NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: [email protected] or by mail at: Vermont Supreme Court, 109
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2016 VT 37
No. 2014-142
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Orange Unit,
Criminal Division
Thomas Gauthier February Term, 2015
Robert P. Gerety, Jr., J.
William H. Sorrell, Attorney General, and Evan Meenan, Assistant Attorney General,
Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Joshua O’Hara, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Burgess, J. (Ret.),
Specially Assigned
¶ 1. DOOLEY, J. Defendant Thomas A. Gauthier appeals from the trial court’s
order revoking his probation. Defendant argues that the probation conditions that the court
determined he had violated are unenforceable because he claims the conditions were not part of
“a certificate explicitly setting forth the conditions” of probation, as required by 28 V.S.A.
§ 252(c). Defendant also raises challenges to specific conditions, arguing that they are
contradictory or vague and not enforceable. We affirm.
¶ 2. The facts are taken from the record and are uncontested, except when indicated.
In May 2009, defendant was charged with one count of engaging in a sexual act with a person
under the age of sixteen, 13 V.S.A. § 3252(c), a felony, and one count of furnishing alcohol to a
person under the age of twenty-one, 7 V.S.A. § 658(a)(1). The charges arose from an April 2009
incident in which defendant, then age twenty, had intercourse with a fifteen-year-old girl in the
back of a car after a night of drinking alcohol and smoking marijuana.
¶ 3. In November 2009, defendant and the State entered into a deferred-sentencing
agreement. See 13 V.S.A. § 7041(a) (authorizing court to defer sentencing and place defendant
on probation under conditions). Under the terms of that agreement, the State dismissed the
furnishing-alcohol charge, defendant pleaded guilty to the sexual-act charge, and sentencing was
deferred for five years while defendant was placed on probation, which required him to conform
to several conditions. The trial court accepted the agreement in March 2010.
¶ 4. In June 2010, the State filed a violation-of-probation complaint against defendant,
alleging that he had been out of state without permission in violation of one of the conditions in
his deferred-sentence agreement. Defendant admitted the violation, and the trial court imposed
sentence at an October 2010 hearing. See id. § 7041(e) (“Upon violation of the terms of
probation or of the deferred sentence agreement, the court shall impose sentence.”).
¶ 5. At the sentencing hearing in connection with that violation of probation, the State
proposed a deal whereby the court would impose a zero-to-four-year sentence, all suspended,
and would impose the probation conditions in the original deferred-sentencing agreement as well
as “some special sex-offender treatment conditions that the Department of Corrections uses in
these types of cases.” Defendant expressed concern that the condition restricting contact with
people under the age of eighteen would interfere with his relationship with his then-nine-month-
old daughter, but ultimately accepted the State’s offer. The court imposed “a sentence of zero to
four years, all suspended with probation; the same probationary conditions that previously
existed, as well as the special sex-offender conditions that have been marked as State’s 1.”
¶ 6. The probation order issued by the court consists of one page with a two-page
attachment. The initial page lists several conditions and references “State’s 1, attached
conditions,” and the two-page attachment is labeled with a “State’s 1” exhibit sticker. The
attachment contains a list of additional conditions, and each condition is preceded by a box.
2
None of the boxes are checked. The probation order was signed by the court, defendant’s
probation officer, and defendant. Defendant did not appeal his sentence. Subsequently,
defendant filed motions to modify several conditions, including some on the attached list,
indicating that he understood he was bound by them.
¶ 7. Defendant’s probation officer filed several probation-violation complaints,
alleging defendant had accessed social media sites and pornography, possessed alcohol, been in a
place where children congregate, and violated his curfew. Defendant disputed the violations, but
did not argue that the probation order failed to provide him with proper statutory notice.
Following a contested hearing, the court found that defendant violated the following probation
conditions: (1) drinking alcohol; (2) accessing and loitering in places where children congregate;
and (3) violating his curfew. Based on these violations, the court revoked defendant’s probation.
