State v. Bryan Love

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 by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2017 VT 66
No. 2016-195
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Criminal Division
Bryan Love September Term, 2016
David A. Howard, J.
Jonathan Ward, Bennington County Deputy State’s Attorney, Bennington, for Plaintiff-Appellee.
Peter F. Langrock and Devin McLaughlin of Langrock Sperry & Wool, LLP, Middlebury, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. DOOLEY, J. In this appeal, we consider defendant’s request, over the State’s
objection, to have his probation obligations terminated and his criminal convictions expunged
halfway through his stipulated deferred-sentence term. The trial court concluded that it had no
authority to grant such relief. We agree, and therefore affirm the trial court’s decision.
¶ 2. The record indicates the following. In December 2012, defendant was charged with
two felony counts of lewd and lascivious conduct with a child, and he faced the possibility of
significant jail time. By virtue of a plea agreement with the State, defendant instead pled guilty to
two misdemeanor counts of prohibited acts, with a “4 year deferred sentence.” The deferred
sentence required the State’s consent, and it gave defendant the opportunity to avoid criminal
convictions on these counts altogether. See 13 V.S.A. § 7041(a) (stating that “court may defer
sentencing and place the respondent on probation upon such terms and conditions as it may require
if a written agreement concerning the deferring of sentence is entered into between the state’s
attorney and the respondent and filed with the clerk of the court”). If defendant fulfilled “the terms
of probation and of the deferred sentence agreement,” the court would “strike the adjudication of
guilt and discharge” him. Id. § 7041(e). If he violated “the terms of probation or of the deferred
sentence agreement,” he would be sentenced. Id. As part of his plea agreement, defendant also
agreed that he would “not appeal his substantiation by DCF of the conduct at issue in this case.”
When the trial court accepted defendant’s plea agreement, that agreement became binding on the
court and the parties. See V.R.Cr.P. 11(e)(2), (3).
¶ 3. To effectuate the plea agreement, the parties executed a deferred-sentence
agreement using a standardized form. As indicated above, the deferred-sentence agreement was
entered into by the state’s attorney and defendant pursuant to 13 V.S.A. § 7041(a). It was not
established by the alternative route provided in 13 V.S.A. § 7041(b), which authorizes a court to
defer sentencing and place the respondent on probation without a written agreement between the
state’s attorney and the respondent under certain conditions, none of which are present in this case.
This deferred-sentence agreement required the authorization or approval of the state’s attorney.
¶ 4. Like the plea agreement, this agreement identified the term of the deferred sentence
as “4 years and 0 months,” and provided more specifically that “the duration of this deferred
sentence agreement is from 3/30/2014 to 3/29/2018.” Defendant agreed to abide by the
agreement’s terms, and further agreed that “[d]uring the period that this deferred sentence is in
effect,” he would abide by specified probation conditions, including sex offender conditions. The
court signed the agreement, affirming preprinted language that: “[b]ased on the foregoing, a
Deferred Sentence is ORDERED pursuant to 13 V.S.A. § 7041. The defendant is placed on
probation in the care and custody of the Commissioner of Corrections until further order of the
Court.” Defendant acknowledged that if he violated the conditions of the deferred sentence, the
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court would impose sentence. If he fulfilled the terms of probation and the deferred-sentence
agreement, the court would “strike the adjudication of guilty and discharge the defendant. Upon
discharge, the record of the criminal proceedings shall be expunged.”
¶ 5. Defendant also signed a deferred-sentence probation order. This order provided an
expiration date for defendant’s “Deferred Sentence Term,” although it referenced a plainly
incorrect date of February 29, 1900. The order reiterated that defendant was “placed on probation
in the care and custody of the Commissioner of Corrections for the term(s) as shown above.”1
¶ 6. Two years after executing these agreements, defendant sought to reduce the length
of his deferred-sentence term, although he labeled his request a motion to “shorten probation.”
