Paper Toss Probation

In State v. Cavett, 2015 VT 91 (July 3, 2015), the Vermont Supreme Court ruled that a trial court had jurisdiction to review the Department of Corrections’ decision to remove the Defendant from a sexual treatment program when the removal resulted in a violation of the Defendant’s parole.

Issue: Defendant was convicted of sexual assault. The sentencing court imposed several conditions on his eventual probation, including Condition 34, which required him to complete the Vermont Treatment Program for Sexual Abusers (“VTPSA”). According to the rules of the VTPSA, an inmate may be removed from the program if he is physically violent. The Defendant was removed from the VTPSA when he crumpled up a discipline report and allegedly tossed it at a corrections officer, hitting her on the head. After his removal from the VTPSA, the Defendant was found to be in violation of Condition 34 of his parole. The court found that it was unable to review the Department of Corrections’ determination that the Defendant’s paper toss constituted physically violent behavior and its subsequent decision to remove him from the VTPSA. The Defendant appealed, arguing that the trial court had jurisdiction to evaluate the DOC’s decision to remove him from the VTPSA.

Holding: The Court focused on the discretionary language of Condition 34 of the Defendant’s probation, which stated that failure to complete the VTPSA “may result in the violation of [his] probation.” Pursuant to 28 V.S.A. § 303(a), a court must find substantive grounds to revoke discretionary probation. The Court determined that since violation of VTPSA’s rule against physical violence was the alleged substantive ground for revocation, the trial court had jurisdiction to review the DOC’s decision to remove the Defendant from the VTPSA. Thus, the Court reversed and remanded.