State v. Burnett, 2021-031

Docket Nº2021-031
Citation2022 VT 30
Case DateJuly 01, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 30

State of Vermont

Austin R. Burnett

No. 2021-031

Supreme Court of Vermont

July 1, 2022

On Appeal from Superior Court, Addison Unit, Criminal Division Thomas Carlson, J.

Kim McManus, Addison County Deputy State's Attorney, Middlebury, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Manley, Supr. J. (Ret.), Specially Assigned


¶ 1. Defendant appeals the criminal division's order revoking his probation. We affirm the court's determination that defendant violated probation conditions prohibiting him from possessing or using a device with access to the internet or having a socialmedia account and from possessing or using pornography. However, we reverse the court's determination that defendant violated a condition governing where he could reside and remand for the court to reconsider its disposition without that violation.

I. Factual Background

¶ 2. In 2016, as part of a global agreement resolving charges in three separate dockets, defendant pled guilty to one count of sexual assault on a child under sixteen years old, one count of sexual assault of an adult without consent, and one count of disseminating indecent material to


a minor. Defendant agreed to a set of probation conditions that included the following special sexoffender conditions:

You may not purchase, possess, or use pornography or erotica
You may not own, possess, use, or have access to a videographic or photographic device, to include but not be limited to cameras or cellular telephones with photographic or videographic capabilities, without prior permission of your Probation Officer or therapist.
You may not own, possess, or have access to a computer or other devices [] that have access to the internet, unless approved, in advance, by your Probation Officer or therapist. You may not have or maintain a social media account, such as Facebook, Instagram, Kik, Snapchat, etc. of any kind unless approved, in advance, by your Probation Officer or designee in writing.

Consistent with the plea agreement, defendant received concurrent sentences of four to six years, all suspended except for thirty-eight months, on the first count; five years, deferred, on the second count; and three to six months on the third count. The Department of Corrections determined defendant to be a high-risk sex offender, and he began participating in the Vermont Treatment Program for Sexual Abusers (VTPSA) while he was incarcerated.

¶ 3. In July 2017, defendant admitted to violating the VTPSA rules by writing letters to an intern working with the VTPSA, and the parties agreed to extend the unsuspended portion of defendant's sentence by three months to allow him to complete the program.

¶ 4. In December 2017, defendant received a major disciplinary report for attempting to pick the lock of his cell door. He was removed from the VTPSA and a violation-of-probation (VOP) charge was filed. The trial court found that defendant had violated a condition requiring him to fully participate in the VTPSA during the course of his unsuspended sentence. Defendant appealed, and we reversed in a decision issued on March 20, 2020. State v. Burnett, 2020 VT 28, ¶ 23, 212 Vt. 80, 231 A.3d 163. Because he had served the unsuspended portion of his sentence,


defendant was released from prison on probation on March 25, 2020. He did not complete sexoffender treatment programming prior to his release.

¶ 5. The day after his release, defendant met with his probation officer and reviewed and signed his probation order, including the special sex-offender conditions listed above. The probation officer subsequently gave defendant permission to access the internet to apply for jobs using defendant's girlfriend's device. Later in June, the probation officer permitted defendant to have an antiquated flip phone that had a camera and internet capabilities under the condition that defendant refrain from using those functions. At no point did the probation officer permit defendant to have a smartphone or to access the internet for purposes other than searching for work.

¶ 6. Within days after defendant's release from prison, defendant called the probation officer, distraught, stating that his mother wanted him to leave her home and that he was going to turn himself back in to jail. The probation officer spoke to defendant's mother, who reported that defendant had used a smartphone to send a nude photograph of himself to his sister-in-law. The sister-in-law showed defendant's mother the picture, and defendant's mother ordered defendant to leave her home. Defendant admitted to the officer that he had used the internet and had sent a picture of his genitals to three adult women. As a result of this incident, the probation officer filed a VOP complaint in April 2020 alleging that defendant had violated the conditions prohibiting him from possessing or using a phone with a camera or an internet-capable device and the condition prohibiting him from possessing pornography. The probation officer reminded defendant that he was prohibited from accessing the internet.

¶ 7. A few months later, defendant's mother called the probation officer because she was attempting to contact defendant and he had blocked her number, suggesting that he was using a cellular phone. At that point the probation officer had not yet approved a cellular phone for defendant. Defendant eventually admitted to the probation officer that he had been using a


smartphone that was connected to the internet. This caused the probation officer to file an amended VOP complaint in June 2020, which alleged that defendant had continued to use a cellular phone to access the internet without approval after the April complaint was filed.

¶ 8. A few months later, the probation officer was contacted by defendant's exgirlfriend, who was concerned that defendant had a Facebook account and might be trying to contact her minor daughter. The probation officer searched for defendant's account and found that it contained pictures of defendant that appeared to have been posted after he was released from prison. Defendant allowed the probation officer to search his apartment, and the probation officer observed that defendant had two smartphones, two laptops, and a PlayStation gaming console. Defendant told the probation officer that he had found these items at the transfer station. He refused to allow the probation officer to search the devices. However, he admitted to the probation officer that he had a Facebook account and a smartphone, and that he had been using the PlayStation to play games on the internet. As a result, the probation officer filed a third VOP complaint alleging that defendant had violated his conditions by using the internet and social media.

¶ 9. Defendant moved to dismiss the VOP charges on the grounds that the court did not hold a timely merits hearing, the complaint failed to allege that he had not made progress in rehabilitation, and the internet-access restriction was not reasonably related to his offenses. The court denied the motion. Defendant then filed a motion requesting home detention and another motion to dismiss arguing that the court lacked jurisdiction over him. The court denied both motions at the merits hearing.

¶ 10. Defendant admitted at the merits hearing that he did not have permission from the probation officer to have a smartphone but had possessed one before and after obtaining his flip phone. He also conceded that he had a PlayStation that he used to play games on the internet. He denied that he had an active Facebook account.


¶ 11. In a written decision entered after the hearing, the court determined that defendant had violated the probation conditions prohibiting him from possessing or using pornography, possessing or accessing a camera or smartphone, and possessing or using devices with access to the internet or having a social-media account, as well as a fourth condition prohibiting him from residing where he would have access to computers or other devices with access to the internet. It subsequently sentenced defendant to serve three years to life with credit for time served. This appeal followed.

II. Analysis

¶ 12. "A court may revoke probation only after the State has established an alleged violation by a preponderance of the evidence." State v. Millard, 149 Vt. 384, 385, 543 A.2d 700, 701 (1988); 28 V.S.A. § 302(a)(4). The State must demonstrate "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) (quotation and emphases omitted). If this burden is satisfied, the burden then shifts to the defendant to show "that his failure to comply was not willful but rather resulted from factors beyond his control and through no fault of his own." Id. (quotation omitted).

¶ 13. In determining whether a probationer has violated his conditions, the trial court "must first make a factual determination of the probationer's actions, and then make an implicit legal conclusion that the probationer's actions violated his probationary terms." State v. Woolbert, 2007 VT 26, ¶ 8, 181 Vt. 619, 926 A.2d 626 (mem.). We will affirm the trial court's factual findings if supported by the evidence and will uphold its legal conclusions if they are "reasonably supported by the findings and do[] not constitute an erroneous interpretation of the law." State v. Bostwick, 2014 VT 97, ¶ 11, 197 Vt. 345, 103 A.3d 476.

¶ 14. On appeal, defendant argues that his probation conditions did not ban him from using the internet, that the probation officer misinterpreted the...

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