Apart from the legal issue, defendant summarized why the court should exercise its discretion to
reduce the deferment period and terminate probation. He argued that the extensive probation
conditions greatly restricted his ability to find a job because they prohibited contact with children,
out-of-state travel, and computer use. Defendant also argued that in one instance the presence of
the convictions excluded him from consideration for a job. Defendant maintained that requiring
him to complete the four-year term to which he had agreed was “a matter of form and serve[d] no
useful purpose.”2
1
The form also stated incorrectly that if defendant failed to follow the probation
conditions, the court “might” require him “to serve his full sentence in jail.” Defendant, of course,
had not yet been sentenced, but if he did violate the terms of probation, the court was required to
impose sentence. See 13 V.S.A. § 7041(e) (“Upon violation of the terms of probation or of the
deferred sentence agreement, the court shall impose sentence.” (emphasis added)); see also State
v. Rafuse, 168 Vt. 631, 632-33, 726 A.2d 18, 19-20 (1998) (mem.) (holding that language in
§ 7041 is mandatory, and that probation law, 28 V.S.A. § 304, which affords court discretion in
deciding whether to revoke probation, does not apply).
2
In the trial court, defendant sought only a discharge from probation without specifying
what the discharge would do to the deferred sentence. He did not argue that the period of deferment
should be shortened and the conviction expunged at the end of the shortened deferment period,
and, as a result, the trial court never considered this additional remedy. It became clear in the
argument to this Court that defendant expected that the shortening of the deferment period and the
expungement of the conviction would automatically flow from the shortening of the probation
term. Thus, we have considered both remedies.
3
¶ 7. The State opposed defendant’s request, arguing that defendant had agreed to defer
sentencing for four years, and because that period had not passed, he had not fulfilled the terms of
his agreement and could not be discharged pursuant to 13 V.S.A. § 7041. While the State did not
object to defendant’s attempt to repudiate his agreement, it asserted that the only recourse would
be for the court to impose sentence and place permanent criminal convictions on defendant’s
record. The trial court denied defendant’s motion, concluding that it lacked authority to grant the
requested relief.3 Defendant appeals from this decision.
¶ 8. Defendant asserts that the court erred in concluding that it could not discharge him
from probation prior to the expiration of the four-year deferred-sentence term. According to
defendant, there is nothing in the deferred-sentencing law that prohibits early discharge from
probation, and thus, 28 V.S.A. § 251—the statute that authorizes early discharge from probation
when the court finds that it is “warranted by the conduct of the offender and the ends of justice”—
controls. Defendant asserts that ordinary probationers can be discharged early despite having
agreed to a fixed term of probation, and the same is true in the deferred-sentencing context. He
argues that such early discharge was acknowledged as appropriate in State v. Murray, 159 Vt. 198,
617 A.2d 135 (1992), and that he retained the right to such relief unless he explicitly waived it.
Defendant also asserts that because he was placed on probation “until further order of the court,”
the court may discharge him at any time. Finally, as we note in footnote two, defendant argues
that the shortening of the period of probation should automatically shorten the period of deferment
and the accompanying period for expungement because the deferment serves no purpose once the
period of probation is shortened and ended.
¶ 9. Before we reach the analysis in this case, it is helpful to lay out a roadmap for this
decision. We address only circumstances under a deferred-sentence agreement where the State
3
The trial court never considered whether it would grant the relief requested if it had the
power to do so.
4
does not consent to either a reduction of the term of sentence deferment or a reduction of the period
of probation, the circumstances present in this case. We do not address the trial court’s authority
when the State and the defendant agree on a reduction of the period of probation or deferment or
both.4
¶ 10. Defendant argues that he should prevail without the consent of the State, first, under
the statutory language, and second, under the specific language of the deferred-sentence order in
this case. Although we use the word “prevail,” defendant has argued for two levels of success:
(1) complete success under which the trial court can shorten both his period of probation and the
period of deferment, or (2) a partial success under which the trial court can shorten the period of
probation if it decides a reduced period is appropriate, but cannot reduce the period of deferment
to advance the date of expungement of the conviction. We examine first whether defendant can
prevail at either of these levels under the statutes, without consideration of the language of the
deferred-sentence order. Thereafter, we consider the effect of the language of the deferred-
sentence order.