¶ 8. On appeal from this revocation, defendant argues for the first time that the
conditions are not enforceable because the order did not meet the statutory notice requirement.
The statute requires that “[w]hen an offender is placed on probation, he or she shall be given a
certificate explicitly setting forth the conditions upon which he or she is being released.” 28
V.S.A. § 252(c). According to defendant the “special sex-offender conditions” listed on the
“State’s 1” attachment are unenforceable because the probation order did not provide him
adequate notice that he was subject to each and every one of the conditions listed, but not
checked, on that document.
¶ 9. Defendant’s challenge to the validity of the probation conditions based on alleged
noncompliance with 28 V.S.A. § 252(c) is unpreserved. Defendant did not raise this challenge in
the probation-revocation proceeding that is now on appeal.
¶ 10. In these circumstances, defendant can prevail only if there was plain error. A
claim of error rises to the level of plain error only if “(1) there is error; (2) the error is obvious;
(3) the error affects substantial rights and results in prejudice to the defendant; and (4) the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.” State v.
3
Waters, 2013 VT 109, ¶ 16,
195 Vt. 233,
87 A.3d 512. Applying these factors, we conclude
there was no plain error because even if the first element is present, the last three are not. The
error, if any, was not obvious. There was no wholescale failure to provide defendant with a
document listing his probation conditions. In fact, defendant received a probation order listing
all of the conditions. Further, defendant was not prejudiced by any failure to comply with
§ 252(c) because he was fully aware of the information that was allegedly not provided. Finally,
the error, if any, does not seriously affect “the fairness, integrity or public reputation of judicial
proceedings.” Waters,
2013 VT 109, ¶ 16. In fact, the remedy—to let defendant violate
probation conditions he agreed to—has an adverse effect on the integrity or public reputation of
the judiciary. For these reasons, defendant fails to demonstrate plain error.
¶ 11. Therefore, we turn to defendant’s arguments concerning the particular violations
of probation and the resulting revocation of his probation. A violation of probation “presents a
mixed question of law and fact.” State v. Woolbert, 2007 VT 26, ¶ 8,
181 Vt. 619,
926 A.2d 626
(mem.). The trial court makes the necessary factual findings about the probationer’s actions and
then makes a legal conclusion concerning whether those actions amounted to a violation of the
probationary terms.
Id. We affirm the factual findings if supported by credible evidence and the
legal conclusions if supported by the findings.
¶ 12. Defendant challenges the court’s conclusions that he violated the condition
prohibiting him from possessing alcohol and the condition prohibiting him from accessing and
loitering in places where children congregate. In both instances defendant does not challenge the
court’s underlying factual findings; rather, defendant asserts that those findings are insufficient
to support a violation.
¶ 13. At the outset, we emphasize that defendant’s arguments are being made in the
context of a probation-violation proceeding. We have held that a defendant 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.” State v.
4
Austin, 165 Vt. 389, 401,
685 A.2d 1076, 1084 (1996). Therefore, defendant may not
collaterally attack the conditions on a basis that could have been brought in a direct appeal.
¶ 14. Defendant’s challenges to the alcohol violation stem from the fact that the court
imposed two conditions related to alcohol—one on the main page of the probation order and a
different one in the attached list. The first condition prohibits defendant from drinking alcohol to
the extent it interferes with his employment or the welfare of his family. The second condition
prohibits defendant from purchasing, possessing, or consuming alcohol. The court concluded
that defendant violated this second more-restrictive condition when he admitted that he had
consumed alcohol. Defendant argues that the conditions are contradictory and therefore
ambiguous. According to defendant, this ambiguity should be construed against the State and in
favor of the less-restrictive condition.
¶ 15. To the extent defendant argues the conditions on their face are unenforceable
because they are contradictory and therefore vague, his challenge could have been brought in a
direct appeal and is therefore barred.
