one federal circuit agrees with appellant. See United States v. Lacey, 648 F.2d 441, 445 (5th Cir.1981) (due process requires written statement of evidence relied on and reasons for revocation).

Section 302 of Title 28, V.S.A., does not require written findings, although it does require that a record of proceedings be kept so that it may be transcribed. A transcript was prepared and provided to this Court in this case.

Vermont's procedure comports with due process. Oral findings, when transcribed, are the equivalent of written findings and can expedite the process of decision-making. This approach benefits the litigants, who receive a prompt decision, and allows the court to render its decision when the evidence is fresh in mind. Vermont has recognized the value of issuing oral findings, where appropriate, by incorporating the procedure into its rules. V.R.Cr.P. 47(c); V.R.C.P. 52(a).

The fact that findings are oral and transcribed, rather than prepared and typed subsequent to the hearing, does not alter the legal standard of appellate review. In either case, if the findings are deficient, a case may be remanded to the trial court for correction.

The record before us is adequate for purposes of review. The transcript allows us to determine whether there was a factual basis for the court's oral findings and revocation of probation. We hold that a probationer's due process rights are adequately protected when a court states its essential findings on the record.

B.

Appellant next claims that state law, 28 V.S.A. § 303(b), requires that a court make one of three findings before it may revoke probation:

(1) Confinement is necessary to protect the community from further criminal activity by the probationer; or

(2) The probationer is in need of correctional treatment which can most effectively be provided if he is confined; or

(3) It would unduly depreciate the seriousness of the violation if probation were not revoked.

The court's finding that appellant has a severe alcohol problem and that probation could not help him was in all practical respects a finding that he was in need of correctional treatment which could best be provided by incarceration. While it is preferable for the court to express its conclusions in language readily identifiable as one of the alternatives set forth in 28 V.S.A. § 303(b), in this case the court's conclusion does satisfy § 303(b)(2) and is amply supported by the evidence.

C.

Appellant also argues that probation could not lawfully be revoked for violation of Condition 10A.

The initial probation warrant imposed both Condition 10A, prohibiting the purchase, possession or consumption of alcohol, and Condition 10B, which states, "You shall not use alcoholic beverages to the extent it interferes with your employment or the welfare of your family, yourself or any other person." After appellant and his probation officer disputed the interaction of the two concurrent conditions, the probation officer asked the court, by letter, with a cover copy to defendant's counsel, for clarification of the probation conditions. The court replied that Condition 10A was to be enforced.

Appellant contends "[t]here is no indication in the record that the probation officer ever advised the defendant as to the change in conditions, much less that the defendant had ever been afforded an opportunity to contest the modification."

We do not agree that appellant's probation conditions were "changed." The probation officer, with notice to appellant's counsel, sought and obtained a clarification of the validity of Condition 10A. Neither appellant nor his counsel submitted a response to aid the court's interpretation of its own order, or an objection after the court did so. At all times, appellant was under notice that his probation was conditioned upon compliance with Condition 10A. Whether or not Condition 10B was operable or rescinded, Condition 10A always remained in force; it had been properly imposed and was never stricken. Appellant violated the express terms of Condition 10A at his peril.

Moreover, the record and transcript indicate that appellant's claimed lack of notice was not raised in the court below. Inasmuch as the claim does not rise to the level of plain error, we reject it. State v. Turner, 145 Vt. 399, 403, 491 A.2d 338, 340 (1985).

II.

Appellant also challenges the court's summary punishment, under V.R.Cr.P. 42(a), of ninety-days' incarceration for criminal contempt of court.

V.R.Cr.P. 42(a) provides:

Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record. ¹

As the Reporter's Notes explain, V.R.Cr.P. 42(a) is procedural; the substantive legal standards for summary contempt are set by common law and statute. In Vermont, criminal contempt is an act "committed directly against the authority of the court, tending to impede or interrupt its...