State v. Wheelock
| Citation | 2023 VT 52 |
| Docket Number | 22-AP-231 |
| Decision Date | 08 September 2023 |
| Parties | State of Vermont v. William F. Wheelock III |
| Court | United States State Supreme Court of Vermont |
On Appeal from Superior Court, Windsor Unit, Criminal Division Paul F. Hudson, J.
Evan Meenan, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Seibert Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton and Cohen, JJ., and Johnson, J. (Ret.), and Grearson, Supr. J., (Ret.), Specially Assigned
¶ 1. In October 1987, defendant William Wheelock III shot and killed James Brillon with a .410 caliber shotgun. He was convicted by a jury of second-degree murder and sentenced to seventeen-years-to-life, with a split sentence to serve seventeen years. Following defendant's release from probation in 1999, his Vermont probation officer (PO) filed three separate violation-of-probation (VOP) complaints against him in 1999, 2002, and 2003. In 2004, after the third VOP complaint was filed the year before, the VOP court concluded that defendant violated three probation conditions revoked probation, and imposed the original sentence of life imprisonment. Defendant has remained incarcerated since his 2003 arrest on the most recent VOP complaint, more than twenty years ago. In April 2018, defendant filed a petition for post-conviction relief (PCR), arguing that his attorney rendered ineffective assistance by failing to appeal the 2004 revocation decision. The PCR court granted the petition and permitted defendant to appeal the 2004 violations and revocation of probation to this Court. On appeal, we affirm the probation violations and reverse and remand the court's revocation of probation.
¶ 2. On appeal, defendant challenges both the VOP court's probation-violation findings and its revocation of probation, arguing that the court erred by (1) violating him for not completing treatment without making a finding defendant's participated unsatisfactorily in treatment and (2) finding that defendant was actively using alcohol and drugs and that he had a history of violence.
¶ 3. This case has a long and complex history, the relevant parts of which are summarized below. As discussed above, defendant was sentenced to seventeen-years-to-life, split to serve seventeen years, with the balance suspended on probation. At sentencing in 1989, the trial court found that, at the time defendant shot the victim, defendant had been on a several-monthlong binge on alcohol and drugs, and that his actions were directly related to his substance abuse. Ten years later, in December 1999, defendant earned conditional probationary release. The court accordingly imposed a condition prohibiting the purchase, possession, or consumption of alcohol. Three days after his release, defendant consumed alcohol, in violation of the no-alcohol condition, after which his Vermont PO filed a VOP complaint. Defendant admitted to the violation and was resentenced to twenty-one-years-to-life.
¶ 4. The first VOP court imposed new conditions, including: Condition 15, requiring defendant to "attend and participate in alcohol and/or drug screening, counseling, treatment and rehab. as directed by your P.O. and complete same to the full satisfaction of your P.O. and sign any releases about your progress in treatment"; Condition 16, requiring defendant to "attend and participate in a residential treatment program as directed by your P.O. and complete the same to the full satisfaction of your P.O."; and Condition 18, requiring defendant to "live and work only where approved by your P.O." The court also imposed Condition 22, which required defendant to "attend, participate in and successfully complete the Pathways program both in-house and aftercare." Pathways is a year-long cognitive self-change therapeutic community for violent offenders based at Northern State Correctional Facility in Newport, Vermont, where participants live in the same section of the prison, eating and interacting with one another.
¶ 5. In March 2002, defendant's PO filed the Second VOP complaint following his July 2001 removal from the Pathways program. A VOP hearing was held in July 2002, when on stipulation of the parties and the court's approval, defendant would become eligible for probation upon completion of Pathways and other requirements not relevant here.
