Runnels v. Doc

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