State v. J.S., 16–310

• Decision Date: 27 April 2018
• Docket Number: No. 16–310,16–310
• Parties: STATE of Vermont v. J.S.
• Court: Vermont Supreme Court

189 A.3d 552

STATE of Vermont

v.J.S.

No. 16–310

Supreme Court of Vermont.

September Term, 2017

April 27, 2018

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

Matthew Valerio, Defender General, Marshall Pahl, Appellate Defender, and Rasheta Butler, Law Clerk (On the Brief), Montpelier, for Defendant–Appellant.

PRESENT: Reiber, C.J., Skoglund and Robinson, JJ., and Dooley, J. (Ret.), and Pineles, Supr. J. (Ret.), Specially Assigned

REIBER, C.J.

¶ 1. Defendant appeals the trial court's decision that he violated the terms of his juvenile probation by failing to attend school, comply with his GPS-monitoring requirements, and participate in a Restorative Justice Panel. Defendant also appeals the trial court's decision to revoke his youthful-offender status based on these violations. We affirm in part and reverse and remand in part.

¶ 2. In June 2012, defendant was charged with sexual assault, in violation of 13 V.S.A. § 3252(a)(1), based on allegations that he forced his girlfriend to have sexual intercourse with him without her consent. At that time, defendant was seventeen, and his girlfriend was sixteen. The criminal court transferred defendant to juvenile court in September 2013, but it reversed that decision the next month, returning defendant to criminal court. In December 2013, defendant entered a conditional guilty plea, which was contingent on the family division's accepting defendant for participation in the youthful-offender treatment program, pursuant to 33 V.S.A. § 5281. In February 2014, the family division accepted defendant as a youthful offender and entered the terms of his juvenile probation. The court set a two-year juvenile probationary period, anticipating completion in February 2016.

¶ 3. Between June 2014 and November 2014, defendant's probation officer filed six complaints for violations of probation. By the second complaint, dated July 25, 2014, the probation officer recommended removal from the youthful-offender program, arguing that defendant was not "amenable to treatment as a youthful offender." After three days of hearings, beginning in October 2014 and concluding in January 2015, the court found that defendant had violated the terms of his juvenile probation by (1) failing to attend school without excuse, (2) failing to comply with his GPS-monitoring requirements, and (3) failing to participate in a Restorative Justice Panel. Based on these violations, the trial court revoked defendant's youthful-offender status and returned the case to criminal court for sentencing. Defendant was sentenced to serve three years to life, all suspended except for two years, with credit for time served, and was placed on probation. On appeal, defendant challenges each violation finding, the standard the court used to decide revocation, and the revocation decision. We address each argument in turn.

I. Violations of Probation

¶ 4. We first address defendant's arguments that the court erred in finding violations of probation. The State has the burden to show that defendant violated the terms of his probation. 33 V.S.A. §§ 5268(b), 5285(b). The State meets its burden if it can show by a preponderance of the evidence that there has been a violation of a probation condition that is "express" or "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 alterations omitted). If the State meets that burden, "the burden of persuasion shifts to the probationer to prove 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 and alterations omitted). A defendant's conduct is willful if the "defendant intended to do the act that constituted the violation" and "the violation could not result from mistake, an accident, or a misunderstanding." Benson v. Muscari, 172 Vt. 1, 4, 769 A.2d 1291, 1295 (2001).

¶ 5. Probation violations raise mixed questions of law and fact. State v. Provost, 2014 VT 86A, ¶ 12, 199 Vt. 568, 133 A.3d 826. The trial court makes a factual determination regarding what actions the defendant committed, and then the court makes a legal conclusion that the acts violated the terms of probation. State v. Blaise, 2012 VT 2, ¶ 12, 191 Vt. 564, 38 A.3d 1167 (mem.). On appeal, we will uphold findings of fact if they are "supported by credible evidence," and we will uphold legal conclusions "if supported by the findings." Id.; State v. Decoteau, 2007 VT 94, ¶ 8, 182 Vt. 433, 940 A.2d 661. We conclude the record supports the trial court's findings with respect to defendant's school-attendance, GPS-monitoring, and Restorative Justice Panel participation violations.

