State v. Benjamin

• Decision Date: 22 June 2007
• Docket Number: No. 2005-181.,2005-181.
• Citation: 2007 VT 52,929 A.2d 1276
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Mark BENJAMIN.

929 A.2d 1276

2007 VT 52

STATE of Vermont v. Mark BENJAMIN.

No. 2005-181.

Supreme Court of Vermont.

June 22, 2007.

Howard E. Van Benthuysen, J.

Christopher C. Moll, Lamoille County Deputy State's Attorney, Hyde Park, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

REIBER, C.J.

¶ 1. Defendant Mark Benjamin appeals from the district court's finding that he was in violation of probation (VOP). Defendant asserts that the VOP complaint should have been dismissed because he was denied his right to a hearing within a reasonable time. The State contends, in opposition, that any delay in the hearing was due largely to defendant's own actions and that no prejudice resulted from the delay. We affirm.

¶ 2. The pertinent facts are uncontested. Defendant pled guilty on July 13, 2004, to one count of lewd and lascivious conduct with a minor, and one count of sexual assault on a minor.¹ He was sentenced, on the first charge, to one to five years, all suspended but sixty days. On the second, he was sentenced to three to twelve years, all suspended but sixty days on a pre-approved furlough work crew. The two sentences were concurrent, and defendant was placed on probation with standard conditions. On August 20, 2004, defendant's probation officer filed a VOP complaint alleging that defendant had violated his probation conditions by using regulated drugs and alcohol. On the same day, defendant was arraigned on six new charges: one count of sexual assault on a minor under sixteen, 13 V.S.A. § 3252(a)(3); three counts of delivering regulated drugs to minors, 18 V.S.A. § 4237(a); and two counts of furnishing alcohol to a minor, 7 V.S.A. § 658. Defendant entered a plea of not guilty, and bail was set at $50,000. A preliminary probable-cause hearing on the VOP charge was also held on August 20, and probable cause was found for the VOP. Unable to make bail on the six new charges, defendant was taken into custody the same day.

¶ 3. Defendant was assigned counsel on August 24, 2004, and a merits hearing on the VOP complaint was scheduled for September 20, 2004. The court also set September 20 as the date for a status conference on the criminal charges. Defendant's counsel withdrew on August 31, and new counsel was assigned that day. Defendant then moved, on September 17, 2004, to continue the September 20 hearing. The motion was granted, and the hearing was set for October 18, 2004. On October 13, 2004, defendant filed a motion to suppress certain statements he had made to police officers, with respect to both the VOP and the other charges.

¶ 4. The first hearing on the VOP complaint was held on October 18, 2004. The State called defendant's probation officer to testify, and the time allotted for the hearing was sufficient for the State to conclude its direct examination but insufficient for defendant to complete cross-examination. Also on that day, five new charges were filed arising from defendant's conduct on August 20. Bail on those charges was set at $25,000, and defendant, already incarcerated for failure to make bail on the August 20 charges, did not meet the additional bail. The October 18 hearing was continued to November 22, 2004, to take further evidence.

¶ 5. At the November 22 hearing, which lasted less than an hour, defendant moved to merge consideration of the motion to suppress with the VOP hearing. That motion was granted. Defendant then completed the cross-examination of the probation officer begun at the October 18 hearing, after which the State conducted direct examination of one of the police officers who executed the search warrant on defendant's home. The time allotted for the hearing did not suffice for the State to complete direct examination. At the close of the hearing, counsel for defendant asked the court if it would reschedule the upcoming hearing on the suppression motion to coincide with the next hearing on the VOP. The court agreed, and a hearing was scheduled for November 29.

¶ 6. At the November 29 hearing, which lasted about forty minutes, defendant asserted that the scheduling had created problems with out-of-state witnesses—in particular defendant's mother, who feared losing her job if she had to miss work for other hearings—and was diminishing his ability to cross-examine witnesses effectively. Citing these difficulties, defendant moved to dismiss the VOP complaint. The motion was denied. After the denial, the State concluded direct examination of the police officer, and defendant began to cross-examine her. During both the State's and defendant's examination of the officer, counsel for both parties discussed with the court the difficulties inherent in examining the officer without a resolution of the motion to suppress. At the close of the November 29 hearing, the court noted that, when it came time to focus more closely on the statements subject to the motion to suppress, the officer would be called upon to testify again.

