Runnels v. Doc ( 2024 )

Vermont Superior Court
Filed 03/06/23
Windsor Umt
VERMONT SUPERIOR 1?4 CIVIL DIVISION
COURT f1
Windsor Unit Case No. 22—CV—04251
12 The Green
Woodstock VT 05091
802—457—2121
wwwvermontjudiciaryorg
Leonard Runnells,]r. v. Vermont Department of Corrections
Opinion and Order on Appeal of Furlough Interruption
In this Vt. R. Civ. P. 74 appeal, Vermont inmate Leonard Runnells, J r.,
challenges a Department of Corrections (“DOC”) case-staffing decision concerning
an interruption of his furlough, pursuant to 28 V.S.A. § 724. Appellant timely filed
his appeal. The Court ordered pretrial briefing. Appellee submitted a brief;
Appellant did not. The Court held a hearing on the matter on March 2, 2023.
Appellant was present at the hearing and was represented by Emily Tredeau, Esq.
Appellee DOC was represented by Assistant Attorney General Kassie Tibbott.
Based upon this Court’s de novo review of the record and the credible evidence
admitted at the hearing, the Court makes the following determinations.
I Background, Underlying Decisions, and Trial Court Hearing
Per the Agency Record filed with this appeal, Appellant is incarcerated for,
inter alia, aggravated domestic assault. He is a Violent, listed offender. Appellant
was placed on furlough once before in 2022. Within a week of being released, he
was charged with the felony offense of Violating an abuse protection order. This
was a “significant” furlough Violation under DOC policy, and he was returned to jail.
See Directive 430.11(D)(2)(a).
He was released on furlough, again, on September 26, 2022. He had
significant conditions, including a curfew and reporting obligations. Appellant was
ordered to report to Springfield Probation Parole immediately upon release. He did
not. Nor did he report to his approved residence. He absconded and was not in
contact with DOC for over a month. At one point, community corrections officers
spied him, and he fled from them. He left Vermont without permission and went to
New Hampshire where he attempted to board an airplane. While boarding, he had
a medical emergency due to a heroin overdose and was taken to a hospital. (He may
be facing drug charges in New Hampshire in connection with those events.) After
38 days, he was apprehended by the Springfield Police.
Appellant was given a notice of suspension for various violations of his
furlough terms, all relating to keeping in contact with DOC, reporting as directed,
and abiding by his curfew. At the hearing concerning these events, Appellant did
not contest them and agreed that he had engaged in the conduct charged.
DOC staff then considered what sanction to impose. Through Directive
430.11, the DOC employs a standardized “grid” to assess the length of a person’s
interrupt.1 Staff noted that Appellant is considered a “high risk offender” under
both the ORAS and DVSIR measures. Absconding is considered a “significant”
furlough violation under Directive 430.11(D)(2)(d). The guidelines for furlough
sanctions set out in that Directive recommends a person in Appellant’s position
1 Though the grid provides some standardization, the Directive also allows staff
to consider other aggravating and mitigating factors in each case.
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receive a two-year interrupt for a second significant violation. The DOC staffing
recommended that sanction. The staffing also noted that Appellant needed to
complete domestic violence, mental health, and substance abuse counselling.
Appellant appealed.
At the hearing on appeal, Appellant testified. He credibly testified that,
during the time he did not report, he had a number of overdoses and needed to be
revived with Narcan. He also completed a 14-day program at Valley Vista and had
lined up employment. He has not been charged with new crimes for the period he
did not report. He has a significant substance abuse disorder and multiple mental
health diagnoses. The Court did not find persuasive the remainder of Appellant’s
testimony.
II. Standards
Vermont law provides that DOC may release an inmate from prison and
place him or her on community supervision furlough if the inmate has served his or
her minimum sentence and agrees to comply with such conditions as DOC, in its
sole discretion, deems appropriate. 28 V.S.A. § 723(a). The inmate’s continuation
on furlough is “conditioned on the offender’s commitment to and satisfactory
progress in his or her reentry program and on the offender’s compliance with any
terms and conditions identified by the Department.” Id. §723(b). If the offender
commits a “technical violation,” which is defined as “a violation of conditions of
furlough that does not constitute a new crime,” DOC considers whether to impose a
sanction. If DOC believes the conduct warrants an “interruption” or “revocation” of
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the furlough, DOC must hold “a Department Central Office case staffing review” to
determine the length of the sanction. Id. §724(b).
An offender whose community supervision furlough is revoked or interrupted
for 90 days or longer based on a “technical violation” has a right to appeal DOC’s
determination to the Superior Court under Vt. R. Civ. P. 74. The appeal must be
“based on a de novo review of the record,” the appellant “may offer testimony, and
the Court, in its discretion and for good cause shown, “may accept additional
evidence to supplement the record.” Id. §724(c).
The law provides that “[t]he appellant shall have the burden of proving by a
preponderance of the evidence that the Department abused its discretion in
imposing a furlough revocation or interruption for 90 days or longer....” Id. The
statute provides certain guideposts for analyzing whether the Department has
abused its discretion:
It shall be abuse of the Department’s discretion to revoke furlough or
interrupt furlough status for 90 days or longer for a technical violation,
unless:
(A) The offender's risk to reoffend can no longer be adequately controlled
in the community, and no other method to control noncompliance is
suitable.
