State v. Urban

• Decision Date: 23 February 2018
• Docket Number: No. 17–098,17–098
• Citation: 184 A.3d 731
• Parties: STATE of Vermont v. Landon T. URBAN
• Court: Vermont Supreme Court

184 A.3d 731

STATE of Vermont

v.Landon T. URBAN

No. 17–098

Supreme Court of Vermont.

December Term, 2017

February 23, 2018

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

Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant.

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

EATON, J.

¶ 1. Defendant appeals from the trial court's imposition of probationary conditions in connection with a plea agreement. He contends a condition forbidding the purchase, possession, or consumption of alcohol, to which he objected at sentencing, violates public policy or is unduly restrictive. He further contends, for various reasons, that additional conditions to which he agreed in the plea agreement should be modified or vacated. We affirm.

¶ 2. In May 2016, defendant was charged with aggravated assault with a deadly weapon and simple assault arising from an altercation at a mud bog event in Ferrisburgh. The arresting officer's affidavit indicated defendant appeared extremely intoxicated when the officer spoke with him shortly after the incident. The charges were tried to a jury in September 2016, resulting in a conviction on the simple assault count. The jury was unable to reach a verdict on the count alleging aggravated assault. In February 2017, the parties reached a plea agreement wherein defendant agreed to plead nolo contendere to the aggravated assault charge in exchange for concurrent sentences on both the aggravated assault and the simple assault charges. The plea agreement provided that a portion of the sentences was suspended, and defendant was placed on probation for a period of two years.

¶ 3. In the plea agreement, defendant reserved the right to challenge the imposition of a condition prohibiting him from purchasing, possessing, or using alcohol should the court elect to impose it. The plea agreement provided for the imposition of other probationary conditions, which defendant agreed were "final" both in the written agreement and orally at sentencing. Defendant also stipulated in the plea agreement that he was not an alcoholic. The court imposed the sentence specified in the plea agreement, including the "no-alcohol" condition,¹ to which defendant continued to object, and the other probationary conditions called for in the plea agreement to which he did not object. Defendant contended the no-alcohol condition could no longer be imposed based upon this Court's recent decision in State v. Albarelli, 2016 VT 119, ¶ 60, 203 Vt. 551, 159 A.3d 627, which relied upon public policy to strike a no-alcohol condition.²

¶ 4. The court noted at sentencing that there was "abundant reason to believe that alcohol played a significant role in [defendant's] behavior that was far out of bounds on the day in question" and that imposition of the condition would serve rehabilitative purposes. The court further stated:

Frankly, that event alone would be enough to warrant the Court's imposition of—frankly, all five of those conditions. And ... condition 1, in the absence of evidence that the defendant could not comply with it, I think would be a useful condition in assistance of the counselling that would be occurring. I think it would be—particularly with an event of this nature, leading to a felony conviction, this is an opportunity that the Court would not pass up to require Mr. Urban to re-examine his relationship with alcohol and determine what kind of healthy relationship, if any, he can have going forward. The alcohol conditions ... amply meet that concern.

While defendant had a prior record, it was never established the extent to which, if any, alcohol played a role in his prior convictions.³ Defendant appealed.

I. Defendant's Challenge to the No–Alcohol Condition

¶ 5. We consider first the challenge to the no-alcohol condition. Probation conditions must be reasonably related to the purposes of sentencing and reasonably related to the crime. Statev. Moses, 159 Vt. 294, 298, 618 A.2d 478, 481 (1992). "A condition is related to the goals of probation if it is designed, in light of the crime committed, to promote the probationer's rehabilitation and to insure the protection of the public." State v. Campbell, 2015 VT 50, ¶ 9, 199 Vt. 78, 120 A.3d 1148 (quotation omitted). Probationary conditions also must not be overly broad or vague. State v. Freeman, 2013 VT 25, ¶ 17, 193 Vt. 454, 70 A.3d 1008 (quoting State v.Whitchurch, 155 Vt. 134, 137, 577 A.2d 690, 692 (1990) ). Where a probationary condition restricts otherwise lawful conduct, the condition must also be "reasonably related to the offender's rehabilitation or necessary to reduce risk to public safety." 28 V.S.A. § 252(b)(18).

