State v. Galloway

• Decision Date: 20 March 2020
• Docket Number: No. 2019-110,2019-110
• Citation: 2020 VT 29
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Darryl M. Galloway

2020 VT 29

State of Vermont v. Darryl M. Galloway

No. 2019-110

Supreme Court of Vermont

January Term, 2020

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: JUD.Reporter@vermont.gov 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, Chittenden Unit, Criminal Division

David R. Fenster, J.

Sarah George, Chittenden County State's Attorney, Pamela Hall Johnson and Andrew M. Gilbertson, Deputy State's Attorneys, and William Conlon, Law Clerk (On the Brief), Burlington, for Plaintiff-Appellee.

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

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. COHEN, J. Defendant Darryl Galloway appeals the trial court's conclusion that he violated a condition of probation when he failed to complete a sex-offender treatment program while incarcerated. He argues that the Department of Corrections (DOC) impermissibly modified the condition in requiring him to complete the in-house program. We agree and reverse.

¶ 2. In January 2009, defendant pled guilty to four counts of lewd and lascivious conduct contrary to 13 V.S.A. § 2601. The charges stemmed from incidents in which defendant exposed his penis to clothing store clerks in 2006. The trial court sentenced defendant to four consecutive terms of one to five years' imprisonment, suspended with probation, but with one year to serve in each count. The result was an aggregate sentence of four to twenty years, suspended, except for four years to serve. At the change-of-plea hearing, the court imposed several conditions of probation and placed defendant on probation. Condition 31 provides: "You will successfully enroll, participate in, and complete a program for sex offenders approved by DOC and assume the costs of your treatment." The court read condition 31 to defendant and he later signed the probation order.

¶ 3. In March 2010, DOC filed a violation-of-probation (VOP) complaint against defendant for violating condition 31. DOC alleged that while incarcerated, defendant was interviewed to determine eligibility for admission to the Vermont Treatment Program for Sexual Abusers (VTPSA); that defendant began the program in April 2009; and that following disciplinary infractions against program staff and suspension from the program, defendant refused to complete the program. Defendant's probation officer also declared that he asked defendant if he "understood that not engaging in the in-house treatment program as recommended by the VTPSA team placed [defendant] in violation of his probation order," and that defendant answered affirmatively.

¶ 4. A VOP hearing was held in May 2010. The court described condition 31 as follows: "that he participate in the in-house sex-offender treatment program and it's alleged that he did not participate satisfactorily." The State proposed a deal whereby defendant would admit to the violation and only two of the four suspended sentences would be revoked, leaving him with two to ten years to serve on two counts and two to ten years suspended with probation on the other two counts. The court described the State's proposal to defendant and explained that continuedfailure to complete the program could result in probation revocation on the other two counts, causing him to serve the entire twenty-year sentence. Defendant agreed and admitted to violating condition 31. The court revoked probation on counts one and two and continued probation under the original conditions in counts three and four.

¶ 5. In January 2019, DOC released defendant after he served the ten-year sentence on counts one and two. DOC put him on a bus bound for Seattle before realizing he was still on probation on counts three and four. DOC then retrieved defendant, placed him back in custody, and filed a second VOP complaint for violating condition 31 on counts three and four. DOC alleged that defendant refused to participate in VTPSA during his ten years of incarceration.

¶ 6. In March 2019, the trial court held another VOP hearing. Noting a lack of evidence to prove that defendant was waiting to complete sex-offender treatment in the community, and his willingness to leave for Seattle without completing the treatment, the court found that defendant did not intend to complete sex-offender treatment. The court then found that defendant had been on probation since his guilty plea in 2009 and that given his ten-year failure to complete the treatment, he did not complete the programming within a reasonable amount of time. Relying on the 2010 VOP hearing record, the court found that given defendant's VOP admission for failing to complete VTPSA in the facility, and his acknowledgement of DOC's warning that not engaging in the in-house program placed him in violation of probation, he was on notice that he needed to complete the program in the facility. The court thus found defendant in violation of probation, revoked probation on counts three and four, and imposed the underlying two-to-ten-year sentence on those counts. This appeal followed.

