State v. Day
| Citation | 511 A.2d 995,147 Vt. 93 |
| Decision Date | 18 April 1986 |
| Docket Number | No. 85-023,85-023 |
| Parties | STATE of Vermont v. Darrell DAY. |
| Court | United States State Supreme Court of Vermont |
Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Herbert W. Olson, Asst. Atty. Gen., Waterbury, for plaintiff-appellee.
Martin & Paolini, Barre, for defendant-appellant.
Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.
In November 1983, defendant pleaded nolo contendere to a charge of burglary. In exchange for defendant's plea, the prosecutor agreed to dismiss several other charges. A written plea agreement between defendant and a deputy state's attorney recommended disposition in the following terms:
2-4 years; 18 months to serve beginning [November 28, 1983]; balance suspended; probation; pro-rata restitution in [amount] to be determined by Probation Dept. ( [defendant] can contest [the amount] of same); any violation of parole or probation to be concurrent; [defendant] may withdraw plea if judge exceeds recommendation or if parole authorities wish to exceed sentence.
Accepting the agreement, the district court sentenced defendant to a term of two to four years, suspended, with eighteen months to be served, followed by probation. The court's order required several conditions of probation, including, among others, requirements that defendant pay a prorated amount in restitution; that he not be convicted of another offense; that he seek employment; and that he regularly report to his probation officer and cooperate with that official in several specified ways. Defendant signed a probation warrant form which listed the terms of his sentence and conditions of his probation.
After defendant received his release from incarceration in January 1985, his probation officer wrote to the district court requesting the court to impose additional, more-restrictive conditions of probation. The new conditions included, inter alia, requirements that the probationer not purchase, possess, or consume alcohol or regulated drugs; that he submit to an alcosensor or urinalysis test or a photographic identification line-up whenever the probation officer directs; that he abide by a daily curfew of 9:00 p.m. to 6:00 a.m. and attend an alcohol and drug treatment seminar at his own expense; and that he not possess deadly weapons.
The district court convened a hearing to determine the appropriateness of these proposed additional conditions of probation. At that hearing a probation officer admitted that he was not seeking modifications due to new information changing defendant's "risk factor." Nor did he allege violations of existing conditions of probation. 1 Instead, he sought new conditions because defendant fit the profile of probationers for whom an "intensive supervision" program, developed after defendant's initial sentencing, would be appropriate. Thus, he sought the modifications due to changes in his department's programing rather than due to changes in defendant's behavior. The court adopted the proposed conditions over defendant's objection that more-restrictive conditions could not be imposed without a change in his circumstances. Although defendant signed a form purporting to agree with the modifications in his probation, he did so only after the court stated: "He has a choice, either sign it or go to Rutland Correctional Center." We reverse.
Defendant argues that the modification of his conditions of probation violates the terms of his plea agreement. The State responds with the contention that, except for the amount in restitution, the plea agreement did not address the conditions of probation, but left them to the court's discretion. The record supports the State's position.
This case involves two agreements: one concerning the preconditions to a change of plea, and the other concerning the conditions of probation. Certainly, a defendant who changes his plea from not guilty to either guilty or nolo contendere after striking a plea bargain has the right to demand that the State fulfill its end of the bargain. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); State v. Earle, 145 Vt. 650, 653, 497 A.2d 28, 29 (1985). Accordingly, if the plea agreement had encompassed a set of probationary conditions, then the State could not have unilaterally sought a change of conditions later.
Here, the plea agreement included just one condition of probation--restitution--but it contemplated there would be others. Defendant concedes that much. He argues, however, that he believed that the conditions which he contemplated were the "standard conditions of probation that appear[ed] on the probation warrant" which he signed. This argument treats two distinct agreements as one. Defendant initially agreed to change his plea in exchange for certain concessions by the prosecutor. Then, after the court accepted the plea bargain, defendant agreed to abide by a list of conditions imposed with his probationary sentence.
By later seeking modification of the terms of probation, the State did not violate the terms of the original plea bargain. That bargain did not encompass an all-inclusive list of conditions; rather, it left the conditions for the court's determination. Whether modification of the conditions of probation violated the probation agreement, on the other hand, raises a second question for our consideration.
Defendant contends that we should construe 28 V.S.A. § 253, 2 which authorizes modification of conditions of probation, to require a showing of change of circumstances amounting to good cause for permitting imposition of more-restrictive conditions of probation. The State, on the other hand, argues that such modification is simply an exercise of judicial discretion.
Subsection 253(a) authorizes a district court to make modifications such as those made in the present case. The statute is silent, however, as to the necessary preconditions for modification. Although subsection 253(b) requires a hearing before modification, the literal language does not specify what showing, if any, is required to impose a more-restrictive probationary sentence. The State argues in this case that a court has complete discretion, even without a change in a probationer's circumstances, to set more burdensome terms of probation whenever the court "believes that it is in the best interest of society."
Such an argument ignores the contract-like nature of a probation agreement. We have said that Sherwin v. Hogan, 136 Vt. 606, 609, 401 A.2d 895, 896 (1979). Changing the terms of probation without either the probationer's consent 3 or a change in circumstances betrays the justifiable expectation that the agreement will be honored.
We are not alone in this view that a change of circumstances is necessary before more serious conditions of...
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State v. Peck
...condition was never modified because the probation officer acted only pursuant to the original probation condition. Cf. State v. Day, 147 Vt. 93, 511 A.2d 995 (1986). Second, the sentence is appropriate under 13 V.S.A. § 7002; defendant was lawfully convicted of simple assault and sentenced......
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State v. Byrne
...upon entering a guilty plea and is entitled to place reliance on the terms of a plea agreement being carried out. See State v. Day, 147 Vt. 93, 95, 511 A.2d 995, 997 (1986); State v. Earle, 145 Vt. 650, 653, 497 A.2d 28, 29 (1985). In this case, the terms of the agreement are in dispute. A ......
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State v. Foster, 87-084
...conditions of probation cannot be modified without the probationer's consent or a finding of changed circumstances. State v. Day, 147 Vt. 93, 96, 511 A.2d 995, 998 (1986). The contractual nature of probation does not, however, help defendant in this case. It is clear from the record that th......
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State v. Whitchurch, 89-035
...The court may modify those conditions where the modification is sought by the defendant. See 28 V.S.A. § 253(a); State v. Day, 147 Vt. 93, 96, 511 A.2d 995, 997-98 (1986). If the modification results in the probationer escaping part of the obligation of a plea agreement after accepting its ......