¶ 16. To the extent defendant’s argument is about lack of notice, it is not “an
impermissible collateral challenge.” See State v. Lucas, 2015 VT 92, ¶ 8, ___ Vt. ___,
129 A.3d
646 (explaining that defendant’s challenge to two similar probation conditions as providing
conflicting instruction and therefore inadequate notice was not barred). Defendant did not,
however, raise this notice argument below, and we therefore review it for plain error. See id. ¶ 9
(stating that where defendant did not raise fair-notice argument below, it would be reviewed for
plain error); see State v. Allen,
145 Vt. 593, 599,
496 A.2d 168, 171 (1985) (holding that
defendant failed to preserve notice argument related to more restrictive alcohol condition and
reviewing for plain error).
¶ 17. We conclude that there was no error, let alone plain error, in this case insofar as
the two alcohol conditions are not contradictory or ambiguous. We were faced with a similar
situation in State v. Allen. In that case, the probationer was subject to the same two alcohol
5
conditions imposed in this case. One condition prohibited the purchase, possession, or
consumption of alcohol. Allen, 145 Vt. at 598-99,
496 A.2d at 171. Another condition
prohibited him from consuming alcohol to the extent it interfered with his employment or the
welfare of his family.
Id. at 599;
496 A.2d at 171. The probation officer sought clarification
from the trial court, and the court replied that the condition prohibiting the purchase, possession,
or consumption of alcohol was to be enforced. On appeal from a violation of that condition, the
probationer argued that he did not have proper notice of the conditions imposed on him. This
Court rejected the notion that there was any ambiguity and explained that “[a]t all times” the
probationer was on notice that he was subject to the stricter alcohol condition. Id.
¶ 18. Similarly, we conclude here that there is no merit to defendant’s arguments that
the conditions were contradictory or ambiguous. Although the probation order contained two
conditions related to alcohol, the terms of the conditions are not in conflict. Defendant could
meet the requirements of both conditions simply by abiding by the stricter condition.
¶ 19. Even if there was some ambiguity or inconsistency, this does not rise to the level
of plain error since defendant has not demonstrated that any error results in “a miscarriage of
justice.” State v. Bruno, 2012 VT 79, ¶ 33,
192 Vt. 515,
60 A.3d 610 (quotation omitted)
(defining plain error). Defendant was aware at all times that both conditions had been imposed
and presents no evidence that he was confused or misled about the requirements of the
conditions. See Lucas,
2015 VT 92, ¶ 10 (holding that trial court’s enforcement of more-
restrictive residence condition did not amount to plain error where record failed to demonstrate
that two residence conditions resulted in defendant being confused or misled about content of
conditions or his obligations).
¶ 20. Defendant’s final arguments concern the violation of the condition prohibiting
him from accessing or loitering in places where children congregate by attending the Tunbridge
World’s Fair. The condition reads: “You may not access or loiter in places where children
congregate, i.e., parks, playgrounds, schools, etc., unless otherwise approved, in advance, by
6
your probation officer or designee.” At the probation-violation proceeding, defendant’s
probation officer testified that the night before the fair he sent a text message to defendant,
reminding defendant that his conditions of probation prevented defendant from attending the fair.
He further testified that he attended the fair the following day and saw defendant there.
Defendant argued that he did not receive the text from his probation officer, that he was at the
fair doing community service, and that the condition was too vague to include the fair.
¶ 21. The court found that there was sufficient evidence to support a violation. The
court found that the fair is a place where children congregate—especially on Saturday when
defendant attended—and that defendant’s probation officer did not give permission to attend the
fair. The court concluded that defendant had violated the condition by going to the fair.
¶ 22. On appeal, defendant argues for the first time that he cannot be violated for going
to the fair because the condition’s plain language provides an exclusive list of places, which does
not include fairs. Defendant’s argument hinges of the use of the prefix “i.e.” in the language of
the probation condition. This abbreviation stands for the latin “id est,” meaning “that is.”
