State v. Woolbert

• Decision Date: 02 April 2007
• Docket Number: No. 05-339.,05-339.
• Citation: 926 A.2d 626,2007 VT 26
• Parties: STATE of Vermont v. Larry WOOLBERT.
• Court: Vermont Supreme Court

926 A.2d 626

2007 VT 26

STATE of Vermont v. Larry WOOLBERT.

No. 05-339.

Supreme Court of Vermont.

April 2, 2007.

Motion for Reargument Denied May 2, 2007.

Present: REIBER, C.J., and DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Defendant appeals an order of the trial court that he engaged in "violent or threatening behavior" contrary to his conditions of probation. Additionally, defendant argues that the trial court did not have the authority to modify both the "to serve" portion of defendant's sentence and the conditions of his probation. We affirm.

¶ 2. In 2004, defendant pleaded guilty to sexual assault on a minor and was sentenced to serve eight to twelve years with all but fourteen months of the sentence suspended. As part of his sentence, defendant was placed on probation, which applied while he was incarcerated. In March 2005, the State filed a probation violation complaint, alleging that defendant had engaged in "[v]iolent [or] threatening behavior" contrary to his probationary terms.

¶ 3. Following a hearing, the district court found that defendant had violated a condition of probation prohibiting "violent or threatening behavior." The court revoked defendant's probation and increased defendant's time to serve to forty-four months. The court reimposed probation and added two additional conditions: that defendant successfully complete sex-offender treatment while incarcerated and that he not incur any major disciplinary reports (DRs).

¶ 4. At the hearing, the State presented the following evidence of a February 2005 incident from which two DRs arose: testimony of a witness to the incident, testimony of the hearing officer for the incident, and a videotape of the incident. Of the two DRs defendant received, one was for assault. The State's probation violation complaint for "violent or threatening behavior" arose from the report for assault.¹

¶ 5. The living unit supervisor, Lynn Roberto, described the February 2005 incident as follows. Defendant and three other inmates refused to turn in their bed sheets for laundering. After being warned that they would be disciplined, the three other inmates complied. Defendant, however, continued to refuse, and barricaded himself in his cell with his mattress and sheets piled up against the door. This conduct resulted in a verbal confrontation with two guards during which defendant threw his sheets at the officers. Due to his refusal to cooperate, the officers decided to transfer him to another unit. Defendant thereafter refused to leave his cell. He was profane, disruptive, and physically resistant throughout this process (referred to as a "cell extraction"), and had to be restrained. Supervisor Roberto testified that defendant "was yelling, he was screaming, [and] he was trying to kick" during the extraction. For this reason, two additional officers were called in for back-up; ultimately it took four officers to restrain defendant using a "restraint chair."

¶ 6. The State next called Supervisor Mark Boutanis, who served as the hearing officer for the February 2005 incident. Supervisor Boutanis testified that during the extraction defendant kicked and injured another supervisor.

¶ 7. In addition to this testimony, the district court viewed a videotape of the entire cell extraction. The tape depicts an altercation spanning some seven to ten minutes in which defendant engages in numerous outbursts of physical resistance, interrupted by quiet periods in which he is held in physical check while additional guards are called. Based on all the evidence the district court found that defendant had been "assaultive and violent" in the course of being unreasonably reactive and resistant when asked to turn over his bed sheets. Noting that defendant had, among other things, kicked an officer, the court concluded that the State had met its burden. On appeal, defendant argues that while his conduct was noncompliant, it was not "violent or threatening" such that he violated his probation.

¶ 8. The district court's conclusion that defendant violated his probation presents a mixed question of law and fact. State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996). We have recognized that in establishing a violation of probation the trial court must first make a factual determination of the probationer's actions, and then make an "implicit legal conclusion" that the probationer's actions violated his probationary terms. Id. If supported by credible evidence, the trial court's factual findings must stand. Id. If supported by its findings, the court's legal conclusions must also stand. Id.

