State v. Hammond, 00-401.

• Decision Date: 01 August 2001
• Docket Number: No. 00-401.,00-401.
• Citation: 779 A.2d 73
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Sean HAMMOND.

779 A.2d 73

STATE of Vermont v. Sean HAMMOND.

No. 00-401.

Supreme Court of Vermont.

August 1, 2001.

Present: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant appeals from a decision of the district court finding him in violation of his conditions of probation. He argues on appeal that he was not given sufficient notice of the condition he was found to have violated and that the record does not support a finding that he violated a condition voluntarily. We reverse.

Defendant was charged with sexual assault in January 1998. He pled guilty and was sentenced to eight years in prison, with all but three years suspended. Conditions of defendant's probation included a requirement that he successfully complete the Windsor in-house sex offender counseling program and a requirement that he successfully complete any other counseling directed by his probation officer. Defendant was assessed for admission into the Vermont Treatment Program for Sexual Aggressors (VTPSA) at the Windsor Correctional Facility, but was found ineligible at that time based on the nature of his crime. The assessment team recommended that he participate in the Cognitive Self Change (CSC) program at the facility instead, deeming it more appropriate for defendant. Because of this change, the assessment team thought it better that he be referred to VTPSA after his release—he would not have had enough time to complete both the CSC program and VTPSA during his period of incarceration. There is no indication in the record, however, that this decision by the assessment team was ever communicated to the defendant. Nor does the record reflect that this alternative plan was approved by defendant's probation officer. Defendant did testify, however, that he was told that if he did not participate in the CSC program, he would be "shipped to Virginia."

Several months after his acceptance into the CSC program, the program was moved to the Northern State Correctional Facility in Newport, and defendant moved with the program. He was eventually terminated from the program five months before his scheduled release date, in part because he wrote several inappropriate letters to women while in prison and in part because he was not participating satisfactorily in the CSC program. When informed of the thirty-day period in which he could redeem himself and be readmitted to the program, defendant responded this would not be necessary as he was scheduled to be released soon. Shortly thereafter, defendant was assaulted by another prisoner and hospitalized for a month. He was cited by his probation officer for a violation of his conditions of probation because of his failure to successfully complete the CSC program. Prior to that, defendant had never met with his probation officer, nor had any communications from her.

Following a hearing, the district court found that by failing to complete the CSC program, defendant had violated his conditions of probation. The court based its decision on its finding that defendant "was placed on reasonable notice that he was going to be required to complete the [CSC program] before being able to enter into [VTSPA]." The court also found that defendant was told that he could complete VTSPA after his release.¹ The court revoked his probation and modified his sentence such that all but four years were suspended, and defendant was ordered to complete the CSC program in-house and the sex offender programming following his release.

Defendant argues that he was not given sufficient notice that completion of the CSC program was a condition of probation. Furthermore, he argues that because he was found ineligible for VTSPA, satisfaction of that portion of his conditions of probation was placed outside of his control. The trial court concluded that because completion of CSC by defendant was a necessary precondition to his admission to VTSPA, his removal from the program in effect was a failure to successfully participate in the VTSPA program as required by defendant's sentencing order.

Although a probation agreement is in no sense a "strait-jacket," State v. Emery, 156 Vt. 364, 373, 593 A.2d 77, 82 (1991), and a defendant may be put on notice as to what may constitute a probation violation merely by the instructions and directions of a probation officer, State v. Peck, 149 Vt. 617, 619-20, 547 A.2d 1329, 1331 (1988), "defendant is entitled to know what conduct is forbidden before the initiation of a probation revocation proceeding." State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1201 (1985). Due process requires it. Peck, 149 Vt. at 619, 547 A.2d at...