Black’s Law Dictionary 749 (7th ed. 1999). Therefore, according to defendant, the list of places
following “i.e.” is an exhaustive explanation of the places defendant can go, as opposed to a list
that is preceded by “e.g.,” which indicates the items following it are examples. Because the list
does not include “fair,” defendant claims he was not on notice that attendance at the fair was
prohibited. Defendant did not raise this argument below, and therefore he must demonstrate
there was plain error. See State v. Butson, 2008 VT 134, ¶ 15,
185 Vt. 189,
969 A.2d 89 (setting
forth plain-error standard); see also Lucas,
2015 VT 92, ¶¶ 8-9 (explaining that lack-of-notice
argument not collaterally barred in probation-revocation proceeding, but subject to plain-error
review if not raised below).
¶ 23. There was no plain error insofar as the language of the entire condition combined
with the facts of the case provided defendant with notice that the list of places in the condition
was illustrative, and did could include a fair. Generally, as defendant correctly points out, the
7
abbreviation “i.e.” means “that is” and usually introduces explanatory information about the
phrase preceding it. This is in contrast to the abbreviation “e.g.,” which generally introduces a
nonexclusive list of examples. It does not follow, however, that the list following “i.e.” in this
case is exclusive. See Austin, 165 Vt. at 400,
685 A.2d at 1083 (explaining that probation
agreement “is not to be treated as a strait-jacket that defies common sense” (quotation omitted)).
¶ 24. When the condition is read in its entirety, it is evident that the list is meant to be
illustrative. The list has “etc.” at the end of it, indicating that there existed other places that
could satisfy the operative language “places where children congregate.” Further, this
construction makes sense. Considering that the main purpose of the condition was to preclude
defendant from accessing or loitering in places where children congregate, it is reasonable to
conclude that the list following that operative phrase was meant for purposes of example not
limitation. See United States v. MacMillen, 544 F.3d 71, 74-75 (2d Cir. 2008) (holding that list
in condition directing defendant to avoid “areas or locations where children are likely to
congregate[,] such as schools, daycare facilities, playgrounds, theme parks, arcades, recreational
facilities, and recreation parks” was “merely illustrative of the types of places where children are
likely to be”). Therefore, we conclude that the condition put defendant on notice that he was
prohibited from accessing and loitering in places where children congregate, and not just in
parks, playgrounds, and schools.
¶ 25. Further, there is no merit to defendant’s argument that the language “where
children congregate” is overly vague and thus failed to put him on notice that he was prohibited
from attending the Tunbridge Fair.1 To satisfy due process, a defendant must have notice of
1
We note that some of the cases cited by defendant involved challenges to similar
conditions on constitutional grounds as void for vagueness. See, e.g., Fitzgerald v. State, 805
N.E.2d 857, 868 (Ind. Ct. App. 2004) (holding that, as written, condition prohibiting access to
playgrounds and parks or other places children are known to congregate was overly vague and
remanding for court to reconsider and clarify). Defendant is barred from raising such a collateral
challenge in the context of this probation-violation proceeding. Therefore, we consider solely
whether the condition adequately informed him that attending the fair was prohibited. See
Lucas,
2015 VT 92, ¶ 8.
8
what acts may amount to a violation of probation. State v. Sanville, 2011 VT 34, ¶ 8,
189 Vt.
626,
22 A.3d 450 (mem.). In interpreting terms of probation, this Court looks to the common
understanding of the language used. State v. Danaher,
174 Vt. 591, ¶ 15,
819 A.2d 691 (2002)
(mem.) (explaining that defendant had fair notice that word “contact” used in probation order
meant in proximity because that was “the ordinary meaning of contact”). Congregate is
commonly used to mean to “come together in a group or crowd.” Merriam-Webster Online
Dictionary, http://www.merriam-webster.com/dictionary/congregate [https://perma.cc/EZ4T-
26FR]. As other courts have found, the phrase “where children congregate” is descriptive
enough to put a defendant on notice that it includes all places where children are likely to be
found in large numbers. See MacMillen,
544 F.3d 71, 75 (2d Cir. 2008) (holding that phrase
“areas or locations where children are likely to congregate” was not vague and list of places in
condition was merely illustrative and not exhaustive). And, as the trial court found here, the fair
is a place where children are known to gather in large numbers, especially at the time defendant
attended.
