Dezotell v. Deml

7ermont Superior Court
Filed 12/16/24
Orleans Unit

VERMONT SUPERIOR COURT VE CIVIL DIVISION
Orleans Unit Case No. 23-CV-05335
247 Main Street
Newport VT 05855
802-334-3305
.vermontjudiciary.org

Gordon Dezotell, Sr. v. Nick Deml

Findings, Conclusions, and Order
This Rule 74 furlough appeal came before the court for a bench trial on November 21,
2024. Appellant Gordon Dezotell, Sr., appeals the decision of the Department of Corrections to
interrupt his furlough unless and until he completes risk reduction programming. For the
reasons set forth below, judgment is entered for the Department.

Findings of Fact
Appellant is currently in the Department's custody following his conviction of and
sentencing for crimes including aggravated sexual assault. In or about June 2023, appellant was
released on community supervision furlough and agreed to abide by number of furlough
conditions including Special Condition 22 requiring him to reside at an approved residence while
on supervision and Special Condition 30 prohibiting him from accessing or loitering in places
where children congregate, including parks, unless approved in advance by his supervising
officer.

Appellant initially lived in approved housing provided by the Franklin / Grand Isle
Restorative Justice Center. Shortly after his release in June 2023, appellant was observed
sunbathing shirtless in a public park. Thereafter, on September 1, 2023, appellant's housing was
terminated for violation of program expectations after security camera footage revealed that an
unaccompanied and visibly intoxicated teenage boy spent the night in appellant's apartment.
On November 6, 2023, defendant was arrested and lodged at Northwestern State
Correctional Facility and charged with violating Special Condition 22. Appellant waived his right
to appear at the violation hearing and, in so doing, admitted that a preponderance of evidence
supported him being found guilty of the violation.
An initial case staffing was held on October 11, 2023, following which the Department
decided that appellant will be required "to present a plan for release to transitional housing
[that] adequately addresses his risk," and that any "[f]uture release on furlough will require a
condition prohibiting contact with minors." Def.'s Exh. B at 2.

Shortly thereafter, appellant received two disciplinary reports for sexualized contact with
other inmates. According to the first report, appellant and the other inmate entered a secluded
area on October 17, hugged each other, and after appellant "asked several times to" kiss the
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23-CV-05335 Gordon Dezotell, Sr. v. Nick Deml
other inmate, the inmate “finally gave in” and the two began kissing. Def.’s Exh. D, at 12. The
second report involved an October 23 incident where appellant was observed kissing a different
inmate after the two left the facility’s gym. Defendant pled guilty to both violations.
On November 29, 2023, the Department held another case staffing and determined that
“based on his continued sexual behavior in the facility,” appellant must “complete facility
programming to address sexual risk” before being eligible for release. Def.’s Exh. E at 2. The
following day, appellant signed a form stating that he did not agree to be considered for Risk
Intervention Services programming. This Rule 74 appeal followed.
Conclusions of Law
“An offender whose community supervision furlough status is revoked or interrupted for
90 days or longer for a technical violation shall have the right to appeal the Department’s
determination to the Civil Division of the Superior Court in accordance with Rule 74 of the
Vermont Rules of Civil Procedure.” 28 V.S.A. § 724(c)(1). The appeal “shall be limited to
determin[ing] whether the decision to interrupt or revoke an offender’s community supervision
furlough status was an abuse of discretion.” 28 V.S.A. § 724(c)(3). An agency abuses its discretion
when it “declines to exercise its discretion or has done so on untenable or unreasonable grounds.”
In re McNamer, 2024 VT 50, ¶ 18. By statute, it is an abuse of discretion to revoke or interrupt
furlough for more than 90 days for a technical violation unless (1) “[t]he offender’s risk to
reoffend can no longer be adequately controlled in the community, and no other method to control
noncompliance is suitable”; (2) “[t]he violation or pattern of violations indicate the offender poses
a danger to others”; or (3) “[t]he offender’s violation is absconding from community supervision
furlough.” 28 V.S.A. § 724(d).
Here, as a result of the November 2023 case staffing, the Department effectively
interrupted appellant’s furlough for an indeterminate period of time—more than ninety days—
based on his violation of Special Condition 22 and his subsequent disciplinary conviction for
inappropriate sexualized behavior in the facility.
Appellant argues that this was an abuse of discretion for at least three reasons: (i) his
disciplinary convictions for kissing other inmates did not violate any furlough condition; (ii) his
conduct in the facility does not speak to his potential danger in the community, see 28 V.S.A. §
724(d); and (iii) an indefinite interruption is inappropriate because appellant has recently
expressed an interest in engaging in risk reduction programming. Appellant requests that his
interruption be reduced to ninety days or, failing that, to two years, which would allow appellant
the requisite time to complete risk reduction programming.
The Department argues that there was no abuse of discretion because both appellant’s
furlough violation and his subsequent conduct in custody raise concerns about his risk to reoffend
endanger others in the community. The Department further argues that, not only did it have
discretion to consider appellant’s in-custody conduct, but that it had a statutory obligation to do
so before releasing appellant to community supervision. See, e.g., 28 V.S.A. § 106(b). The
Department has no objection to allowing appellant to begin programming but opposes any term

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of interruption that would permit defendant’s release on furlough absent completion of such
programming.
The court concludes there was no abuse of discretion here. Appellant was convicted of a
serious sex offense. His furlough conditions were designed to mitigate the risk that he would
reoffend in the community, but the conduct surrounding his alleged violation—spending the
night with an unaccompanied minor who appeared intoxicated—raised significant concerns about
the efficacy of such conditions. Accordingly, it likely would have been in the Department’s
discretion to require risk-reduction programming as a condition of release following the initial
October 2023 case staffing, although that specific question is not before the court.
The court, however, has little trouble concluding that the Department acted within its
discretion by requiring completion of programming as a condition of release at the November
2023 case staffing. The intervening disciplinary violations may appear somewhat benign, but
they were indisputably violations of the Department’s facility rules, and at least one of the
violations appears to have involved an element of coercion. The violations reinforced existing
concerns about appellant’s ability to comply with the Department’s mandates when doing so
would require appellant to resist his sexual impulses. These concerns directly speak to the risk to
the community if appellant is re-released on furlough. The Department must generally consider
community risk when making furlough decisions, 28 V.S.A. §§ 721, 724(d), and is specifically
required to do so when evaluating supervision options for sex offenders, 28 V.S.A. § 106(b). The
Department acted within its discretion when it did so here.
Order
Judgment is entered for the Department.

Electronically signed on: 12/16/2024 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

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