State v. Parker

State v. Parker (99-023); 170 Vt. 571; 744 A.2d 434

[Filed 15-Dec-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-023

                             NOVEMBER TERM, 1999


State of Vermont	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	District Court of Vermont,
	                               }	Unit No. 1, Windsor Circuit
Gordon G. Parker	               }
	                               }	DOCKET NO. 349-4-98 Wrcr


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


       Defendant appeals from a conditional plea of guilty to the charge of
  escape, arguing that the  Vermont Department of Corrections' furlough
  policy, upon which he claims his conviction was based,  was not promulgated
  in accordance with Vermont's Administrative Procedure Act and is therefore
  void.  We affirm.

       Defendant Gordon Parker was serving a seven-to-ten year incarcerative
  sentence when he was  placed on furlough by the Department of Corrections
  (DOC).  Defendant signed an agreement  authorizing his furlough from March
  18, 1998 to April 4, 1998, which included among its specific  conditions:

     To abide by all rules and regulations of this furlough.  Being in the 
     Furlough Program you are expected to have your whereabouts known to the 
     Community Corrections Service Center staff at all times.

     A work and activities schedule will be attached to this furlough and the 
     furloughee will be responsible for full compliance. . . .  
		
     Failure to comply with the furlough may result in immediate 
     reincarceration.  

  Directly above defendant's signature, the authorization agreement stated: 

     I have read and/or had this authorization and conditions explained to me 
     and agree to abide by them.  Failure to follow these instructions can 
     result in prosecution for Escape.


       On March 30, 1998, defendant violated his furlough when he failed to
  report to DOC offices for  rehabilitative programming and could not be
  located by DOC employees.  Defendant was charged with  escape from furlough
  under 13 V.S.A. § 1501(b)(2).  

       In July 1998, the State amended its information, charging that
  defendant "[d]id then and there,  visit a place other than that required by
  an order for furlough issued by the Vermont Department of  Corrections, as
  required by 28 V.S.A. § 808, in violation of 13 V.S.A. § 1501(b)(2)."  In
  response,  defendant filed a motion to dismiss, alleging that since the
  DOC's furlough policy - described by  defendant as Policy 601 - had not
  been promulgated pursuant to

 

  the rulemaking provisions of the Vermont Administrative Procedures Act
  (VAPA), see 3 V.S.A. § 801  et. seq., he could not be prosecuted for escape
  from furlough because the policy was void.  The State  filed an opposition
  motion in August 1998.

       In September 1998, the Windsor District Court denied defendant's
  motion, holding that he had  not shown prejudice from the application of
  DOC's policy and that, given his agreement to the  conditions of his
  furlough, there was no violation of due process.  Defendant subsequently
  entered into a  conditional plea agreement, pleading guilty to the escape
  charge but reserving his right to appeal the  denial of his motion. 
  Defendant was sentenced to a three-year term consecutive to his previous 
  sentence, and this appeal followed.

       The standard for addressing a motion to dismiss for lack of a prima
  facie case under V.R.Cr.P.  12(d) is whether, taking the evidence in the
  light most favorable to the state and excluding modifying  evidence, the
  state has produced evidence fairly and reasonably tending to show the
  defendant guilty  beyond a reasonable doubt.  See State v. Fanger, 164 Vt.
  48, 51, 665 A.2d 36, 37 (1995).  We must  determine whether the State met
  its burden in demonstrating that it had "substantial, admissible evidence 
  as to the elements of the offense challenged by the defendant's motion." 
  Id. (quoting V.R.Cr.P.  12(d)(2)).  

       Whatever the merits of defendant's vigorous contention that the DOC
  was required to follow the  VAPA in promulgating Policy 601, defendant's
  appeal here fails to answer a fundamental question: what  is the relevance
  of Policy 601 to a determination of whether the State has met its burden in
  producing  evidence fairly and reasonably tending to show that defendant is
  guilty of the charge of escape from  furlough?  The short answer is that we
  can find none.

       Defendant is unable to posit a statutory interpretation that would
  reasonably lead to the  conclusion that the Legislature intended to make
  violation of a promulgated DOC furlough policy an  element of the crime of
  escape.  The Commissioner of Corrections has statutory authority - without
  the  need to promulgate further regulations - to  

     extend the limits of the place of confinement of an inmate at any 
     correctional facility if in the judgment of the commissioner the 
     inmate will honor his trust, by authorizing the inmate under prescribed 
     conditions to visit a specifically designated place or places for a 
     period not to exceed 15 days and return to the same facility.

  28 V.S.A. § 808(a).  This statute provides ample authority for the DOC to
  place offenders on furlough  and to attach binding conditions on that
  furlough.  It does not require the DOC to adopt rules and  regulations to
  implement the statutory purposes.

       Moreover, 13 V.S.A. § 1501(b)(2) expressly grants the State the
  authority to charge furloughees  for escape:

     A person who, while in lawful custody:  
		
     (2) fails to return from furlough to the correctional facility at the 
     specified time, or visits other than the specified place, as required 
     by the order issued in accordance with section 808 of Title 28 . . . shall 
     be imprisoned for not more than five years or fined not more than 
     $1,000.00, or both.

 

  This escape statute refers only to § 808, not to any rules or regulations
  which the DOC must adopt.

       Defendant has not contested the State's evidence that he signed a
  furlough agreement advising  him of his obligation to abide by the terms of
  the agreement and informing him that "[f]ailure to follow  these
  instructions can result in prosecution for escape."  Nor, except for his
  reliance on Policy 601, has  defendant contested the sufficiency of the
  State's evidence demonstrating that on March 30, 1998,  defendant visited a
  place other than that required by an order for furlough issued by the DOC,
  as  required by 28 V.S.A. § 808, in violation of 13 V.S.A. § 1501(b)(2).

       The State met its burden of demonstrating substantial and admissible
  evidence as to the elements  of the escape offense charged.  Defendant's
  motion to dismiss was properly denied.  
	

       Affirmed.




	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice
                                          
	                              _______________________________________
	                              Denise R. Johnson, Associate Justice

	                              _______________________________________
	                              Marilyn S. Skoglund, Associate Justice