¶ 26. We are not persuaded by the cases defendant cites to support his lack-of-notice
argument because the language of the conditions in the other cases differs in significant ways
from the language in this case. In several of the cases cited by defendant the phrase “where
children congregate” follows, rather than precedes, the list of places, and for that reason courts
have found that the condition failed to provide clear instruction as to what places must be
avoided. For example, in United States v. Peterson, 248 F.3d 79, 86 (2d Cir. 2001), the court
concluded that a condition prohibiting the defendant from “being on any school grounds, child
care center, playground, park, recreational facility or in any area in which children are likely to
congregate” was overly broad because it was unclear if the phrase “area in which children are
likely to congregate” applied only to “any area,” and could be read to prohibit access to any park,
even if it was not a place children were likely to congregate. See Fitzgerald,
805 N.E.2d at 868
(concluding condition overly broad because places listed before limiting phrase “where children
9
are known to congregate” and remanding for clarification). In another case cited by defendant,
the condition prohibited lingering, loitering, or spending time at locations where children were
“present.” Ellis v. State, 470 S.E.2d 495, 496 (Ga. Ct. App. 1996). The court there concluded
this condition lacked specificity because it could be applied to prohibit the defendant “from
shopping at virtually any store.” Id.
¶ 27. The condition in this case does not suffer from either of these infirmities. The list
of illustrative places follows the operative phrase “where children congregate,” and therefore
provides a sufficient limitation on the places to be avoided. Further, the condition at issue
prohibits defendant from accessing or loitering in places where children congregate as opposed
to where they are simply present.
¶ 28. Defendant’s final contention is that the condition impermissibly delegates
authority to his probation officer. The court may not delegate the power to impose probation
conditions to a probation officer. State v. Moses, 159 Vt. 294, 300,
618 A.2d 478, 482 (1992).
The court may, however, give probation officers discretion in the implementation of probation
conditions.
Id. Defendant asserts that the condition is impermissible because it grants the
probation officer authority to give defendant permission to go to a particular place. Defendant
did not raise this challenge below, so our review is for plain error.
¶ 29. Defendant likens his situation to that presented in State v. Rivers, 2005 VT 65,
178 Vt. 180,
878 A.2d 1070. In that case, the defendant was under a condition precluding
“contact” with children under the age of sixteen without his probation officer’s prior approval.
Id. ¶ 16. This Court held that the probation officer’s instruction to defendant that he could not
attend a fair amounted to an improper delegation because the condition was so broad that it
essentially gave the probation officer authority to determine which public places the defendant
could frequent. Id. ¶ 14.
¶ 30. We conclude that there was no plain error in this case insofar as defendant fails to
demonstrate how he was prejudiced by any improper delegation in this condition. Unlike the
10
language in Rivers, the language of the condition here provided defendant with sufficient notice
that he was precluded from attending the fair. Thus, in contrast to Rivers, it was the condition
itself, imposed by the court, and not any instructions from defendant’s probation officer that set
the parameters of defendant’s conduct.
Affirmed.
Associate Justice
¶ 31. ROBINSON, J., concurring in part, dissenting in part. Insofar as the majority
holds that there was no error in this case in connection with the alcohol-related conditions
purportedly applied to defendant, I dissent from the majority’s analysis. However, I concur in
the majority’s affirmance of the trial court’s decision concerning those conditions on narrower
plain-error grounds.2
¶ 32. The probation order in this case included the following condition:
You shall not drink alcoholic beverages to the extent they
interfere with your employment or the welfare of your family,
yourself or any other person. You must submit to any alcosensor
test or any other alcohol test when your probation officer or their
designee tells you to do so.
