STATE v. AMIDON (2010)

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

¶ 1. Defendant appeals a district court order revoking his probation and suspended sentence for sexual assault. Defendant was cited for violating three conditions of probation: that he (1) not participate in friendships or relationships with women or men who have children under the age of eighteen, (2) abide by a curfew, and (3) not buy, have, or use any regulated drugs unless prescribed by a doctor. The court found he violated all three conditions, as well as a fourth condition requiring defendant to complete sex offender treatment. The court imposed his underlying sentence of four to ten years to serve with credit for time served.

¶ 2. Defendant's original conviction, sentence, and probation were the product of a plea agreement. In September 2008, defendant pled guilty to sexual assault. The district court found the plea to be voluntary, made with knowledge and understanding of the consequences, and with a knowing waiver of constitutional rights. Defendant was sentenced to serve four to ten years, all suspended except for two years and thirty-four days already served. Defendant was then released on probation and ordered to comply with all sex offender conditions, including the three restrictions listed above.

¶ 3. At approximately 10:30 p.m. on April 12, 2009, police arrived at defendant's residence to serve him with a “Notice Against Trespass” on behalf of Stewarts Deli, a local sandwich shop. Defendant's mother answered the door and, despite his 9:00 p.m. curfew, informed the police that defendant was not home. After his mother called to say the police were looking for him, defendant voluntarily arrived at the police station around 10:45 p.m. One of the police officers testified that defendant smelled of marijuana. After admitting that he “took a couple hits off a joint” that evening, defendant submitted to a urinalysis test-which indicated positive use of marijuana.

¶ 4. The officers also questioned defendant about his relationship with a Stewart's Deli employee named Bonnie. Defendant said he met her the previous week while buying lunch and they exchanged phone numbers. He told the officers where she lived and that he had been borrowing her car after he dropped her off at work. When asked if Bonnie had any children, defendant said that she had three children who live with their father in New Hampshire. When he learned he was going to be arrested for violating probation, defendant asked an officer to tell his mother that he had purchased roses for Bonnie, which were waiting for her in the backseat of the car.

¶ 5. At probation revocation hearings, the State has the burden of proving a violation of probation conditions by a preponderance of the evidence. 28 V.S.A. § 302(a)(4); State v. Decoteau, 2007 VT 94, ¶ 8, 182 Vt. 433, 940 A.2d 661. Any probation violation can be, within the discretion of the court, “necessary ․ and sufficient ground[s] for the revocation of probation.” 28 V.S.A. § 303(a). The court may enforce the underlying sentence if “[t]he probationer is in need of correctional treatment which can most effectively be provided if he or she is confined.” 28 V.S.A. § 303(b)(2).

¶ 6. Defendant contends the State failed to provide sufficient evidence to prove that his acquaintance Bonnie had children under the age of eighteen, thereby failing to prove a violation of the first probation condition precluding his participating in relationships with parents of minor children. The State offered no direct evidence of the children's ages, and it was possible that the three children defendant referred to were all over the age of eighteen and still living with their father in New Hampshire. Defendant knew, however, that there was no reason for the probation officer to inquire about Bonnie's children, and no reason for defendant to respond that her children lived with their father out of state, but for the condition that he not befriend women with children under eighteen. In this particular context, the court did not err by interpreting defendant's reference to “children” to mean children under the age of eighteen. The district court's conclusion-that defendant had a relationship or friendship with a woman with children under the age of 18-is “fairly and reasonably supported by ․ credible evidence [and] must stand.” State v. Austin, 165 Vt. 389, 397, 685 A.2d 1076, 1082 (1996) (quotation omitted).

¶ 7. In any event, defendant is procedurally barred from challenging the findings of violation, as he concedes his argument was neither raised during the sentencing phase, nor during the evidentiary hearing. Although issues not raised in civil proceedings are generally waived on appeal, Pope v. Town of Windsor, 140 Vt. 283, 286, 438 A.2d 388, 390 (1981) (per curiam), this Court has allowed defendants to argue insufficiency of the evidence when appealing probation violation findings and the evidence question is critical to the revocation. See State v. Decoteau, 2007 VT 94, ¶ 11, 182 Vt. 433, 940 A.2d 661 (“Because defendant's claim involves his right to confront adverse witnesses and implicates the validity of the entire proceeding, we examine whether the court committed an error that ‘strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice.’ “ (quoting State v. Ayers, 148 Vt. 421, 426, 535 A.2d 330, 333 (1987))). In Decoteau, the defendant's revocation hinged on a single probation violation: his failure to complete a required treatment program. 2007 VT 94, ¶ 3. The defendant's hearsay challenge on appeal, although belated, undermined the only probation-violation charge he faced, thus “implicat[ing] the validity of the entire proceeding.” Id. at ¶ 11. Here, defendant violated three other conditions of his probation in addition to the one violation he attacks now. Since one probation violation can be, and is here, a sufficient ground for revocation of probation, 28 V.S.A. § 303(a), defendant's lone challenge to one of four violations hardly implicates the validity of the entire proceeding. Any exception applied to allow his sufficiency of the evidence challenge affords no basis for reversal.

¶ 8. Defendant also argues that the court abused its discretion by imposing the probation condition without any nexus to defendant's underlying conviction, and that the probation condition unduly restricted his First Amendment right of association. Austin speaks directly to both of these challenges: “We hold today that a probationer is barred from raising a collateral challenge to a probation condition that he was charged with violating, where the challenge could have been raised on direct appeal from the sentencing order.” 165 Vt. at 401, 685 A.2d at 1084. In Austin, the Court dismissed defendant's constitutional and “nexus” challenges to a probation condition that required urinalysis for drug testing, which he raised only after he failed the test. Id. at 402, 685 A.2d at 1085. Here, defendant makes similar challenges to a probation condition after the court found he violated that condition. However unlikely to prevail, given defendant's agreement to these conditions as part of his original plea bargain, these challenges should have been raised on direct appeal from his sentencing order. Defendant therefore waived his right to collaterally attack a condition of his probation by failing to challenge that condition after conviction.

Affirmed.