¶ 11. We recognize that there may be variations in these outcomes. For example, we
could rule, as defendant argues, that a reduction in the period of probation automatically reduces
the period of deferment or, alternatively, rule that whether to shorten the period of deferment lies
within the trial court’s discretion. Because of the result of our analysis, we do not reach the
possible variations.
¶ 12. We start with the result under the applicable statutes and examine whether the trial
court could have reduced the term of deferment and order expungement based on its decision to
reduce the period of probation. We conclude it could not.
4
Because of our resolution, we do not address whether defendant could waive in the
original agreement any right to seek a reduction in the period of probation or deferment.
5
¶ 13. The deferred-sentencing law requires defendant to comply with both the term of
deferment and the probation conditions. See 13 V.S.A. § 7041(e) (stating that defendant may be
sentenced if he violates either terms of probation or terms of deferred-sentence agreement, and
adjudication of guilt will be struck if defendant complies with both terms of probation and terms
of deferred-sentence agreement). A main term of a deferred sentence is the length of deferment,
and the order and agreement in this case explicitly sets out this term. The statutes do not provide
the trial court with discretion to reduce the term of deferment.
¶ 14. There are significant aspects of the sentence-deferment law that support the absence
of an authorization for the court to reduce the term of deferment. Foremost is that the deferred
sentence can be ordered for the crimes involved here only when the State consents to the deferment
and its terms in a deferred-sentence agreement. The deferred-sentence agreement is a contract in
which the defendant has agreed to the burden of a term of deferment in return for the large benefit
of avoiding a sentence and obtaining expungement of the criminal conviction. In Murray, we
emphasized the contractual nature of a deferred sentence. 159 Vt. at 205, 617 A.2d at 139. The
issue there was whether the statute gave the court the power to lengthen the period of probation to
the five-year limit on the period of deferment authorized at that time by § 7041(a). We held that,
given the contractual nature of the deferred sentence, the court did not have such power:
Thus, a defendant may bargain with the State for certain terms and
conditions prior to entering into the agreement. To read the statute
as in all cases granting the court revocation or modification power
for five years from sentence deferral would deny the defendant and
the State the opportunity to negotiate over the term that may well be
most important to them, the duration of the probation obligation.
Murray, 159 Vt. at 203, 617 A.2d at 138. Adding a discretionary reduction of the term of
deferment over the State’s objection would be wholly inconsistent with the statutory scheme.
¶ 15. Second, the Legislature has provided a specific method for challenging a deferred-
sentence term, and it is not available in this case. Under 13 V.S.A. § 7041(d), the court may
reconsider a deferred sentence even though no sentence has actually been imposed. That remedy,
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however, has strict time limits. See id. §§ 7041(d), 7042 (motion to reconsider sentence must be
filed within ninety days); but see State v. Hance, 157 Vt. 222, 227, 596 A.2d 365, 368 (1991)
(recognizing “limited usefulness of sentence reconsideration when the sentence is based on a plea
agreement”).5 Defendant did not seek modification of his deferred-sentence term within ninety
days, and he cannot do so now.
¶ 16. Finally, we address defendant’s policy argument that the term of the probation
obligation and the term of the sentence deferment are necessarily the same, and it makes no sense
to delay the expungement of the sentence beyond the period of probation. Even if we agreed with
this policy argument, we could not implement it because the statute requires compliance with both
the terms of the deferred-sentence agreement and the terms of probation, a specification that would
be unnecessary if they imposed the same requirements. See State v. Brennan, 172 Vt. 277, 280,
775 A.2d 919, 921-22 (2001) (explaining that in construing statute, Court must “presume that all
language in a statute was drafted advisedly, and that the plain ordinary meaning of the language
used was intended,” and “[w]e must not allow a significant part of a statute to be rendered
surplusage or irrelevant” (citation omitted)).