¶ 6. Defendant raises a public policy argument, echoing the Court's decision in Albarelli, and contends that a condition totally prohibiting him from having or using alcohol is unduly restrictive to his liberty when the offenses for which he was placed on probation were not alcohol offenses. Defendant stipulates that he is not an alcoholic and presented no evidence that he is an "alcohol abuser."⁴ To the extent the court believed probationary conditions were necessary to assist in defendant's rehabilitation, he argues a less restrictive alcohol condition should have been imposed.⁵ Thus, defendant argues that imposing a no-alcohol condition is unduly harsh and restrictive to his liberty if he is not an alcohol abuser, and prohibited by this Court's recent decision in State v. Albarelli, if he is. 2016 VT 119, ¶ 60, 159 A.3d 627.

¶ 7. We review the imposition of probationary conditions for abuse of discretion. State v. Putnam, 2015 VT 113, ¶ 28, 200 Vt. 257, 130 A.3d 836. "While not without limitation, a trial court's discretion [on the imposition of probation conditions] is expansive, and will generally be upheld if the condition is reasonably related to the crime for which the defendant was convicted." Campbell, 2015 VT 50, ¶ 9, 199 Vt. 78, 120 A.3d 1148 (quotation omitted); 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."). The probationary conditions will be upheld as long as "there is a reasonable basis for the court's action." State v. Savo, 141 Vt. 203, 208, 446 A.2d 786, 789 (1982). If the condition prohibits defendant from engaging in lawful behavior, the condition must be "reasonably related to ... rehabilitation or necessary to reduce risk to public safety." 28 V.S.A. § 252(b)(18) (emphasis added). "Reasonable" means not unduly harsh to achieve goals of probation. Campbell, 2015 VT 50, ¶ 9, 199 Vt. 78, 120 A.3d 1148. On appeal the burden of proof in establishing an abuse of discretion in the imposition of a probationary condition rests with defendant. Putnam, 2015 VT 113, ¶ 44, 200 Vt. 257, 130 A.3d 836.

A. The Scope of Albarelli

¶ 8. We first address the reach of Albarelli and whether a no-alcohol condition violates Vermont public policy in all circumstances. In Albarelli we struck the identical no-alcohol condition here, Condition 1, relying upon the public policy expressed by the Legislature in 18 V.S.A. § 4801(b)(1) that alcoholics and alcohol abusers "shall no longer be subjected to criminal prosecution solely because of their consumption of alcoholic beverages." 2016 VT 119, ¶ 60, 159 A.3d 627. We noted that the imposition of a no-alcohol condition "sets up for failure alcoholics and alcohol abusers" solely because of their consumption of alcohol, contrary to the protection from criminal prosecution the Legislature intended by virtue of 18 V.S.A. § 4801. Id. Accordingly, we found the no-alcohol condition in Albarelli improper because a violation of the condition would likely arise, not from defendant's delinquency, but because of his " ‘inability ... to moderate consistently his ... drinking practices in spite of the onset of a variety of consequences deleterious to his ... health.’ " Id. ¶ 61 (quoting 18 V.S.A. § 4802(2)(B) ).

¶ 9. Albarelli stopped short of finding a no-alcohol condition improper under all circumstances. It does not, as defendant asserted below, stand for the proposition that Vermont would no longer criminalize drinking. Instead, Albarelli found a no-alcohol condition to be improper when the defendant, due to his alcoholism or alcohol abuse, lacks the ability to comply with the condition.⁶ Directly imposing a no-alcohol condition upon an alcoholic or alcohol abuser sets the defendant up for a probation violation based on conduct he or she lacks the ability to control, which the Albarelli Court found directly contrary to public policy concerns for protecting alcoholics and alcohol abusers from criminal prosecution based solely on their consumption of alcohol, as expressed in 18 V.S.A. § 4801.⁷ Nothing in Albarelli suggests a person who retains the ability to comply with a condition prohibiting alcohol use cannot be subject to it if the condition is otherwise warranted.⁸ Further, Vermont's statute on probationary conditions, 28 V.S.A. § 252(b)(18), provides that a condition prohibiting the use of alcohol may be imposed if it is reasonably related to defendant's rehabilitation. A reading of Albarelli to prohibit the imposition of a no-alcohol condition in all circumstances would be directly at odds with § 252(b)(18). Thus, we conclude that Albarelli does not prohibit the imposition of a no-alcohol condition in all circumstances. It may be imposed when otherwise reasonably related to rehabilitation, so long as defendant is not an alcoholic or alcohol abuser.

¶ 10. Here, defendant stipulated he was not an alcoholic. The stipulation did not address whether defendant was an alcohol abuser and no evidence was submitted establishing the parameters of defendant's alcohol use. While the State suggested some of defendant's prior offenses were alcohol related, the court did not rely upon that representation...