State v. Whitchurch, 89-035

• Decision Date: 25 May 1990
• Docket Number: No. 89-035,89-035
• Citation: 155 Vt. 134,577 A.2d 690
• Parties: STATE of Vermont v. Gregory WHITCHURCH.
• Court: Vermont Supreme Court

Page 690

577 A.2d 690

155 Vt. 134

STATE of Vermont v. Gregory WHITCHURCH.

No. 89-035.

Supreme Court of Vermont.

May 25, 1990.

Motion for Reargument Denied

Sept. 5, 1990.

Jeffrey L. Amestoy, Atty. Gen., Montpelier and Thomas J. Rushford, Asst. Atty. Gen., Waterbury, for plaintiff-appellee.

Bauer, Gravel & Watson, Burlington, for defendant-appellant.

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

DOOLEY, Justice.

Defendant, Gregory Whitchurch, appeals from denial of his motion by the trial court to strike one of his probation conditions. We affirm.

On May 29, 1986 defendant was charged with lewd and lascivious conduct in violation of 13 V.S.A. § 2601. He entered a plea of nolo contendere and, pursuant to a plea agreement, consented to a suspended sentence of four to five years imprisonment. The terms of probation were included in the agreement and included the following conditions:

# 21. You shall not reside with your children nor contact your children in any manner unless approved by the probation officer approved therapist and your probation officer. In addition you shall not initiate, maintain, or establish contact with any other minor child, nor attempt to do so nor reside in the same residence with other minor children.

# 22. You shall not initiate, maintain or establish contact with any person under age of 16 years nor attempt to do so, nor reside in the same residence with such other person without permission of probation officer approved therapist and your probation officer.

The plea agreement and the probation warrant were signed by defendant.

On August 20, 1987, more than a year later, defendant sought to modify these conditions. Defendant claimed that condition # 21 was overbroad and violated his federal and state constitutional rights of due process, association and privacy. He argued that he was precluded from contacting his son, G.W., even though the son was not involved in the adjudicated offense. On November 13, 1987, defendant filed a memorandum and sought to strike probation conditions # 21 and # 22. He offered no evidence in support of this motion.

On July 18, 1988, the court denied defendant's motion to strike, but modified the conditions to read as follows:

# 21. You shall not reside with your children, nor contact your children in any manner unless approved by your probation officer.

# 22. You shall not initiate, establish or maintain contact with any minor, nor attempt to do so, nor reside in the same residence with any minor without the approval of your probation officer. The following circumstances are excepted from this condition:

(a) When the minor is in the physical presence of his/her parent or legal guardian;

(b) When the minor is engaged in a regular commercial or business activity, the defendant may engage in the normal business or commercial activity with said minor, provided the activity takes place in an area open to public view.

(c) When the defendant is present in a public area, as long as the defendant is not associating with a minor, and the public area is not one frequented mainly or exclusively by minors.

In reaching its result, the court relied in part on facts it derived from the file for the juvenile proceeding involving defendant's daughter. Because the court took judicial notice of facts from the separate juvenile case, it allowed the defendant to file a request for a hearing on the facts pursuant to V.R.E. 201(e).

In this Court, defendant claims that: (1) the lower court erred in its application of V.R.E. 201 to judicially noticed material from a juvenile case as a basis for its denial of defendant's motion to modify condition # 21; and (2) condition # 21 is invalid because it was beyond the authority of the court, based on an inadequate record and violative of defendant's constitutionally protected liberty interests. We take the issues in reverse order.

The authority for the imposition of probation conditions is contained in 28 V.S.A. § 252. That section authorizes the court to impose such conditions as it "deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist him to do so." Id. § 252(a). It goes on to authorize twelve specific types of conditions, ending with the authorization for the court to require the defendant to "[s]atisfy any other conditions reasonably related to his rehabilitation." Id. § 252(b)(13). The parties agree that if there is authority for condition # 21 in this case, the authority comes from this "catchall" provision.

In State v. Peck, 149 Vt. 617, 623, 547 A.2d 1329, 1333 (1988), we announced as a general rule that a probation condition is valid if it is reasonably related to the crime for which the defendant was convicted. Peck is based on the leading California case of People v. Lent, 15 Cal.3d 481, 541 P.2d 545, 124 Cal.Rptr. 905 (1975). Lent holds that a probation condition will be found valid unless: (1) it has no relationship to the crime for which the defendant was convicted; (2) it relates to conduct which is not itself criminal; and (3) it requires or forbids conduct which is not reasonably related to future criminality. Id. at 486, 541 P.2d at 548, 124 Cal.Rptr. at 908.

The limitations on probation conditions are also discussed in the American Bar Association, Standards for Criminal Justice 2d § 18-2.3. Section 18-2.3(e) provides that "conditions imposed by the court should be reasonably related to the purposes of sentencing, including the goal of rehabilitation, and should not be unduly restrictive of the probationer's liberty or autonomy." It goes on to provide that where fundamental rights are involved, special care should be used to avoid overbroad or vague restrictions. The section authorizes conditions that restrict the probationer from "consorting with specified types of people." Id. § 18-2.3(f)(vii).

Compliance with the requirements set forth in Lent and the ABA Standards will result in probation conditions that meet constitutional and statutory mandates. See Weissman, Constitutional Primer on Modern Probation Conditions, 8 New Eng.J. on Prison L. 367, 376 (1982) (associational restrictions supported by the evidence of reasonable relationship to crime prevention will be upheld); Greenberg, Probation Conditions and the First Amendment: When Reasonableness is Not Enough, 17 Colum.J.L. & Soc.Probs. 45, 85 (1981) (conditions should be valid if reasonably related to rehabilitation, and if not overbroad or vague). Using standards similar to those in the ABA Standards or Lent, a number of courts have upheld probation conditions similar to # 21 in this case. See, e.g., Nitz v. State, 745 P.2d 1379, 1381 (Alaska Ct.App.1987) (defendant convicted of lewd and lascivious act toward a child properly subject to probation condition that prohibited contact with his daughter and other girls under 18 years); Rodriguez v. State, 378 So.2d 7, 10 (Fla.Dist.Ct.App.1979); State v. Credeur, 328 So.2d 59, 64 (La.1976) (special probation condition that prevented contact with defendant's children reasonable where sexual abuse crime involved defendant's children); People v. McAllister, 150 A.D.2d 913, 914, 541 N.Y.S.2d 622, 622 (1989) (where defendant was convicted of sexual intercourse with his step-daughter, condition could prevent contact with his step-daughter and daughters); State v. Crocker, 96 Or.App. 111, 114-15, 771 P.2d 1026, 1027-28 (1989) (where defendant was convicted of raping his daughter, condition valid which prohibited his presence in residence or vehicle with child of either gender under 18 years); Ramaker v. State, 73 Wis.2d 563, 566, 243 N.W.2d 534, 536 (1976) (condition prohibiting association with minor children proper for defendant convicted of child molestation).

The main thrust of defendant's argument is that there is nothing in the record relating the probation condition to the crime for which defendant was convicted...