¶ 17. In fact, the two elements involve different, albeit related, terms and consequences.
The term of deferment controls when the expungement of the conviction will occur. The term of
probation determines when the probation conditions will end. In his motion to the trial court,
defendant described the different consequences flowing from the existence of the conviction and
from the restrictions on his activities created by the probation conditions. It may appear normal in
5
Although 13 V.S.A. § 7041(d) provides that “entry of deferment of sentence shall
constitute imposition of sentence solely for the purpose of sentence review in accordance with
section 7042 of this title,” the statute does not reconcile the availability of sentence reconsideration
with the fact that no sentence is imposed at time of deferment and with the requirement of approval
by the prosecution of a sentence deferment. We need not do so here. The point is that the statute
provides a method for judicial approval for modification of a deferred sentence, however limited,
and it is not applicable here
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this case that the terms of probation and deferment would be the same, but that would not be true
if there were separate terms in the deferment agreement that were not probation conditions.6
¶ 18. Overall, we find People v. C.G., 12 P.3d 861 (Colo. App. 2000), the decision closest
to this one from another jurisdiction, persuasive here. In that case, the court considered whether a
defendant, who pled guilty pursuant to a four-year deferred judgment and sentence agreement,
should be discharged from his agreement after only two years. The prosecution opposed early
dismissal, arguing that it was not provided for in the agreement, which instead reflected the parties’
expectation that the defendant would be deterred from committing any new offenses for a full four-
year period. The trial court granted the early dismissal over the prosecution’s objection, reasoning
that a deferred judgment and sentence agreement was like probation and that trial courts possess
“general supervisory powers” to terminate the agreement early. Id. at 862.
¶ 19. The appeals court reversed. It reviewed the deferred judgment and sentencing laws,
which as in the instant case, required the State’s agreement. It recognized, as here, that “[i]t is the
defendant who is the primary beneficiary of deferred sentencing which ultimately may result in
the dismissal of the charges against him.” Id. at 863 (quotation and alteration omitted). Thus, the
question before the court was “whether a trial court, in the absence of the prosecution’s consent,
may confer this benefit sooner than provided by the agreement.” Id. The court concluded that the
law did not allow the trial court to act unilaterally, and that the court could not shorten the
6
That the terms could be different was made clear by two legislative amendments to
§ 7041. In 2002, the Legislature amended § 7041(b) to provide that a person under a deferred
sentence could “not be discharged from probation imposed under this section until restitution has
been paid in full, absent a finding of good cause by the court.” 2001, No. 134, § 2 (Adj. Sess.).
The following year, the Legislature amended the statute again by striking the language added in
2002 and instead stating that if restitution remained unpaid “the record shall not be expunged until
restitution has been paid in full, absent a finding of good cause by the court.” 2003, No. 57, § 5
(eff. July 1, 2004). The Legislature also added in § 7014(c) that nonpayment of restitution could
not be grounds for imposing sentence. Id. Essentially, through the 2003 amendment, payment of
restitution became a term of the deferred sentence but not a term of probation. The result is that
the statute specifically creates a gap between the end of probation and the expungement of the
conviction where restitution is not yet fully paid.
8
stipulated length of a deferred judgment and sentence agreement without the prosecution’s
consent. Id. It explained that the statute clearly specified that a defendant must adhere to the
stipulation and that dismissal of the charges will occur upon full compliance with the stipulated
conditions. Id. One stipulated condition was for a four-year period of law-abiding behavior by
the defendant, and that condition was not fully satisfied as of the date of the early dismissal request.
Thus, the trial court lacked authority to dismiss the case on that date without the prosecution’s
consent.
¶ 20. Given our holding that the term of deferment cannot be shortened without the
State’s consent, we next consider whether the trial court can reduce the period of probation under
28 V.S.A. § 251 based on a finding that reduction “is warranted by the conduct of the offender and
the ends of justice.” Again, we conclude that it cannot.