¶ 9. The district court's finding that defendant was violent and assaultive during an incident in which he kicked an officer is supported by the evidence. Trial courts are in a unique position to assess the credibility of witnesses. Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998). It is not our role to second-guess a court's decision as to whom to believe; rather, our duty is to ensure that the court's findings are supported by the evidence. Here, the evidence of defendant's behavior during his escalating resistance to direct orders—including testimony that he kicked an officer—supports the factual and legal determination that he was "violent or threatening." Unlike the concurrence, we are not persuaded that the videotape of defendant's ongoing resistance, including his repeated attempts to kick and writhe free of the guards, significantly contradicts the testimony relied on by the trial court and summarized herein. The record in this case, taken as a whole, supports the conclusion that this was an instance of substantial and repeated physical force beyond mere yelling or intimidating behavior. Cf. State v. Lee, No.2000-062, slip op. at 2, 172 Vt. 639, 772 A.2d 150 (Vt. Mar. 28, 2001) (unreported mem.) (finding defendant had not violated his conditions of probation when he followed and frightened his former partner in public).

¶ 10. Defendant's second argument is that the court did not have the authority, after revoking his probation, to both increase the portion of his sentence to serve and reimpose his probation with added conditions. Defendant argues that although the power to take each of these actions is granted by separate subsections of 28 V.S.A. § 304(b), the powers are not cumulative because the statute uses the word "or" after each. We find no reason why the powers contained in § 304(b) must be mutually exclusive. In any event, as the State points out, the court's authority to add probation conditions is also granted by 28 V.S.A. § 253(a), and there is no indication in that section that it cannot be used along with other powers. We conclude that the court was within its authority to impose the sentence it did.

Affirmed.

SKOGLUND, J., concurring.

¶ 11. I concur in the result because the evidence does support a finding that defendant exhibited threatening and violent behavior. However, I do not believe credible evidence supports a finding that defendant demonstrated threatening or violent behavior during the event relied upon by the majority, and so I write separately to explain my disagreement with that holding and my concerns with the evidence.

¶ 12. In this case, the majority relies on "violent or threatening behavior" by defendant while four guards forcibly extracted him from his cell and transferred him to another unit because he had disobeyed a rule regarding the laundering of bed sheets. I agree that the defendant was verbally resistant to orders, causing a guard to threaten him with chemical spray before defendant went down on his knees, placed his forehead against the wall, and put his hands behind his back to be handcuffed. During the course of the cell extraction, defendant apparently kicked an officer and struggled against the four officers transporting him. While defendant is clearly responsible for his physical and verbal defiance in this situation, I ask who was threatened, and was his resistance actually violent behavior? I believe the line between noncompliance with institutional regulations and correctional staff— what the witnesses termed not being a "good inmate"—and "violent or threatening behavior" justifying the revocation of probation is not clearly delineated by either the trial court or the majority opinion.

¶13. To be charged with violating probation, a probationer must be told, when probation is imposed, what circumstances will constitute a violation. State v. Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75 (2001) (mem.) ("[D]efendant is entitled to know what conduct is forbidden before the initiation of a probation revocation proceeding." (quotations omitted)). "`[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. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996) (quoting State v. Peck, 149 Vt. 617, 619, 547 A.2d 1329, 1331 (1988)). Here, defendant was told that violent or threatening behavior would violate his probation contract. The correctional witnesses testified that defendant's behavior was threatening because it disrupted the orderly operation of the correctional facility. As this case demonstrates, an explanation of when an act of disobedience or noncompliance with prison rules will be considered an act of aggression properly characterized as "violent or threatening behavior" was necessary.

¶ 14. The State charged defendant with violating his probation by receiving at least fourteen DRs in thirteen months, including DRs for "assault, disruptive behavior, agitating, provoking, failure to abide, and improper hygiene." One of these was the February 28 incident that began with a dispute over laundry, which I will discuss later. I begin with the one incident that I believe does support a violation of probation finding because it demonstrated violent and threatening behavior.

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