(B) The violation or pattern of violations indicate the offender poses a
danger to others.
(C) The offender’s violation is absconding from community supervision
furlough. As used in this subdivision, “absconding” means:
(i) the offender has not met supervision requirements, cannot be located
with reasonable efforts, and has not made contact with Department
staff within three days if convicted of a listed crime as defined in 13
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V.S.A. § 5301(7) or seven days if convicted of a crime not listed in 13
V.S.A. § 5301(7);
(ii) the offender flees from Department staff or law enforcement; or
(iii) the offender left the State without Department authorization.
Id. §724(d)(2).
The statute notes that the appeal is expressly:
limited to determine whether the decision to interrupt or revoke an
offender’s community supervision furlough status was an abuse of
discretion by the Department based on the criteria set forth in
subdivision (d)(2) of this section. The length of interruption or
revocation may be a consideration in the abuse of discretion
determination.
Id. at §724(c)(2).
Importantly from the Court’s perspective, while the Court performs a de novo
review of the record and can consider additional evidence, the overarching standard
of review in the statute remains one of abuse of discretion. The Court is not to
substitute its judgment for that of DOC. See, e.g., Turner v. Roman Cath. Diocese,
2009 VT 101, ¶ 14, 186 Vt. 396, 408 (“Under an abuse-of-discretion standard, we do
not substitute our judgment for that of the trial court….”). An abuse of discretion is
established where “an agency has declined to exercise its discretion or has done so
on untenable or unreasonable grounds.” In re Joyce, 2018 VT 90, ¶ 12, 208 Vt. 226,
232 (internal quotation omitted); see State v. Gurung, 2020 VT 108, ¶ 36, 214 Vt. 17,
31.
With those guideposts in mind, the Court turns to the instant appeal.
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III. Analysis
The Court’s review of the agency record thoroughly supports the DOC’s
determination, and Appellant has failed to persuade the Court that the DOC abused
its discretion. Appellant’s first crack at furlough in 2022 ended with a significant
violation and a return to jail only roughly a week after he was released. Those
incidents were within a year of these events. After being released from jail this
second time, Appellant failed to report as directed, fled from community corrections
officers, left the state without permission, attempted to board a plane in New
Hampshire, overdosed, and was without contact with DOC for thirty-eight days
prior to his capture.2
Given those determinations, the Court concludes that DOC acted within its
discretion in determining that the violation showed that Appellant had absconded
from supervision. 28 V.S.A. § 724(d)(2)(C). DOC’s decision to interrupt for this
“technical violation” was, thus, tethered to appropriate considerations and did not
go beyond its grant of authority. See In re Joyce, 2018 VT 90, ¶ 12, 208 Vt. at 232
(internal quotation omitted); State v. Gurung, 2020 VT 108, ¶ 36, 214 Vt. at 31.
Indeed, Appellant does not contest that point on appeal.
Similarly, DOC did not abuse its discretion in the length of the interrupt.
The record shows that Appellant is a high-risk offender per his ORAS and DVSIR
scores who engaged in the significant misconduct of absconding. Directive
2Neither side disputes that the charges here amount to “technical violations,”
which fall within the scope of Section 724.
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430.11(D)(2)(d). Further, this was Appellant’s second significant furlough violation
in a fairly short period. The DOC employs a penological tool under Directive 430.11
to guide it in assessing appropriate responses to varying and multi-faceted furlough
violations of furloughees. The Court believes the DOC’s decision to rely upon such a
tool falls within its core penological mission is entitled to some deference. See, e.g,
Town of Killington v. Dep’t of Taxes, 2003 VT 88, ¶ 5, 176 Vt. 70, 72 (deference
afforded agencies on complicated matters “within the agency’s area of expertise”).
Based on the above objective factors, the Directive recommended a two-year
interrupt. The Court cannot conclude the use of such an objective tool falls outside
of the discretionary judgment afforded DOC, and Appellant has not made a
persuasive argument to the contrary here.
Even if the Court were to consider the exercise of discretion in the absence of
Directive 430.11’s guidance, Appellant has not shown that a two-year interrupt
would be an abuse of discretion in light of: the criminal history noted above, the
nature of violation, how early it occurred following his release, how long he
absconded, his prior significant furlough violation, and in light of the documented
needs noted by staff for domestic violence, mental health and substance abuse
programming. Given those record facts, the Court finds that DOC did not exercise
its discretion “on untenable or unreasonable grounds.” In re Joyce, 2018 VT 90, ¶
12, 208 Vt. at 232 (internal quotation omitted).
Nor does Appellant’s hearing testimony warrant a different result. Appellant
is to be commended for completing Valley Vista and for finding employment. No
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doubt, his underlying conditions contributed to the actions he engaged in here.
Those points, however, do not obviate the significant, repeated, and lengthy
misconduct established by the record concerning this furlough release. Nor do they
lessen the concern raised by the fact that this was Appellant’s second significant
furlough violation with a year period. While the Court commends Appellant for the
efforts he highlighted, the remaining record persuades the Court that the DOC did
not abuse its discretion in setting a two-year interrupt.
Electronically signed on Friday, March 3, 2023, pursuant to V.R.E.F. 9(d).
Vermont Su erior Court - .
Fflgd 03/06/23T othy . Tomas1
Wind”? Unit
Superior Court Judge