¶ 33. The additional conditions appended to the probation order, listed but not checked,
includes the following condition:
You shall not purchase, possess or consume any alcoholic
beverages, or illegal substances, and shall enter and successfully
complete a course of substance abuse screening and/or treatment,
including residential, if so directed by your Probation Officer or
designee.
2
I concur in the Court’s conclusions that in this case the court’s enforcement of
probation conditions listed on a form next to unchecked boxes does not rise to the level of plain
error and that the probation condition prohibiting defendant from accessing places where
children congregate was sufficient to provide defendant notice with respect to his presence at the
fair on a Saturday afternoon. I express no opinion on the questions of whether this condition is
supportable in this case, is unconstitutionally overbroad, or gives rise to an impermissible
delegation of authority to defendant’s probation officer.
11
¶ 34. On the basis of his admission to having wine with dinner on more than one
occasion three years prior, the court concluded that defendant had violated the second of the
above conditions relating to alcohol consumption.
¶ 35. We have consistently recognized that due process requires that a defendant know
what conduct is forbidden before the State initiates a probation revocation proceeding. See State
v. Hammond, 172 Vt. 601, 602,
779 A.2d 73, 75 (2001) (mem.) (quoting State v. Bubar,
146 Vt.
398, 405,
505 A.2d 1197, 1201 (1985)); see also State v. Peck,
149 Vt. 617, 619,
547 A.2d 1329,
1331 (1988) (“[D]ue process requires that a convicted offender be given fair notice as to what
acts may constitute a violation of [the defendant’s] probation.”). A condition of probation must
be “so clearly implied that a probationer, in fairness, can be said to have notice of it.” State v.
Austin,
165 Vt. 389, 398,
685 A.2d 1076, 1082 (1996).
¶ 36. The first of the alcohol-related conditions in defendant’s probation order clearly
suggests to defendant, or any other reasonable probationer, that he is free to possess and
consume alcoholic beverages as long as doing so does not interfere with his employment or the
welfare of himself or other. In stark contrast, the second of these conditions—the one listed in
an appendix to the probation order that lists a host of conditions, each next to an unchecked
check-box—completely prohibits defendant from possessing or consuming any alcoholic
beverages.3 These two conditions communicate squarely inconsistent messages as to what
conduct is expected of defendant.
3
The fact that the attachment purportedly containing the second, more severe condition
lists a host of conditions next to check-boxes, all of which are unchecked, further calls into
question the enforceability of this condition. I concur with the majority that on the record in this
case, enforcement of the conditions listed in the attachment next to unchecked boxes does not
amount to plain error. Ante, ¶ 10. Prior to the violation at issue here, defendant successfully
sought to amend conditions contained on the attachment, undermining the argument that the
absence of check marks left this defendant without notice that the listed conditions applied. But
we have recognized that use of a list like this, with no specific conditions checked, creates
confusion about what conditions are actually imposed. State v. Cornell, 2014 VT 82, ¶ 7,
197 Vt. 294, 103 A3d 469. And we have held that rote imposition of standardized probation
conditions, without any consideration of their applicability in a particular case, “runs afoul of the
principles of individualized sentencing.” State v. Putnam,
2015 VT 113, ¶ 41, __ Vt. __, 130
12
¶ 37. The majority asserts that the two conditions are not contradictory or ambiguous
because defendant could meet the requirements of both conditions simply by abiding by the
stricter condition. Ante, ¶ 18.
¶ 38. While logically true, the majority’s position on this point is in tension with the
requirement that probation conditions must give a defendant fair notice of what conduct is
prohibited and what conduct is required. See State v. Sanville, 2011 VT 34, ¶¶ 9-10,
189 Vt.
626,
22 A.3d 450 (mem.). Moreover, it flies in the face of the rule of lenity, requiring us to
construe ambiguous statutes—or in this case, probation conditions—in favor of the defendant.