¶ 21. On this point, Murray identifies the applicable standard: whether the law that
defendant seeks to apply—28 V.S.A. § 251—conflicts with the deferred-sentencing statute. See
Murray, 159 Vt. at 203, 617 A.2d at 138 (“[T]he provisions governing probation in Title 28 apply
to deferred-sentence probation where there is no conflict with the specific provisions of § 7041.”).
We conclude that a conflict does exist. The deferred-sentence law does not authorize the relief
sought by defendant. With no statutory authority, defendant would have us eliminate the State’s
role in the sentence-deferment process by looking solely at the probation component of the
deferred sentence and ignoring the fundamental nature of a deferred sentence. Defendant
expressly and repeatedly agreed to a four-year deferred-sentence term and the accompanying
probation conditions and duration. He obtained a significant benefit from his agreement, and it is
fundamentally unfair to allow him to escape the agreement’s burden. It would not advance the
“ends of justice” as required by § 251.
¶ 22. Defendant twice agreed in writing to a four-year deferred-sentence term. More
specifically, he agreed to a deferred-sentence term running “from 3/30/2014 to 3/29/2018,” and he
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agreed to abide by probation conditions “during the period that this deferred sentence is in effect.”
“A deferred sentence agreement ‘is a form of contract subject to the normal rules for construction
of contracts.’ ” State v. Leach, 2003 VT 66, ¶ 8, 175 Vt. 620, 833 A.2d 1260 (mem.) (quoting
Murray, 159 Vt. at 205, 617 A.2d at 139). The parties’ agreements reflect their clear expectation
that defendant must comply with probation conditions, including sex offender conditions, for four
years. If he complied with the conditions of probation for the required period, he was entitled to
the benefit of his agreement—the court would expunge the adjudications of guilt from the record,
and he would be discharged. Where, as here, “the language of the agreement is clear, the intention
and understanding of the parties must be taken to be that which their agreement declares.” Id.
(quotation omitted).
¶ 23. There are compelling reasons to hold defendant to his bargain. If a court, at
defendant’s request, could unilaterally alter the parties’ agreement, “then the State could never be
sure it would receive the bargained-for benefits of its plea agreement.” Gou-Leonhardt v. State,
323 P.3d 700, 702 (Alaska Ct. App. 2014) (concluding that wellness court’s general authority to
“consider and reduce [a] defendant’s sentence” based on his compliance with treatment plan did
not allow court “to unilaterally alter a plea agreement that has already been accepted and
executed”). “The predictable result would be an increased reluctance on the part of the State to
make such plea agreements.” Id. Because the State’s consent is required for a deferred sentence
unless certain criteria are present, we are concerned that the result of early probation discharge
authority may be a “substantial reduction in the number of defendants” receiving deferred
sentences. Id. (reaching similar conclusion with respect to defendants’ participation in wellness
courts, which similarly requires State’s consent).
¶ 24. Having concluded that defendant is not entitled to the relief he seeks under the
terms of the applicable statutes, we turn to the wording of the deferred-sentence order in this case.
Defendant argues that the wording of the order, as presented on a preprinted court form, compels
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a different result. The form includes language that “[t]he defendant is placed on probation in the
care and custody of the Commissioner of Corrections until further order of the court,” which
defendant interprets as an authorization for the trial court to discharge defendant from probation
early under 28 V.S.A. § 251.7
¶ 25. We reject the argument that by placing defendant on probation “until further order
of the court,” the deferred-sentence order expressly recognizes defendant’s right to seek a
reduction in the term of probation. Indeed, as we held above, such an order would be illegal.
¶ 26. Moreover, there is no evidence that the boilerplate provision is intended to
implement an order that reduces the probationary term as opposed to any other order the court may
issue. Even if it contemplated a particular kind of order, the most likely one referenced is an order
revoking probation, an order specifically authorized by statute.
