State v. Whitchurch

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 89-035
 
 
State of Vermont                             Supreme Court
 
                                             On Appeal From
     v.                                      District Court of Vermont
                                             Unit No. 3, Washington Circuit
 
Gregory Whitchurch                           March Term, 1990
 
 
Michael S. Kupersmith, J.
 
Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
  Assistant Attorney General, Waterbury, for plaintiff-appellee
 
Bauer, Gravel & Watson, Burlington, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     DOOLEY, J.   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 pre-
                        sence 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 commer-
                        cial 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 rehabili-
tation, 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 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. 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 or to his rehabilitation.  In order to address this argument,
we must review the proceedings up to this point.  The original charge
against defendant was that he committed lewd acts on the body of his
daughter.  He entered into a plea agreement which specified the probation
conditions that would be imposed upon him.  The court accepted the plea
agreement and, without requesting a presentence investigation, sentenced
the defendant.  See V.R.Cr.P. 11(e)(2) (court can accept plea agreement
before ordering presentence investigation and bind itself to the sentence in
the agreement).  Because of the plea agreement, almost no  information in
support of the sentence was placed on the record.  There was an extensive
discussion between counsel and the court that showed that the probation
conditions were part of the negotiation and agreement.
     Under our precedents, the probation conditions contained in the
original sentence represent a contract between the probationer and the
court.  See State v. Foster, ___ Vt. ___, ___, 561 A.2d 107, 108 (1989).
The court may modify those conditions where the modification is sought by
the defendant.  See 28 V.S.A. { 253(a); State v. Day, 147 Vt. 93, 96, 511 A.2d 995, 997-98 (1986).  If the modification results in the probationer
escaping part of the obligation of a plea agreement after accepting its
major benefit, it may be incumbent on the court to vacate and reconsider the
whole sentence.  See In re Fadden, 148 Vt. 116, 118-19, 530 A.2d 560, 562
(1987).
     In this case, defendant used the modification procedure to attack part
of the probation conditions as unlawful.  While we find this procedure
somewhat unusual in view of defendant's plea agreement, we cannot say that
it is barred.  Nevertheless, we do not foreclose the possibility that
granting defendant the relief requested would have constituted such a breach
of the plea agreement that the original judgment and sentence could be
reopened.  See V.R.Cr.P. 11(e)(4).
     Since defendant was seeking relief here, he had the "burden of
demonstrated entitlement to relief."  Sherwin v. Hogan, 136 Vt. 606, 608,
401 A.2d 895, 896 (1979).  He failed to carry that burden by supplying a
factual record on which the court could determine the validity of the
probation condition in relation to the specific conduct involved in the
crime.  Instead, defendant attempted to ground his attack on the absence of
a record at sentencing, an absence directly caused by the fact that he
entered into a plea agreement.  It would be wholly inappropriate to ground
relief on the failure of the record to show a sufficient connection between
the offense and the probation condition where defendant's agreement to the
probation condition caused the absence of a record.  In effect, it would
shift the burden of proof on modification of probation from the defendant to
the state and the court.
     In light of the absence of a record, we must treat defendant's motion
as a facial attack on the probation condition.  He could be successful in
such an attack only if the condition could not be justified by any set of
circumstances.  In only one instance has such a facial attack been
successful in this Court.  In State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1201-02 (1985), this Court struck down a probation condition that
prohibited the defendant from being in the presence of a female person,
other than his wife, unless another adult was present.  We held that the
probation condition was so broad that compliance was beyond the defendant's
control, and thus the condition was invalid.  Id.
     Condition #21 in this case, after the trial court's amendment, is
neither overbroad nor vague.  Unlike the condition in Bubar, compliance with
this condition lies within defendant's control.  Depending upon the facts
underlying defendant's conviction, the condition meets the test of Lent and
the requirements of the applicable ABA Standard.  It is the type of
condition that has been approved by other courts.  We must assume that the
requisite factual connection is present because, as discussed above, this is
a facial attack on the condition.  There was no error in the refusal of the
trial court to strike condition #21.
     In view of our disposition of the challenge to the validity of the
probation condition, the other issue raised by defendant is irrelevant to
the outcome.  Since defendant made only a facial attack on the probation
condition, the trial court was under no obligation to develop a factual
record to support the condition.  Thus, the court's use of the records from
the juvenile case of the daughter was harmless, if error at all.
     Affirmed.
 
                                        FOR THE COURT:
 
 
 
 
                                        Associate Justice