State v. Johnstone

2013 VT 57, 75 A.3d 642, 194 Vt. 230, 2013 WL 3957629, 2013 Vt. LEXIS 57

• Court: Supreme Court of Vermont
• Decided: August 2, 2013
• Docket: 2011-246
• Status: Published

Opinions

Robinson, J.

¶ 1. The critical question in this case is whether a probationer can be charged with violating a probation condition prohibiting “violent or threatening behavior” on the basis of menacing statements he made about his probation officer without any evidence that he intended for his probation officer to hear or learn of the statements. We conclude that the State’s allegations did not make out a prima facie case of a probation violation and accordingly reverse.

¶2. After pleading guilty to several charges stemming from different incidents, defendant Jason Johnstone was sentenced, in January 2011, to twenty days to serve on a work crew with the balance of his two-to-twelve-month sentence suspended with probation. One of his probation conditions, standard “Condition M,” provided, “Violent or threatening behavior is not allowed at any time.” Defendant’s probation officer testified that she reviewed the conditions with defendant on the date of sentencing and that defendant signed and acknowledged that he read and understood each condition.

¶ 3. Three months later, defendant’s probation officer filed a complaint alleging various violations of probation (VOPs). The day after his arraignment for those VOPs, defendant’s probation officer filed a second VOP complaint alleging a violation of Condition M on account of statements defendant made after the arraignment. That second VOP is the subject of this appeal.

¶ 4. The complaint alleges that following his arraignment on the first set of probation violations, while his probation officer spoke to him about the conditions the officer would be imposing, defendant was angry. Defendant said to his probation officer, among other things, “You took my [expletive] baby sitter away from me, I hope you are [expletive] happy.” There is no allegation that he threatened harm to his probation officer at that time.

¶ 5. After this exchange in the courthouse, defendant and his probation officer parted ways. The probation officer exited the court building through the back door, while defendant and his ex-girlfriend presumably left through the front. As the probation officer slowly walked toward the front of the courthouse she could hear defendant and his ex-girlfriend yelling in front of the courthouse. Defendant continued to shout expletives concerning his treatment by the probation officer and the court. The probation officer heard defendant and his ex-girlfriend talking about calling the media and the Commissioner of Corrections, and at one point heard defendant say that his probation officer was “going to end up in a body bag.” There is no allegation that defendant saw his probation officer coming up the side of the building, knew the probation officer was within earshot, or intended for his probation officer to hear the statements firsthand or even indirectly. The “body bag” comment was the basis for the second VOP.

¶ 6. Defendant moved to dismiss the second VOP complaint, relying heavily on our decision in State v. Sanville, 2011 VT 34, 189 Vt. 626, 22 A.3d 450 (mem.). In Sanville, we concluded that Condition M was too vague to fairly inform the defendant that his expression of “displeasure at a perceived injustice” — consisting of what this Court described as “mouthy and obnoxious” statements to his landlord — would subject him to a loss of freedom. Id. ¶¶ 10-11. Defendant argued that his alleged statement here was likewise nothing more than “mouthy,” “obnoxious,” and “blustering about a perceived injustice.” In light of our decision in Sanville, defendant argued, Condition M is too vague to fairly warn him that his statements were prohibited. The court denied the motion.

¶ 7. Subsequently, the parties presented the court with a proposed plea agreement pursuant to which defendant would plead guilty to a charge and admit two probation violations, and the State would dismiss the second VOP relating to the body-bag comment. When the court asked the parties about the second VOP, defense counsel explained that the agreement contemplated dismissal of that complaint because the conviction would be appealed if the VOP relating to the body-bag comment were included. The court concluded that it would reluctantly accept the proposed plea agreement if defendant admitted to the VOP relating to the body-bag statement as part of the package. The court explained, “[I]t’s' important that he take responsibility for this misconduct here. If he wants to appeal, he’s certainly welcome to do that.”

¶ 8. Defendant agreed to admit to the second VOP as part of the overall deal. In the Rule 11 colloquy between the court and defendant regarding the alleged violation, defendant admitted to the facts alleged in the second VOP complaint and the court advised defendant that, although he was giving up his right to a merits hearing on the second VOP “on those two theories that we talked about,”¹ and there would not be any further proceedings in the trial court, he was “at liberty to take an appeal if [he] want[s].” At no time did the State object to or dispute the court’s proposed extension of defendant’s right to appeal. After being told that he could appeal, defendant admitted to the second VOP complaint. The court again reiterated that he could appeal the finding of violation if he wished. This appeal followed.

I.

¶ 9. The State argues that defendant, having admitted to the violation, cannot now challenge on direct appeal the factual basis for his conviction. Defendant counters that he admitted to the violation based on the body-bag comment only after the court assured him that after his admission he could appeal the legal rulings underlying the court’s earlier refusal to dismiss the charge. If those assurances were wrong, defendant argues, his misunderstanding to the contrary rendered his admission unknowing and involuntary. In that event, the State answers, defendant’s avenue for relief is limited to a timely motion to withdraw his plea based on facts yet to be found relating to the change-of-plea proceeding, with the possibility of an appeal afterward from any adverse ruling.

¶ 10. We might be persuaded that no direct appeal lies from his change of plea if defendant were simply alleging a violation of Rule 11 change-of-plea procedures, but that is not the crux of his claim. It- is clear from the record that, instead, defendant seeks to appeal from what was, essentially, a conditional plea by which he reserved the right to appeal a contested issue of law while admitting to the facts as charged. The State did not object below to the court’s repeated assurances to defendant that, despite admitting to the factual allegations, he retained his right to appeal the court’s legal rulings upholding the charge, and the State does not now challenge defendant’s characterization of the discussions surrounding defendant’s admission of the second VOR

¶ 11. Conditional pleas reserving issues for appeal are not uncommon. Vermont Rule of Criminal Procedure 11(a)(2) provides that, “[w]ith the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty . . . , reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion.” Plea agreements are contractual in nature and are interpreted according to contract law. State v. Byrne, 149 Vt. 224, 225-26, 542 A.2d 276, 277 (1988). The parties are entitled to rely upon the express terms of the agreement. State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (1990) (mem.). Although Rule 11 refers to conditional pleas made in writing, the absence of a writing does not negate a conditional plea when “[t]he plea hearing transcript plainly shows that both parties agreed to the conditional plea, that the . . . court accepted the plea, and that the court understood its ruling on [defendant’s] motion to dismiss was the specific (and dispositive) issue for appeal.” United States v. Yasak, 884 F.2d 996, 1000 (7th Cir. 1989).

¶ 12. Here, the change-of-plea transcript plainly reflects the elements of the court’s offer, defendant’s acceptance, and the State’s acquiescence. The trial court would not accept the plea agreement without an admission to the second VOP, and repeatedly told defendant he could still appeal the court’s denial of his motion to dismiss. Defendant agreed. The State voiced no objection. The parties proceeded with the change-of-plea on those terms. On the whole record, there could have been no misunderstanding that defendant’s admission to the second VOP was explicitly conditioned on the reservation of his right to appeal the court’s adverse ruling on his dismissal motion. For that reason, our review of that appeal is not improper.²

II.

¶ 13. That brings us to the merits of defendant’s claim that the court erred in finding a prima facie case to support the second VOP. Defendant characterizes his behavior as merely an expression of anger about the first VOP complaint and argues that, according to Sanville, Condition M did not sufficiently notify him that his comments were prohibited.

¶ 14. We review the court’s decision against dismissing the VOP complaint under Vermont Rule of Criminal Procedure 12(d)(2), providing that a prima facie case lies when there is “substantial, admissible evidence as to the elements of the offense challenged . . . sufficient to prevent the grant of a motion for judgment of acquittal at the trial.” Accordingly, the State survives a motion to dismiss for lack of a prima facie case by showing that the evidence, taken in the light most favorable to the State, and excluding modifying evidence, can fairly and reasonably show that defendant committed the alleged violation. We consider the legal question — whether in light of Sanville and other applicable law the State’s allegations were sufficient to support a prima facie case of a violation of Condition M — de novo. See In re Crannell, 2012 VT 85, ¶ 5, 192 Vt. 406, 60 A.3d 632 (reiterating that application of governing legal standard is nondeferential question for .this Court).