A. Failing to Attend School

¶ 6. Defendant's juvenile probation certificate required that if he was "enrolled in school or a training program," he had to "attend daily and on time, unless excused." The State produced evidence that defendant had nine unexcused absences between June 2014 and October 2014, plus an additional unexcused absence in November 2014. This evidence supports the trial court's conclusion that defendant violated the terms of his probation by failing to attend school without excuse.

¶ 7. Defendant challenges the court's findings, arguing that the evidence could not prove a violation because the testimony did not identify specific dates on which defendant was absent. However, the State did introduce specific evidence: two absences between April and June 2014; all five days scheduled for July 2014; two in September 2014; and one in November 2014. This evidence is not "vague" or "general," as defendant argues. Cf. State v. Johnson, 638 So.2d 273, 275 (La. Ct. App. 1994) (finding state did not bear its burden of proof where only evidence of probation violation was "vague reference" to certified copy of out-of-state conviction). Defendant also claims the court erred in finding the absences occurred between June 24, 2014, and October 6, 2014, whereas the evidence established absences between April 14, 2014, and September 30, 2014. We reject this argument as unreasonably technical. Cf. In re Twenty–Four Vt. Utils., 159 Vt. 363, 369, 618 A.2d 1309, 1312 (1992) (dismissing argument about administrative board's analysis as "overly technical"). The court found repeated unexcused absences before the first violation-of-probation hearing, and the evidence supports that finding.¹

¶ 8. Next, defendant argues that the trial court erred in finding his unexcused absences "willful," stating the absences resulted from housing and transportation difficulties. See Austin, 165 Vt. at 398, 685 A.2d at 1082 (requiring probationer to show violation was not willful). The evidence shows that in June 2014, defendant and his family were evicted from their apartment and moved to a motel. They shared one car, the closest bus stop was a few miles away, and defendant had difficulty arranging bus pick-ups. Defendant requested to spend a few nights each week at his sister's home, which was located very close to defendant's school, but the probation officer said this would require the Department for Children and Families to investigate defendant's contact with the young children living with defendant's sister.

¶ 9. The evidence supports the trial court's conclusion that defendant's unexcused absences were intentional and not beyond his control. See State v. Anderson, 2016 VT 40, ¶ 13, 202 Vt. 1, 146 A.3d 876 (determining conduct willful if it is "the result of intentional conduct" and not "by accident, mistake, or inadvertence" (quotation omitted) ). Defendant's school liberally excused his absences due to transportation failures. The evidence shows that defendant's unexcused absences, on which the trial court based its determination, resulted not from problems outside his control, but from defendant's failures to get the absences excused.

B. Failing to Comply with GPS–Monitoring Requirements

¶ 10. The terms of defendant's probation required that he "follow the [Department of Corrections'] special conditions for sex offenders," which included that he must "submit to GPS monitoring as directed by [his] Probation Officer." Defendant was informed how the GPS unit worked and that he must charge it for at least two hours each day. When the unit's battery ran low, it would turn red and vibrate for ten to forty minutes before shutting down. Defendant testified that the unit once vibrated for sixty minutes before it shut down. The evidence shows defendant understood how to maintain the GPS battery and allowed it to remain uncharged on multiple occasions, causing it to shut off. Based on this evidence, the court reasonably concluded that defendant violated his GPS-monitoring requirements.

¶ 11. Defendant argues the State's evidence that he failed to charge the GPS unit was hearsay. Defendant concedes he did not object when the evidence was admitted. In fact, defendant testified to repeated shut-downs and introduced evidence of shut-downs on August 10, 2014, for fifty minutes and on August 11 and 12, 2014, for thirty-one hours. Defendant cannot claim error for evidence he introduced. See State v. Massey, 169 Vt. 180, 185, 730 A.2d 623, 627 (1999) ("We have addressed claims of error based on evidence introduced by the aggrieved party and held that the party must assume the responsibility for whatever prejudice to his case derived from this evidence." (quotation omitted) ). Moreover, defendant did not preserve his objection in the trial court proceedings, and we find no plain error, if any error at all, in its admission. State v. Gauthier, 2016 VT 37, ¶¶ 9–10, 201 Vt. 543, 145 A.3d 833 (applying plain-error review where probationer failed to preserve challenge to probation conditions). Because defendant presented the contested evidence, he cannot show the admission affected his substantial rights or resulted in prejudice against him. See id. ¶ 10 (finding plain error only...