State v. Lockwood

• Decision Date: 30 August 1993
• Docket Number: No. 90-067,90-067
• Citation: 632 A.2d 655,160 Vt. 547
• Parties: STATE of Vermont v. Gerald A. LOCKWOOD.
• Court: Vermont Supreme Court

Page 655

632 A.2d 655

160 Vt. 547

STATE of Vermont v. Gerald A. LOCKWOOD.

No. 90-067.

Supreme Court of Vermont.

Aug. 30, 1993.

Peter R. Neary, Rutland County Deputy State's Atty., Rutland, for plaintiff-appellee.

E.M. Allen, Defender Gen., and Anna Saxman, Appellate Atty., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Defendant, a mildly retarded adult, appeals from an order of the district court revoking his probation. He claims that (1) his probation warrant should be declared void because he lacked the capacity to sign it, or that it not be enforced because of the doctrine of impossibility, (2) the court erred by revoking probation without holding an additional competency hearing and without notifying defendant's protective services guardian, (3) warrantless searches of his living quarters and person by probation officers violated his constitutional privacy rights, and (4) a probation condition prohibiting possession of photographs of children violated his freedoms of speech and religion. We affirm.

In 1986, defendant was charged with sexually assaulting a four-year-old girl. In February 1987, after evaluation and hearing, he was found competent to stand trial. After additional evaluation and a hearing in December 1987, the court again found defendant competent to stand trial. The court concluded that defendant had a firm knowledge of the facts concerning his actions and whereabouts, that he was able to assist his attorney in locating and examining witnesses, that he was able to discern distortions and misstatements in testimony, that he could make decisions in response to carefully explained alternatives concerning his defense, that his comprehension improved with explanation, and that there was no indication that his condition would worsen under the stress of trial.

Prior to the second competency proceeding, the court granted defendant's petition for protective services pursuant to 18 V.S.A. §§ 9301-9317. The court found that he was unable to provide for his own needs and appointed a protective services worker. The court further found that defendant had "no understanding of the concept of a contract or any of the implications involved in entering into a contract."

In January 1988, pursuant to a plea agreement, defendant pled nolo contendere and was sentenced to serve three-to-eight years. The court suspended all but 153 days and placed defendant on probation with special conditions that prohibited him from possessing dolls, dolls' or children's clothing, and pictures of children. In February 1989, probation officers and a state police officer searched defendant's room and workshop at his supervised residence and found a knife, dolls, children's clothing, and hundreds of pictures of children. In March 1989, while the resulting violation of probation was pending, defendant pled nolo contendere to a charge of lewd and lascivious conduct for exposing himself to young girls. For that offense, he received a sentence of zero-to-four years, all suspended. For the violation of probation, he was sentenced to serve the original underlying term of three-to-eight years, all suspended but 161 days with credit awarded for 153 days already served. New conditions were added to defendant's probation warrant, including that he not possess any firearm or other deadly weapon and that he submit to a "body, clothing, [and] residential search as required."

Defendant signed his probation warrants after both sentencings and initialed each condition following explanation by a probation officer. His protective services worker was not present when he signed the warrant. The court found that defendant understood his probation conditions when imposed and that those conditions were given significant attention during the pendency of his probation. For example, at all weekly meetings with defendant, his probation officers read each special condition, explained its meaning, and discussed it with him. On each visit, they required him to write out his "rules" until they were committed to memory. Once defendant was placed in a private residential setting in early 1989, his supervisor, who has a master's degree in education and counseling, reviewed defendant's special conditions with him daily and emphasized that his living quarters and workshop area were subject to frequent, unannounced searches.

After defendant displayed symptoms similar to those exhibited prior to his earlier violation of probation--refusing to perform tasks, complaining about restrictions, and displaying general agitation--his supervisor searched defendant's workshop area looking for pictures of children. In defendant's file cabinet, the supervisor found a fully operational pistol with clips and ammunition, which had been left elsewhere in the residence a year earlier by an acquaintance of the supervisor. Probation officers then searched defendant's living quarters and workshop area. They found photographs of female children, magazines and newspapers with pictures of young children, a child's T-shirt, a doll's cap, children's records, a wrench, a chain, a hand gardening tool, a ten-inch drill bit, a plastic covered braided wire, and single-edged razor blades. A probation officer strip-searched defendant but found nothing.