¶ 15. In Sanville, we explained:

To be charged with violating probation, a defendant must have notice before the initiation of a probation revocation proceeding of what circumstances will constitute a violation of probation. Due process requires that such notice inform him as to what acts may constitute a violation of his probation, thereby subjecting him to loss of liberty. While the notice may come in the form of a probation order presented for the defendant’s signature, still, the defendant is entitled to know what conduct is forbidden before the initiation of a probation revocation proceeding.

2011 VT 34, ¶ 8 (quotations and citations omitted).

¶ 16. In that case, we considered the same probation condition • — Condition M — as we consider here. The defendant in that case had had a series of sometimes heated arguments with his landlord. Id. ¶ 3. In one exchange, the defendant said that he was going to “kick [landlord and her husband’s] butts.” Id. During a particularly heated exchange, the defendant told the landlord he was going to burn down the trailer. Id. We did not reach the question of whether verbal statements alone can constitute “threatening behavior” for the purposes of probation conditions. Id. ¶ 7. Instead, .we concluded that, as written, Condition M “did not afford [the] defendant a reasonable opportunity to know what actions were prohibited, so that he might act accordingly.” Id. ¶ 10 (quotation and alterations omitted). As in Sanville, we need not visit the question of whether verbal statements alone can violate Condition M because the notice provided by that condition to the defendant in the Sanville case is indistinguishable from that provided to defendant in this case.

¶ 17. If anything, this case is easier than Sanville — not because the suggestion that the probation officer was going to end up in a body bag was not menacing or concerning, but because, even assuming for the purposes of this analysis that verbal statements can violate Condition M, there is no allegation that defendant knew that the target of his statements was within earshot. He was “mouthing off” to his ex-girlfriend; the State has not alleged that his statements were in any way directed at anyone else. We have recognized that even an expression of a desire or plan to harm someone cannot reasonably be treated as a threat under Condition M “[wjithout a finding that [the] statement represented an actual intent to put another in fear of harm or to convey a message of actual intent to harm a third party.” State v. Miles, 2011 VT 6, ¶¶ 7-8, 189 Vt. 564, 15 A.3d 596 (mem.) (reversing VOP based on Condition M where obviously delusional individual subject to Condition M told nurse in mental health unit of state correctional facility that he wanted to kill “someone named Bill from Evergreen” and that “earth goddess” had visited him recently and told him it was okay to do so).

.¶ 18. If the State had alleged that defendant directed his comments to the probation officer, or even that he knew she was in earshot, this might be a very different case. But even accepting as true all of the allegations included in the State’s VOP complaint and admitted by defendant, those facts alone could not support a finding that defendant intended to put his probation officer in fear of harm or to convey a message of actual intent to harm her. Id.

Reversed.

1 As noted above, defendant primarily argued in connection with the motion to dismiss that, under Sanville, Condition M was too vague to encompass the kind of mouthy, obnoxious expression of opinions about a perceived injustice. The “second” theory is not entirely clear from the record. The court may have been referring to the argument that words alone cannot constitute “threatening behavior” — an argument referenced in the court’s decision, but not argued by defendant on appeal.

2 Defendant argues that his guilty plea should be vacated because it was not made knowingly and voluntarily. In particular, defendant argues that he admitted to the VOP in reliance on the court’s advice that he could still appeal the legal basis for the VOP; to the extent that he could not actually appeal because his plea effectively waived his right to appeal, his guilty plea was involuntary. Because we conclude that defendant’s plea was conditional and did expressly reserve his right to appeal the legal basis for the VOP, we need not address defendant’s argument.