¶ 27. This is not a question of ambiguity. We are dealing here with the language of an
order, not an agreement, so the law concerning contract ambiguity is irrelevant. The use of rote
language such as “until further order of the court” does not authorize the court to issue any type of
order. This language could not render a subsequent order lawful if it otherwise is not. This case
is about the validity of an order that defendant seeks to reduce his period of probation and the
period of sentence deferment. Nothing in the prior order of the court answers that question.
¶ 28. On this point, we reject defendant’s assertion that this case is controlled by the dicta
in Murray or the reiteration of such dicta in a subsequent case. In Murray, the issue was whether
the court could lengthen the term of probation beyond that specified in a deferred-sentence
agreement. We held that it could not, consistent with the statute. We also addressed the State’s
argument that the deferred-sentence agreement authorized an extension of the term of probation
7
We interpret defendant’s argument with respect to the language of the sentence deferment
order as addressing only the length of his probation obligation. His position, as we stated above,
is that once the probation duration is reduced, the period of deferment is also reduced. We rejected
that position above, and nothing in defendant’s argument with respect to the sentence-deferment
order changes that decision.
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because it contained the following language that specified defendant’s agreement “to a term of
probation imposed by the Vermont District Court, until further order of the Court.” Murray, 159
Vt. at 204, 617 A.2d at 139. The State argued that the agreement language controlled even over
the specific statutory language and that the use of the word “term” meant that it specifically
addressed only the duration of the probation order. We analyzed the issue consistent with that
argument.8 The State argued that the language specifically authorized an extension of that term.
We rejected that argument:
The State’s interpretation conflicts with other language in the
agreement as well as with the court’s order. The agreement specifies
that its duration is three years, and defendant’s agreement to abide
by its terms is limited to that period. The court ordered a deferred
sentence for a period of three years.
Id. at 205, 615 A.2d at 139. These conclusions apply equally in this case where it is the State
insisting on compliance with the agreement.
¶ 29. We amplified the holding in Murray by comparing the case to State v. White, 150
Vt. 132, 549 A.2d 1069 (1988), a case in which we held that the authorization of 28 V.S.A. § 251
that the court could terminate probation at any time applied only to shortening the period of
probation. See Murray, 159 Vt. at 205, 615 A.2d at 139. Similarly, we held that the agreement
language in Murray could be applied only “to shorten, not lengthen, the probationary period.” Id.
¶ 30. Defendant particularly emphasizes the reference to shortening the probationary
period as a general authorization to reduce the probationary period even when probation is ordered
in connection with a deferred sentence. Murray cannot be read to include such a holding since it
was discussing only the effect of the agreement language, not the trial court’s power under the
statutes.
8
We did not address in Murray whether the agreement language would actually control
over the statute, and whether the use of the word “term” in the agreement language meant that the
provision dealt only with the length of the probation obligation. We do not address these issues
here.
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¶ 31. This is a critical distinction. Murray is about language in an agreement between
the parties and its effect. This case is about the language of a court order. The language in the
order in this case is different from the language in the agreement in Murray. The language in the
order before us does not use the word “term” and therefore cannot be construed as relating only to
the duration of the probation obligation. As a court order, the language clearly has a different
meaning and effect as described above. Additionally, the issue in Murray was entirely different
from the issue in this case, and any discussion of the power of the court to reduce a term of
probation was dicta.
¶ 32. We conclude that the language of the sentence deferment order does not aid
defendant’s claim that the trial court had the power to reduce the length of defendant’s probation
obligation. We thus hold that early termination of probation conditions without the State’s consent
conflicts with the provisions of § 7041 and violates defendant’s contractual obligations.
¶ 33. Given the above analysis, and because a deferred-sentence agreement requires
collaboration between the State and a defendant under § 7041(a), defendant’s concerns about the
continuing effects of the conviction and the probation conditions must be addressed through further
collaboration if the result is to eliminate or modify probation conditions in light of changing
circumstances.
Affirmed.
FOR THE COURT:
Associate Justice
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