State v. Styles

State v. Styles  (96-234); 166 Vt. 615; 693 A.2d 734

[Filed 1-Apr-1997]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-234

                              MARCH TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Chittenden Circuit
Arthur G. Styles, III           }
                                }     DOCKET NO. 4572-10-94 Cncr


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

       Defendant Arthur Styles appeals a finding that he violated his
  conditions of probation and the resultant revocation of his probation.  We
  vacate and remand.

       On November 3, 1994, defendant pled nolo contendere to a charge of
  domestic assault in violation of 13 V.S.A. § 1042.  He received a sentence
  of four to twelve months, all suspended except for thirty days, and
  probation with conditions.  In a complaint dated January 29, 1996, the
  State alleged that defendant violated the following conditions:

     H:  You shall participate fully in any program to which you may
     be referred by the Court or your probation officer.
     J:  You shall not engage in threatening, violent or assaultive
     behavior.
     M:  You shall not purchase, possess or consume regulated drugs
     unless prescribed for your use by a physician.  You shall submit
     to urinalysis testing when requested by your probation officer, or
     any other person authorized by your probation officer.
     8:  You shall complete payment of your fine(s) of $17.50
     surcharge to your probation officer on a schedule determined by
     your probation officer.
     14:  Defendant is to attend DAEP.  Defendant is to attend DAY
     ONE.  Defendant is to follow all Family Abuse Orders.

       At a hearing on March 21, 1996, a police officer testified that on
  January 24, 1996 he responded to a call involving an alleged violation of a
  relief-from-abuse order.  Over defense counsel's objections, the court
  allowed the police officer to testify concerning hearsay statements made by
  the complainant and another witness, and admitted affidavits by complainant
  and the other witness into evidence.  Next, defendant's probation officer
  testified concerning defendant's attendance at DAEP and the Day One
  program, defendant's alleged violation of a restraining order, defendant's
  nonpayment of the $17.50 fine, and defendant's urinalysis tests.  Based on
  this evidence, the trial court found that defendant had violated his
  conditions of probation and revoked his probation.

       Defendant contends that the trial court erred in admitting hearsay
  evidence in a probation revocation hearing without stating on the record
  its reasons for admitting the hearsay evidence and making a finding of good
  cause.  In State v. Austin, ___ Vt. ___, ___, 685 A.2d 1076,

 

  1081 (1996), we held that "in a probation revocation hearing, a trial court
  must make an explicit finding, and must state its reasons on the record,
  whether there is good cause for dispensing with the probationer's
  confrontation right and admitting hearsay into evidence."  The trial court
  did not make explicit findings and did not state its reasons on the record
  for admitting hearsay into evidence at defendant's hearing.  Nor did the
  trial court specify which conditions of probation were violated and how
  they were violated.  We are consequently unable to determine whether the
  trial court relied on impermissible hearsay in revoking defendant's
  probation and must vacate the revocation on these grounds.

       The State nonetheless argues that the rule in Austin should not apply
  retroactively to defendant's case because (1) defendant's underlying
  criminal conviction was final before Austin was issued and (2)
  probation-revocation hearings are noncriminal proceedings to which civil
  rules of retroactivity should apply.  The State concedes, however, that the
  appeal of defendant's probation revocation was on direct review at the time
  Austin was issued.  We have previously adopted the common law rule that a
  change in law will be given effect while a case is on direct review, except
  in extraordinary cases.  State v. Shattuck, 141 Vt. 523, 529-30, 450 A.2d 1122, 1125 (1982).  This rule applies whether the proceedings are civil or
  criminal.  Id. at 529, 450 A.2d  at 1125; accord Harper v. Virginia Dep't of
  Taxation, 509 U.S. 86, 97 (1993) (rule of federal-law retroactivity is same
  in civil and criminal cases).  Thus, even if we accepted the State's
  assertion that a probation-revocation hearing is a civil proceeding for
  purposes of determining retroactivity, we would reach the same result.

       We agree with the State that there was enough nonhearsay evidence for
  the court to find that defendant violated at least one condition of
  probation.  We conclude that the proper remedy is to remand for the
  district court to issue findings of fact, relying on evidence properly
  considered under Austin, and conclusions based on those findings.  If it
  concludes that defendant violated conditions of probation, it may
  resentence in light of the violations found.

       Vacated and remanded.




                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice