State of Vermont v.Thomas Gauthier

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.

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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.

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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.

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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

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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

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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

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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.

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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

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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.

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 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.