State v. LaBounty
2005 VT 124, ¶ 4,
179 Vt. 199,
892 A.2d 203. The question here is not
whether defendant can technically comply with one provision without running afoul of the
second, or whether the two can be parsed in a way that is logically consistent; the question is
whether the inclusion of both conditions communicates inconsistent messages about what
conduct is proscribed.
¶ 39. A California appeals court considered a similar situation in reviewing a probation
order that contained three different conditions relating to internet usage. In re Victor L., 106 Cal.
Rptr. 3d 584 (Ct. App. 2010). One condition prohibited the minor (in a juvenile case) from
accessing or participating in any social networking site; a second prohibited the minor from
using, possessing, or having access to a computer with an internet connection; and the third
prohibited the minor from using the internet without school or parental supervision. The court
noted that the second condition prohibited all internet usage, whereas the first and third
conditions contemplated that the defendant would be allowed internet access with certain
limitations.
Id. at 602. The court rejected the suggestion that in the face of overlap, the most
restrictive condition prevails, and noted that applying the second condition would render the first
and third conditions either superfluous or contradictory.
Id. The court explained:
A.3d 836. These factors render the probation order in question problematic at best, but are not
the basis for this separate opinion.
13
It appears to us that the Internet provisions—part of a pre-printed
form—were intended to provide a graduated range of conditions
restricting Internet access and were not intended to be checked off
willy-nilly in all gang-related cases. . . . We believe the form calls
for the probation officer and court to assess which level of Internet
restriction is most appropriate for the minor in each case and to
select the appropriate condition of probation accordingly.
Id. at 602-03.
¶ 40. Concluding that the overlap of the first and third conditions was neither
incomprehensible nor contradictory, but that the application of the second condition prohibiting
use or access to an internet-enabled computer alongside either or both of the other conditions
made no sense, the court concluded that all three conditions together were unconstitutionally
vague. Id. at 603. In order to remedy the inconsistency, the court narrowed the second condition
so that it only reached the act of possessing a computer with internet access, and did not purport
to restrict use or access. Id.
¶ 41. In this case, the various forms from which the State and ultimately the court have
drawn conditions likewise provide for a graduated range of conditions relating to alcohol usage
that “were not intended to be checked off willy-nilly” in all crimes of sexual violence. Id.
Inclusion of both conditions communicates inconsistent messages to a defendant concerning
what behavior is proscribed and suggests a lack of the individualized consideration required in
the imposition of probation conditions. See Putnam, 2015 VT 113, ¶ 41.
¶ 42. I do not believe this court’s analysis in State v. Allen, 145 Vt. 593,
496 A.2d 168
(1985) compels a contrary conclusion. In that case, after the court’s imposition of the two
alcohol related conditions, the defendant and the State had a dispute about the interaction of the
two conditions.
Id. at 598-99,
496 A.2d at 171. In response, the State sought clarification from
the court, which issued an order affirming that the more stringent condition applied. In the
context of a subsequent proceeding for violation of the condition, this Court affirmed the
propriety of enforcing the more stringent of the two conditions.
Id. In Allen, before the
violation, the court specifically addressed and resolved the ambiguity arising from the inclusion
14
of the two provisions. To the extent that any language in the Court’s opinion in that case
suggests that the two provisions are not in tension and not ambiguous, it should be overruled as
inconsistent with the more rigorous scrutiny of probation conditions that has characterized this
Court’s subsequent decisions. See, e.g., Putnam, 2015 VT 113; State v. Campbell,
2015 VT 50,
__ Vt. __,
120 A.3d 1148; State v. Bostwick,
2014 VT 97,
197 Vt. 345,
103 A.3d 476.
¶ 43. Because the error in imposing inconsistent probation conditions concerning
alcohol usage does not rise to the level of plain error on the record in this case, I concur in the
Court’s judgment affirming the violation of the no-alcohol condition.
¶ 44. I am authorized to state that Justice Skoglund joins this concurrence and dissent.
Associate Justice
15
