State v. Bostwick

• Decision Date: 01 August 2014
• Docket Number: No. 2013-013,2013-013
• Citation: 2014 VT 97
• Court: Washington Supreme Court
• Parties: State of Vermont v. Patrick Bostwick

2014 VT 97

State of Vermont v. Patrick Bostwick

No. 2013-013

Supreme Court On Appeal from Superior Court, Washington Unit, Criminal Division

May Term, 2014

August 1, 2014

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@state.vt.us 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.

Thomas A. Zonay, J.

William H. Sorrell, Attorney General, and David McLean, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

¶ 1. DOOLEY, J. Defendant appeals from a court order finding him in violation of his conditions of probation. We hold that his conduct was not inconsistent with the plain language of his probation conditions, and reverse.

¶ 2. Defendant was convicted of lewd and lascivious conduct with a child, 13 V.S.A. § 2602, and sentenced to three to fifteen years, all suspended but six months. Defendant's probation order contained the following "special sex offender conditions": "You will not live in an apartment complex that allows children, in neighborhoods with large numbers of children, or in neighborhoods near parks, schools, playgrounds, etc, unless directed otherwise by your Supervising Officer"; and "You shall reside where your Supervising Officer directs. You shall not change your residence without the prior written permission of your Supervising Officer."

¶ 3. While defendant was still incarcerated, the State filed a probation violation complaint, claiming that defendant had violated the condition stating: "You shall reside where your Supervising Officer directs." The State claimed that defendant had violated this condition because he did not submit a residence for his probation officer's approval prior to his release and therefore he would be homeless upon his release. The court dismissed the complaint for "impossibility of performance." During the hearing, the court explained:

I'll dismiss it without prejudice . . . the sense being that they can renew it if after a reasonable time, [defendant] shows no effort, for example, to get housing in an appropriate place, . . . or can't get it because of some fault on his part, then certainly they're free to refile it if they think they can make out a prima facie showing of a violation based on not living where he's supposed to live. . . . I don't think that this is a violation because he hasn't had an opportunity to try to find a place.¹

¶ 4. Defendant was subsequently released and, with approval from his probation officer, resided at a few temporary addresses in succession. In early July 2012, defendant moved to the Budget Inn in Barre, another location that his probation officer had approved as only temporary because it was "near children." The probation officer told defendant he needed to look for housing "daily." The probation officer also told defendant that "he had 8/1/2012 as a deadline to show housing search efforts—a genuine housing search effort."

¶ 5. Defendant received a list of available apartments from Community Action, supplemented by listings his wife found for him. Defendant's income was limited to a Social Security disability check of $720 per month. Defendant could not use the internet to look for apartments directly because a condition of his release as a sex offender prevented him from having access to the internet. Defendant was on a twenty-four hour curfew, other than visiting prospective apartments and a weekly trip for groceries. He kept a log of calls he made to prospective landlords. As required, defendant announced to every person he called that he was on probation for lewd and lascivious conduct with a child.

¶ 6. Defendant's log indicates that he made calls or had his wife email approximately seventy times looking for housing between June 12 and August 6, 2012. He testified that his inquiries were denied for a variety of reasons, including that the buildings had no vacancies, that the landlords did not want to rent to a convicted sex offender, or the apartments were too expensive. On July 23, 2012, he found one apartment that he might have rented, but his probation officer did not approve it for him because it was too close to a school.

¶ 7. In its decision revoking defendant's probation, the trial court noted that defendant's call log "shows between June 26th and July 20th—except for a single telephone call made on July 10th—the Defendant did not make any housing search. He also made no search from July 28th through August 3, 2012. As of August 1, 2012, the Defendant had not obtained approved housing."

¶ 8. As the trial court noted, the State must show a probation violation by a preponderance of the evidence, and defendant must have received fair notice of the condition he allegedly violated. State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990). The trial court further noted that, after the initial proof of violation, the burden shifts to the defendant to show that the "failure to comply was not willful but rather resulted from factors beyond his control and through no fault of his own." State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996).

¶ 9. In its analysis, the court found that defendant "certainly should have known that abandoning his efforts to find housing for several days . . . was not in compliance with his obligations under the terms of his probation." The court determined that finding an approved residence was "an important component of the defendant's sex offender treatment, as well as necessary for public protection." Further, "defendant's failure to have approved housing, after being afforded a meaningful opportunity to do so following his release from incarceration, undermines the probationary goal of protecting society from the defendant." The court concluded that defendant had violated two terms of his probation. First, he violated the condition stating: "You shall reside where your Supervising Officer directs. You shall not change your residence without the prior written permission of your Supervising Officer." Next, because the Budget Inn was close to children, he also violated the condition stating that: "You will not live in an apartment complex that allows children, in neighborhoods with large numbers of children, or in neighborhoods near parks, schools, playgrounds, etc, unless directed otherwise by your Supervising Officer."

¶ 10. Defendant argues that the requirements that he make housing search calls every day and find housing by a certain date were not part of his court-ordered probation conditions. Therefore, defendant claims that his probation officer lacked authority to impose those requirements on him and that defendant had no notice of the consequences of failing to fulfill those requirements. Defendant also argues that the condition that he not live in "a neighborhood near parks, schools, playground, etc" is overbroad and delegates too much authority to his probation officer. Defendant further argues that he had no meaningful opportunity to find housing, that it was in fact impossible for him to find housing, and that his failure to find housing was not willful. Lastly, defendant argues that his probation should not have been revoked because there was no evidence that his lack of housing interfered with the ability of the Department of Corrections (DOC) to supervise him or endangered the public, and that revoking his probation over this issue was tantamount to punishing him for being poor. Because we agree with defendant that he did not violate any of his court-ordered conditions of release, we do not reach the remainder of his arguments.

¶ 11. We review the trial court's determination that defendant violated his probation in two steps. First, we examine the trial court's factual findings and uphold them "if supported by credible evidence." State v. Sanville, 2011 VT 34, ¶ 7, 189 Vt. 626, 22 A.3d 450 (mem.). Second, we examine the trial court's "implicit legal conclusion that the probationer's actions violated his probationary terms." Id. We uphold that legal conclusion if it is "reasonably supported by the findings and does not constitute an erroneous interpretation of the law." Id. The trial court's factual findings here are undisputed, so we analyze only the court's legal conclusions.

¶ 12. The trial court here found violations of two probation conditions. We conclude that neither violation was justified by the language of the probation condition at issue. To the contrary, "the probation officer crossed the line between condition interpretation and modification" in imposing the new requirements regarding the rate of call frequency and the deadline by which defendant needed to find housing or be found in violation. State v. Rivers, 2005 VT 65, ¶ 19, 178 Vt. 180, 878 A.2d 1070.

¶ 13. In Rivers, the defendant had a probation condition which prohibited him from having contact with children under the age of sixteen without prior written approval from his probation officer. The trial court found the defendant to be in violation of that condition because he went to the Champlain Valley Fair and stood near children in the lines for rides. There was no evidence that the defendant touched, spoke to, or stalked any children. The defendant had previously been warned by his probation officer "that attendance at the fair would place him in contact with children, and that he could not have that contact unless he was supervised by an approved adult." Id. ¶ 14. The trial court accepted the probation officer's warning to the defendant as fair notice that going to the fair would violate the...