¶ 7. Additional hearings were held, including a half-day on March 23 and a shorter hearing on March 29, 2005. On March 23, four witnesses testified. The first was a minor who was present when defendant furnished drugs to other minors and who assisted police in recording a telephone call in which she discussed drugs with defendant. The defense had a full opportunity to cross-examine her and did so. The second witness was a friend of defendant. He testified and was subject to cross-examination, redirect, and recross. Third to testify on March 23 was the police officer who had previously testified on November 29. Finally, the court took testimony from another officer who was present at the time the warrant was executed. That officer was subject to direct and cross-examination. Four more witnesses, including defendant, testified at the shorter March 29 hearing.

¶ 8. The district court then issued an order on April 21, 2005, finding that defendant had violated his probation conditions. Probation was revoked on June 6, 2005, and the underlying sentences on the sexual-assault and lewd-and-lascivious-conduct charges were imposed, with credit for time served, after a sentencing hearing. Defendant appealed.

¶ 9. We first review the rules and statutes governing VOP hearings in Vermont. Rule 32.1 of the Vermont Rules of Criminal Procedure and §§ 301-305 of Title 28 govern the modification and revocation of probation. Under Rule 32.1, two hearings must be held. First, a probationer is entitled to a "prompt" preliminary hearing to determine whether there is probable cause to detain him or her pending a merits hearing. V.R.Cr.P. 32.1(a)(1). Second, the merits hearing, referred to in the statute as the "revocation hearing," must be held "within a reasonable time." V.R.Cr.P. 32.1(a)(2). The Vermont rules mirror the Federal Rules of Criminal Procedure in both respects. See F.R.Cr.P. 32.1(b)(1), (2) (preliminary hearing must be held "promptly"; revocation hearing must be held within "a reasonable time"). Both the Vermont and federal rules dictate certain procedural requirements for the preliminary and final hearings, but those requirements are not implicated in the instant case; defendant contests only the timing of his revocation hearing. The United States Supreme Court has held that the timing and nature of both hearings is mandated by the Sixth Amendment to the United States Constitution.² Vermont's rule was promulgated to comply with the constitutional mandates announced in those cases. Reporter's Notes, V.R.Cr.P. 32.1.

¶ 10. First, in Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), a parole-revocation case, the Court ruled that a preliminary, informal hearing was required "as promptly as convenient" after arrest while information is fresh and sources are available to determine whether there is probable cause for a violation of parole. The Court further ruled that the Constitution requires another more formal hearing prior to parole revocation; that hearing, the Court noted, "must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation." Id. at 488, 92 S.Ct. 2593. That final hearing "must be tendered within a reasonable time after the parolee is taken into custody." Id. While the Court declined to announce a bright-line rule for reasonableness, it noted that two months, the lapse at issue in Morrissey, "would not appear to be unreasonable." Id.

¶ 11. The following year, in Gagnon v. Scarpelli, the Court applied Morrissey's logic to a revocation of probation, and held that "a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey." Gagnon, 411 U.S. at 782, 93 S.Ct. 1756. The Court noted that, although there are "minor differences" between probation and parole, the revocation of the former is "constitutionally indistinguishable" from revocation of the latter. Id. at 782 n. 3, 93 S.Ct. 1756. This logic also holds true under the applicable Vermont statutes.

¶ 12. In Vermont, both probation and parole are statutorily defined. Parole is "the release of an inmate to the community by the parole board before the end of the inmate's sentence subject to conditions imposed by the board and subject to the supervision and control of the commissioner." 28 V.S.A. § 402(1). Probation is "a procedure under which a respondent, found guilty of a crime upon verdict or plea, is released by the court, without confinement, subject to conditions imposed by the court and subject to the supervision of the commissioner." 28 V.S.A. § 201. Although there are differences between probation and parole in Vermont, State v. Bensh, 168 Vt. 607, 607-08, 719 A.2d 1155, 1156 (1998) (mem.), as there are in the federal system, we agree with the Gagnon Court that the differences do not require any distinction...