In connection with his revocation hearing, defendant moved to suppress introduction of physical evidence, arguing that the warrantless searches violated his constitutional privacy rights. He also moved to suppress statements he made, arguing that he had not waived his right to remain silent and to consult with an attorney. The court denied these motions, concluding that the state's interest in protecting the community permitted a degree of encroachment on defendant's privacy rights, that defendant had consented to the search when he signed his probation warrant, and that he had not been in custody when the statements were made. In December 1989, the court found that defendant had violated three conditions of his probation and later sentenced him to serve both underlying sentences of three-to-eight and zero-to-four years consecutively.

I.

Defendant raises two contract-based challenges to the validity of his probation warrant. Defendant first argues that a probation warrant is a contract, which in this case was void and unenforceable because it was not signed by the protective services worker to whom the court had delegated defendant's power to contract. We disagree.

The provisions of 18 V.S.A. § 9310(a)(2), which grant a guardian "power to approve or withhold approval of any contract ... which the retarded person wishes to make," do not require the guardian's signature on a defendant's probation warrant. Although we have termed probation warrants "contracts," State v. Whitchurch, 155 Vt. 134, 139, 577 A.2d 690, 693 (1990), the purposes of a probation warrant illustrate its difference from an ordinary contract. A probation warrant serves to give a defendant fair notice of what conduct may constitute a probation violation, thereby resulting in defendant's loss of liberty. State v. Peck, 149 Vt. 617, 619, 547 A.2d 1329, 1331 (1988). Section 9310(a)(2), however, refers to contracts that "the retarded person wishes to make." Here, defendant chose to plead guilty and accept probation to avoid possible incarceration. Although defendant may have "wished" to make the probation contract with the court, his choice was forced and the result of his criminal conduct. We conclude that a probation warrant is not the type of contract contemplated by § 9310(a)(2).

Second, defendant argues that he lacked the ability to comprehend or comply with his conditions of probation; therefore, performance of the probation warrant was impossible from the outset, and this Court should not enforce the contract. ¹ As stated above, a probation warrant differs from an ordinary contract. Moreover, the evidence does not support defendant's argument that the performance of the warrant was impossible. Instead, the court took pains to fashion unique probation conditions that were suited to defendant's particular situation in order to create the best chance for his rehabilitation. Moreover, as previously noted, the probation officers repeatedly discussed these conditions with defendant and helped him commit them to memory.

Nor does defendant's alleged inability to comply with the conditions at the time of the violation bar revocation of his probation. Probation is intended to allow a defendant an opportunity for rehabilitation at the same time it protects society. See United States v. O'Sullivan, 421 F.Supp. 300, 302 (S.D.N.Y.1976) (despite rehabilitative purposes of probation, it will be revoked if defendant is a danger to society). The purpose of a revocation hearing is not to determine defendant's culpability, but rather to decide "whether the alternatives to incarceration which have been made available to a defendant remain viable for him." People ex rel. Gallagher v. District Court, 196 Colo. 499, 591 P.2d 1015, 1017 (1978) (en banc). Revocation will result when the continuation of probation conditions would be at odds with the need to protect the public and society's interest in rehabilitation--in other words, when the rehabilitative purposes of probation have failed and defendant is a threat to society. Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973); People v. Allegri, 109 Ill.2d 309, 93 Ill.Dec. 781, 782, 487 N.E.2d 606, 607 (1985); State v. Hutchison, 63 Ohio App.3d 721, 580 N.E.2d 34, 36 (1989); see 28 V.S.A. § 303 (stating grounds for revocation). Thus, many courts have ruled that a plea of not guilty by reason of insanity is not a defense in probation revocation hearings because defendant's personal culpability is not at issue. See, e.g., Trumbly, 515 P.2d at 708-09 (insanity defense irrelevant in probation revocation hearing); People v. Breaux, 101 Cal.App.3d 468, 161...