¶ 6. In October 2002, after the second VOP complaint was filed, the VOP court issued a modified probation order, imposed the original sentence, all suspended, with probation conditions that were effectively identical to those previously imposed by the court. Defendant received a copy of the modified probation order containing these conditions, and his PO reviewed these conditions with defendant, who signed the order and stated during this review that he understood each condition.[*]
¶ 7. While the Second VOP complaint was pending, defendant attended and completed the Pathways program in September 2002. He was released to Phoenix House, a long-term residential treatment facility in Springfield, Massachusetts. His out-of-state supervision was conducted according to the Interstate Compact for the Supervision of Adult Offenders, authorized by 28 V.S.A. § 1351.
¶ 8. Phoenix House is "a residential treatment program of 9-18 months duration in a therapeutic community using behavior modification and peer contact to bring about recovery from substance abuse" that is "accredited under the Massachusetts public health laws." The court described it as "a tough program, and a hard place in which to succeed." Defendant received a copy of the program rules after applying, and he signed an acceptance that acknowledged having read and understood the rules. Defendant had already completed the Pathways program, as noted above, which he testified was "the same program [as Phoenix House], but it's not in central Springfield." Phoenix House had three "cardinal rules": no drugs, no violence or threats of violence, and no sexual contact. While at Phoenix House, defendant was supervised by a Massachusetts PO. Defendant remained at Phoenix House for four months, until January 2003.
¶ 9. In early January 2003, a "tight house," a set of stringent restrictions, was imposed on all Phoenix House residents because of suspected drug use among certain residents. Defendant, who was hospitalized for a respiratory condition shortly before the tight house commenced, was not suspected of drug use but was accused, on January 2, of importing drugs into Phoenix House. He and the other residents, who were usually permitted to have second servings during breakfast, lunch, and dinner, were allowed to have only one serving per meal during the tight house. All residents received work assignments during the tight house and all appointments between residents and probation officers were canceled. Phoenix House staff disciplined defendant during this tight house for gesturing, in violation of the tight-house communication restrictions, for a tool needed to complete a task assigned to him by his counselor.
¶ 10. On January 4, 2003, defendant was suspected of kissing another resident in violation of the "cardinal rule" against sexual contact. Staff discharged the other resident after she admitted to the kiss. Defendant refused to answer when questioned about the alleged violation. Defendant testified at the February 2004 merits hearing related to the third VOP complaint that he
¶ 11. On January 6, 2003, defendant gathered his belongings and left Phoenix House. He did not attempt to contact his PO upon departure. On January 7, the Massachusetts Interstate Compact Unit, responsible for defendant's supervision in Massachusetts, informed the Vermont authorities that defendant had left the program and asked that a warrant be issued for his arrest. The next day defendant's Vermont PO filed a third VOP complaint, along with the PO's sworn affidavit, alleging violations of Conditions 15, 16, and 18. After staying in a hotel for two days with the woman he kissed, defendant reported to probation in Massachusetts, was arrested, and returned to Vermont, waiving extradition. At the hearing on the third VOP complaint, defendant admitted that he violated one of Phoenix House's cardinal rules. Defendant also introduced evidence in his defense relevant to disposition. Defendant stated that he had quit drinking for several years, addressing the concern and principal rehabilitative purpose of the probation conditions (alcohol). He further provided that although he walked away from Phoenix House, he voluntarily turned himself in to his PO two days later.
¶ 12. The VOP court found in February 2004 that defendant violated Condition 15 by failing to complete treatment and rehabilitation in the Phoenix House program. Further, the VOP court found that defendant violated Condition 16 by eloping from Phoenix House. Finally, the VOP court found defendant violated Condition 18 when for at least two days defendant's POs did not know where defendant was. The VOP court revoked defendant's probation as a result of the violations.
¶ 13. Defendant filed a PCR petition seeking relief from the violations and revocation of probation order. Thereafter, in March 2022, the State consented to judgment in favor of defendant to permit him to appeal the 2004 order. The PCR court issued a remand order to the criminal division to permit defendant to appeal. Thereafter an appeal was filed in this Court from the violation and probation-revocation order dated July 12, 2004.
¶ 14. On appeal, defendant challenges the...
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