State v. Stern
Decision Date | 06 April 2018 |
Docket Number | No. 17–150,17–150 |
Citation | 186 A.3d 1099 |
Parties | STATE of Vermont v. John J. STERN, Jr. |
Court | Vermont Supreme Court |
Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff–Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. Defendant appeals the trial court's determination that he violated the terms of his probation by possessing a firearm in violation of 13 V.S.A. § 4017. We affirm.
¶ 2. Defendant pled guilty to domestic assault in November 2015. The trial court deferred his sentence for one year and placed him on probation. Defendant's deferred sentence and probation order stated, "You must not engage in criminal behavior[.]" After defendant's release on probation, he asked his probation officer whether he could possess a firearm. The probation officer informed him that he was not an attorney, but he thought defendant could. This was incorrect. Under Vermont law, it is illegal for anyone convicted of domestic assault to possess a firearm. See 13 V.S.A. § 4017(a), (d)(3) ( ); id. § 5301(7)(C) ( ).
¶ 3. During the fall of 2016, defendant encountered police officers three times. Each time, he voluntarily informed the officers that he possessed a gun. In November 2016, the State filed an affidavit alleging defendant had violated his probation by possessing a firearm on three occasions. After a hearing in December 2016, the trial court determined that Condition 31 of the probation certificate, which prohibited "engag[ing] in criminal behavior," provided "fair notice" that firearm possession would violate 13 V.S.A. § 4017, a strict liability offense; that defendant was in possession of a firearm on three occasions; and that defendant, accordingly, violated the terms of his probation. The court further held that the burden generally falls on defense counsel, not the probation officer, to inform defendant of potential "collateral consequences of a [criminal] conviction." Defendant timely appealed.
¶ 4. Defendant makes two arguments. First, he argues that the probation officer's statements "eviscerate[d] the clarity" of the probation condition such that he cannot be held to have violated the terms of his probation. Second, defendant argues that even if he did violate his probation, he did not do so willfully. Defendant does not dispute the trial court's finding that he possessed a firearm in violation of 13 V.S.A. § 4017.
¶ 5. A violation-of-probation decision "presents a mixed question of law and fact." State v. Sanville, 2011 VT 34, ¶ 7, 189 Vt. 626, 22 A.3d 450 (mem.). On review, "[w]e will not disturb the court's findings if they are fairly and reasonably supported by credible evidence, and we will uphold the court's legal conclusions if reasonably supported by the findings." State v. Provost, 2014 VT 86A, ¶ 12, 199 Vt. 568, 133 A.3d 826 (quotation omitted). Defendant's first argument disputes the trial court's legal conclusion by raising a question of law; we review that question of law de novo. State v. Bryan, 2016 VT 16, ¶ 12, 201 Vt. 298, 142 A.3d 204 ( ). Defendant's second argument raises a question of fact, which we will uphold if "fairly and reasonably supported by credible evidence." State v. Decoteau, 2007 VT 94, ¶ 8, 182 Vt. 433, 940 A.2d 661 ; State v. Anderson, 2016 VT 40, ¶ 13, 202 Vt. 1, 146 A.3d 876 ().
¶ 6. In order for the court to find a violation of probation, the State must show, by a preponderance of the evidence, that "there has been a violation of a probation condition whose requirements were known to the probationer." State v. Coyle, 2005 VT 58, ¶ 8, 178 Vt. 580, 878 A.2d 1062 (mem.) (emphasis added). "[D]ue process requires that a convicted offender be given fair notice as to what acts may constitute a violation of his probation, thereby subjecting him to loss of liberty." State v. Peck, 149 Vt. 617, 619, 547 A.2d 1329, 1331 (1988) ; see also State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1201 (1985) (). Therefore, a court can find a probationer in violation of probationary terms only when those terms are "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 in original omitted).
¶ 7. A probationer has fair notice of those conditions expressly stated in the probation certificate. See 28 V.S.A. § 252(c) (); State v. Kane, 2017 VT 36, ¶ 20, 204 Vt. ––––, 169 A.3d 762 . The instructions and directions of the probation officer may also provide fair notice. See State v. Blaise, 2012 VT 2, ¶ 15, 191 Vt. 564, 38 A.3d 1167 (mem.) .
¶ 8. Defendant's probation certificate provided defendant fair notice that gun possession constituted a violation of his probationary terms, and he does not argue otherwise. The certificate expressly prohibited defendant from "engag[ing] in criminal behavior," and it is criminal behavior for someone convicted of domestic assault to possess a gun. 13 V.S.A. § 4017. Defendant agrees that the condition was clear: "Condition 31, ‘You must not engage in criminal behavior,’ is not vague on its face ...." Cf. Sanville, 2011 VT 34, ¶ 1, 189 Vt. 626, 22 A.3d 450 ( ). Defendant also concedes that his gun possession was criminal behavior proscribed by the plain terms of the probation certificate. And he does not dispute the long-standing legal principle that "ignorance of the law is not an excuse," meaning, the law presumes all individuals know the law and are responsible for noncompliance. See State v. Fanger, 164 Vt. 48, 53, 665 A.2d 36, 38 (1995) ( ); State v. Woods, 107 Vt. 354, 356–57, 179 A. 1, 2 (1935) ( ).1
¶ 9. What defendant disputes is how his probation officer affected that notice. Defendant argues that the officer's statements "eviscerate[d] the clarity in the condition" such that defendant no longer had fair notice of what was required of him. We have established that the directions and instructions of probation officers may serve as fair notice to the probationer. See State v. Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75 (2001) (mem.) ("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") that ; State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990) ().
¶ 10. We have not yet considered whether a probation officer's statements may remove fair notice already provided through the certificate.2 We decline to establish whether, as a matter of law, some circumstances exist in which a probation officer's statements may vitiate fair notice because, in this case, we determine that the probation officer's statements were not sufficiently clear and unambiguous as to remove the express notice provided by the probation certificate. Instead, the probation officer's statements were equivocal. At the violation-of-probation hearing, defendant's probation officer testified:
Thus, defendant's probation officer made clear that although, in his opinion, defendant could possess a firearm, he was not certain whether firearm possession constituted criminal behavior in defendant's circumstances.
¶ 11. The probation officer's equivocation should have put defendant on notice that he must make further inquiries to ensure he understood the terms of his probation. Defendant acknowledged that he received and understood the conditions of his probation, and he is presumed to know the law—including what conduct qualifies as "engag[ing] in criminal behavior." See Woods, 107 Vt. at 356–57, 179 A. at 2 (...
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