¶ 7. Defendant argues that he was not on notice that he had to complete the treatment program while incarcerated, among other reasons, because the plain language of the condition does not state that it must be completed while incarcerated. He maintains that DOC's requirement that he complete the in-house program amounts to a modification of the condition, a power vested only in the courts. Defendant also contends that the 2019 VOP court filled an evidentiary gap in the State's case by relying on the record of the 2010 proceedings and thus deprived him of due process. He asks us to reverse the 2019 VOP finding and order his release.

¶ 8. The State argues that defendant obtained fair notice that failure to complete the in-house VTPSA constituted a violation of probation from his probation officer, other DOC personnel, the 2010 VOP court, and his 2010 VOP admission. It maintains that defendant did not raise his modification argument before the trial court and that he fails to prove plain error on that issue. The State also argues that DOC determined that the appropriate program for defendant was the VTPSA high-intensity prison program, such that VTPSA was the program "approved" by DOC.

¶ 9. In a VOP hearing, the State has the burden to prove "by a preponderance of the evidence that the probationer has violated an express or clearly implied probation condition." State v. Stuart, 2018 VT 81, ¶ 10, 208 Vt. 127, 196 A.3d 306. If the State shoulders this initial burden, "the burden shifts to the probationer to prove the violation was not in his or her control, but rather resulted from extrinsic factors through no fault of the probationer." Id.

¶ 10. Our review of the trial court's conclusion that a probationer violated a probation condition involves two steps. "First, we examine the trial court's factual findings and will uphold them if supported by credible evidence." State v. Kane, 2017 VT 36, ¶ 14, 204 Vt. 462, 169 A.3d762 (quotations omitted). Second, we examine the court's legal conclusion that the probationer's actions violated the probation condition. State v. Bostwick, 2014 VT 97, ¶ 11, 197 Vt. 345, 103 A.3d 476. "We uphold that legal conclusion if it is 'reasonably supported by the findings and does not constitute an erroneous interpretation of the law.' " Id. (quoting State v. Sanville, 2011 VT 34, ¶ 7, 189 Vt. 626, 22 A.3d 450 (mem.)).

¶ 11. We agree with the State that defendant did not raise the modification argument before the trial court. At the 2019 VOP hearing, defendant argued that condition 31 does not state that he must complete VTPSA while incarcerated and that after the 2010 VOP hearing, DOC did not warn him that he risked another violation if he failed to complete the program while incarcerated. This can only be construed as an argument regarding lack of notice, not that DOC impermissibly modified the condition. Because defendant did not raise his modification argument before the trial court, we review for plain error. See, e.g., State v. Provost, 2014 VT 86A, ¶ 14, 199 Vt. 568, 133 A.3d 826. Reversal on plain-error grounds is appropriate where the error is "obvious" and "strikes at the heart of [defendant's] constitutional rights or results in a miscarriage of justice." Id. (quoting State v. Ayers, 148 Vt. 421, 426, 535 A.2d 330, 333 (1987)).

¶ 12. In this case, we uphold the trial court's factual findings that defendant was on probation in 2019 and subject to condition 31. We reverse as plain error the court's legal conclusion that defendant violated condition 31 because the conclusion rests on a DOC interpretation of the condition that is inconsistent with its plain language and thus amounts to an impermissible modification by DOC. Because defendant's requested remedy is the same for all his arguments, and because we grant that remedy, we do not address his other arguments.

¶ 13. "The power to impose probation conditions rests with the court, not employees of the DOC." State v. Putnam, 2015 VT 113, ¶ 64, 200 Vt. 257, 130 A.3d 836; see also 28 V.S.A. § 252(a) ("The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist the offender to do so."). Similarly, the court retains the exclusive power to modify probation conditions. Bostwick, 2014 VT 97, ¶ 14; see also 28 V.S.A. § 253(a) (granting court power to modify or add probation conditions). However, probation conditions must retain a measure of flexibility, and "probation officers may be granted a limited amount of discretion in...