State v. Burnett, 2018-240

Citation2020 VT 28
Case DateMarch 20, 2020
CourtUnited States State Supreme Court of Vermont

2020 VT 28

State of Vermont
Austin R. Burnett

No. 2018-240

Supreme Court of Vermont

September Term, 2019
March 20, 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: 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.

On Appeal from Superior Court, Addison Unit, Criminal Division

Helen M. Toor, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.), Specially Assigned

¶ 1. ROBINSON, J. Defendant appeals the trial court's decision that he violated a condition of his probation. Defendant argues the State both failed to prove the conditions of his probation and failed to prove that his conduct amounted to a violation. We conclude that the State failed to prove that defendant's conduct amounted to a violation of the probation condition (VOP) and accordingly reverse.

¶ 2. Defendant's relevant underlying convictions were for sexual assault of a victim under the age of sixteen (Docket No. 283-6-15) and sexual assault, no consent (Docket No. 284-6-15). He pled guilty and the court sentenced him to concurrent sentences of four to six years, suspended except for thirty-eight months, in No. 283, and five years, deferred, in No. 284. During

Page 2

sentencing, the court stated, "You'll be on probation until further order of the court with the sex-offender special conditions as you have already signed, and also with the requirement to undergo mental health evaluation." The court also stated that defendant would be subject to certain "standard" probation conditions.

¶ 3. The court apparently generated one probation order in each docket, and the orders were filed separately in the court's corresponding files. Both orders impose eight standard conditions on defendant. Neither is signed by defendant. In addition to the specified standard conditions, the deferred-sentence probation order in No. 284 imposes "Sex Offender Special Conditions," although there is no record of any specific sex-offender conditions in the court file. The partially-suspended-sentence probation order in No. 283 imposes "Sex Offender Special Conditions of probation attached hereto." This file does contain a signed list of sex-offender conditions. One of those conditions provides, "You shall participate fully in the Vermont Treatment Program for Sexual Abusers [VTPSA] during the course of your unsuspended sentence. Failure to complete said program while incarcerated may result in a violation of your probation."

¶ 4. This appeal arises from defendant's alleged violation of this probation condition.1 The State filed substantially identical complaints for violation of probation in both dockets.2 The trial court heard them at the same time. The affidavit accompanying the State's VOP complaint alleges:

On 12/31/2017 I received information from Corrections Service Specialist (CSS) Theresa Stone, with the [VTPSA] at the

Page 3

Nor[th]west Correctional Facility, that [defendant] was facing potential removal from the program because he had been convicted of a major disciplinary report for attempting to pick the lock on his cell door. On 12/13/2017 the VTPSA team evaluated the situation and determined these actions, in conjunction with other non-compliant behavior [defendant] had been exhibiting were directly risk related and resulted in [defendant's] removal from the VTPSA programming.

At this time it is unclear when and if [defendant] will be reaccepted into the VTPSA program.

¶ 5. The parties entered the VOP hearing anticipating that defendant would admit to the violation.3 At the hearing, the State represented that defendant was "kicked out" of the VTPSA facility after "he picked a lock." The court noted that the VOP complaint filed by the State also listed "other non-compliant behavior," and asked whether the defendant was planning to admit to any other behavior. The State said that no other admission was required, and defendant's attorney stated that the other behavior was "older" and "I think the lock picking covers it."

¶ 6. However, the agreement between the parties broke down when the court expressed doubt about whether picking a lock violated the identified condition. The trial judge began a colloquy with the defendant, but interrupted herself before the defendant admitted to the conditions or to a violation, stating: "The allegation here is that you were to—well, actually folks, I guess I have a question as I'm reading this, since the condition was to fully participate." The court expressed doubt as to whether "picking a lock" amounted to a failure to 'fully participate.' " The State argued that the rules of VTPSA require compliance with security measures, and that defendant failed to "follow the rules." However, the court concluded, "I don't think that I can say that picking the lock is not participating. It might be breaking a rule, but it's not exactly what we think of as non-participation in the program." The proceedings paused to allow the parties to confer, after which defense counsel stated, "At this point, Your Honor, we do not have an

Page 4

admission." The court hesitated to proceed with a hearing, but did so upon the State's affirmation that it had "some other evidence to present on some of the other issues, other than the lock picking."

¶ 7. The State first presented the testimony of a risk-intervention-services manager at the Department of Corrections (DOC) who testified that defendant "was recently terminated in December of '17 for attempting to pick a cell lock on the unit." He also noted that defendant "had some concerning behavior," including "cho[osing] not to follow redirections" during the Workforce Readiness program, being suspended from the Community High School of Vermont, stating that he was going to be "a dick to his case worker," and disciplinary problems resulting in termination of his employment at the facility's kitchen. He testified that the programming, including VTPSA, community high school, and workforce development, is now treated as "all one giant program," designed to "help offenders move back into the community."

¶ 8. The risk-intervention-services manager testified about several of the rules included in the VTPSA Orientation Handbook that "these guys are advised of when they're in the VTPSA program." The State did not offer the handbook into evidence, but the risk-intervention-services manager testified that the "active rules of the VTPSA program" include the following: no physical violence or threats of physical violence; no use of alcohol or drugs; no disobeying orders given by treatment providers or facility staff; no sexual contact with others or propositioning others for sexual contact; no unauthorized contact with, or possessing pictures of, any person that the offender has sexually victimized; follow the DOC policy of not using or possessing materials that feature nudity or sexually explicit pictures, drawings, or writing; participate actively; be respectful; maintain good hygiene; get approval for computer use outside the offender's treatment living unit; follow television guidelines; possess and display only appropriate pictures; and get approval for contact with minors. The risk-intervention-services manager said that the statement about defendant's case worker violated the rule that participants must "be respectful," and that

Page 5

defendant's going into his cell when he had been locked out of it would violate the rule not to disobey orders.

¶ 9. The State presented the testimony of two witnesses regarding the lock-picking incident, and it became clear that defendant had picked the lock to enter, rather than exit, his cell instead of waiting to be let in as instructed. First, a correctional officer testified that on the date of the incident she was "doing a tour" of the unit. While she was checking other cells, defendant and another inmate "insisted on getting into their cell." She told them to wait, and when she returned to them, the door had been opened. She testified that defendant told her he had unlocked the door with a hairbrush because "he just felt like it." On cross-examination, she testified that the door "looks like a wooden door" and is not a barred or all-metal door. Second, the State called a facility...

To continue reading

Request your trial
2 cases
  • State v. Burnett
    • United States
    • United States State Supreme Court of Vermont
    • July 1, 2022
    ...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......
  • State v. Burnett
    • United States
    • United States State Supreme Court of Vermont
    • July 1, 2022
    ...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 p......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT