Immich v. Doc

7ermont Superior Court
Filed 04/21/26
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 25-CV-04003
175 Main Street
Burlington VT 05402
802-863-3467
.vermontjudiciary.org

Michael Immich,
Appellant

v FINDINGS OF FACTS AND
CONCLUSIONS OF LAW
Department of Corrections, State of Vermont,
Appellee

RULING ON THE MERITS

This is a Rule 74 furlough revocation review case. Appellant Michael Immich has filed
an appeal seeking review of a Department of Corrections ("DOC") case staffing decision to
interrupt his community supervision furlough for one year. On January 13, 2026, this matter
came before the Court for a hearing on the merits. Mr. Immich appeared by Zoom and was
represented by Attorney Jill P. Martin, Esq. from the Prisoner's Rights Office. DOC was
represented by AAG Rebecca J. Ronga. During the hearing, the Court heard testimony from
Immich and two other witnesses, as well as argument from counsel. Immich asserts that his
waiver of his right to a furlough revocation hearing was not valid, and therefore, there is
insufficient evidence to support the imposed interrupt. The Court allowed the parties the
opportunity to submit post-hearing memoranda, which were complete on February 12, 2026. In
addition to its response to Appellant's waiver argument, DOC filed a motion to dismiss pursuant
to Rule 12(b)(1) of the Vermont Rules of Civil Procedure, alleging improper venue and lack of
jurisdiction The Court then took the matter under advisement for determination. Based upon a
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de novo review of the record and the credible evidence admitted at the hearing, the Court makes
the following findings, conclusions and orders.

Factual Background

Michael Immich is 32 years old and is serving a sentence for various offenses, including
second degree aggravated domestic assault and VAPO. Admin. Rec. ("A.R.") at 1-2. On March
28, 2025, DOC placed Immich on community supervision furlough. A.R. at 2. At that time,
Immich agreed to follow a number of Standard Conditions of Supervision, including "C03,"
which states: "I will not engage in threatening, violent, or assaultive behavior." A.R. at 9-11. In
addition, Immich agreed to report to his supervising officer as directed and to not purchase,

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Given that the issue of whether venue in this Unit is proper was not raised until after the
merits hearing in this matter, the Court considers any error to be waived, and the motion to
dismiss for improper venue is denied.
possess, or consume illegal drugs. Id. DOC approved Immich to reside in Essex at the home of
his aunt, Sondra Norton, who has raised him since he was three years old and is the victim in
some of his underlying criminal cases. A.R. at 2.

On July 11, 2025, Probation and Parole Officer Alex Fontaine received a phone call from
Ms. Norton, who was crying and scared, stating that Immich was engaging in violent behavior,
screaming, smashing property, and threatening to burn the house down. Ms. Norton reported that
she felt unsafe and no longer wanted Immich living there. A.R. at 13-15. Immich was due to
report to Fontaine on that date, but failed to do so. He had failed to report on other occasions
during the prior weeks and had admitted to illegal drug use. Fontaine requested that Immich be
returned to the correctional facility for violation of furlough conditions. Id. When Immich
reported on July 15, 2025, he was arrested and taken into custody. Immich was informed that he
was being returned to jail and got very upset. He wanted to ask PPO Fontaine questions, and
was told she would speak to him once he was calm and in restraints. The officers were able to
calm Immich down and he was put into hand restraints. A.R. at 14. PPO Fontaine then
“explained the process of his NOS and eventual staffing.” Id. After she left the room, Immich
became upset again, but was de-escalated by the transport officers and returned to Northwest
State Correctional Facility (“NWSCF”). Id.

During the hearing on January 13, 2026, Immich testified that once he knew he was
going back to jail he got very upset and did not know “what was actually going on.” During
transport, he asked the officers how long he would be back in jail, which they did not answer,
and how to “find the fastest way through the process.” The officers told him that waiving his
“24-hour rights” would speed things up. Immich stated that he did so, “thinking it would make
things faster for me.” Immich testified that although he had taken illegal drugs in the hours
before his arrest, he was lucid and “fine” during the transport. He remembered his conversation
with the transport officers that waiving his 24-hour rights would make the process go more
quickly.

On July 16, 2025, the day after he was lodged at NWSCF, Immich was given a hearing
packet including the Notice of Hearing and Notice of Suspension Report. A.R. at 6-8. The
Notice of Suspension Report identified the probation conditions that Immich was accused of
violating. A.R. at 7. The Notice of Hearing informed Immich that he would appear before a
Hearing Officer on July 21, 2025 for a hearing on the Notice of Suspension, and listed his rights
and opportunities at the hearing. A.R. at 6. These included the right to be present, present
evidence and cross-examination, and to have the assistance of a Hearing Assistant. Immich
declined such assistance and signed the form at 2:13 p.m. Id. He also indicated that he had been
advised of his right to have a written copy of the evidence against him at least 24 hours prior to
the hearing. Immich waived this right and signed and dated the form. Id.

The following day, on July 17, 2025, Immich was given the opportunity to waive his right
to the Notice of Suspension hearing. According to Immich, by that day, he was detoxing from
the drugs he had taken prior to his incarceration and was not feeling well. He was woken up for
the hearing and was not in his “right state of mind.” He stated that he remembered his
conversation with the transport officers, and agreed to waive his right to a hearing because he
believed it would make the process go faster. When counsel asked Immich if he thought he after

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signing the paperwork he would have a chance to present evidence, he answered, “Yes.” Immich
signed the NOS Hearing Waiver Form on July 17 at 9:29 a.m. A.R. at 4. Among the provisions
of the form are that the offender has been advised of his right to appear at a Furlough Violation
hearing regarding the alleged offenses, and that the offender waives that right. Id. The Form
also states, “I realize that by waiving my right to appear or have a hearing on this matter I am
admitting that a preponderance of the evidence supports being found guilty of alleged
violation(s).” Id. The audio recording of the NOS Waiver Hearing was submitted as part of the
administrative record on appeal. In it, Immich states his name and responds appropriately “yes”
or “no” to the Hearing Officer’s questions, including whether he was under the influence of any
drugs or alcohol and that by waiving his right to a hearing, he was giving up the right to present
evidence on his own behalf. After Immich’s waiver of hearing and admission of guilt, his case
was reviewed at a DOC case staffing on August 13, 2025 to determine the consequence for the
violation. A.R. at 1-3. Immich was given a one-year interrupt, based on the significant violation,
his high ORAS score, and the aggravating factor that he engaged in violent and threatening
behavior with his aunt, who was his prior victim. A.R. at 3.

Since childhood, Immich has experienced learning challenges that make oral and reading
comprehension difficult for him. He attended special programs and had aides to address these
issues. Immich told the Court he sometimes has a hard time understanding verbal statements,
but he does not always ask questions because he is embarrassed and feels he should know the
information. Immich acknowledged that he did not ask questions when presented with during
the NOS Hearing Waiver Form and NOS packet.

During the hearing, the Court also heard testimony from Immich’s aunt, Sondra Norton,
who described Immich’s behavior that led her to call PPO Fontaine. Ms. Norton denied being
afraid of Immich and stated that he was not violent and did not threaten her. In response, PPO
Fontaine testified that, consistent with her incident report made the same date (A.R. at 13-15),
Ms. Norton called her on July 11, 2025 and reported that Immich had smashed property in the
home and threatened to burn down the house. During the call, Ms. Norton was crying and upset,
and stated that she was scared. She asked Ms. Fontaine if field officers were available to come
to the home to help address Immich’s behavior.

On September 15, 2025, Immich filed this appeal of his furlough revocation pursuant to
Rule 74.

Discussion

Under 28 V.S.A. § 724, “[a]n 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)). A “technical
violation” is defined as “a violation of conditions of furlough that does not constitute a new
crime.” Id. § 722(4). It is by now well settled that “if the underlying facts of the violation
compose or establish a new crime, then the violation is a nontechnical violation and falls outside
the purview of Section 724.” Mears v. Vt. Dep’t of Corr., No. 22-CV-04294, 2023 WL 2759752,
at *2 (Vt. Super. Ct. Mar. 22, 2023) (quotation omitted). DOC argues that this Court lacks

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jurisdiction because Immich admitted to engaging in threatening and violent behavior that would
amount to criminal conduct, and therefore his violation was nontechnical under § 724. DOC also
asserts that the one-year interrupt was not an abuse of discretion. Petitioner contends that his
admission and waiver of his right to a suspension hearing were invalid, and thus the record
contains insufficient evidence of criminality or any conduct that would support the one-year
interrupt.

The Court concludes the record contains sufficient evidence to support a finding that
Immich was returned to the facility for conduct that is criminal in nature. Immich’s aunt, Ms.
Norton, reported to PPO Fontaine that Immich was engaging in threatening and violent behavior,
destroying property, screaming at his aunt and uncle, and threatening to burn the house down.
Immich’s actions caused fear in Ms. Norton and she was scared to return to her house. She told
PPO Fontaine that she did not want Immich to remain there. Immich waived his right to have a
hearing and review the evidence supporting the charges, and admitted the C03 furlough
violation, that is, that he engaged in “threatening, violent, or assaultive behavior.” The conduct
Immich admitted to satisfies the elements of several potential criminal offenses. 2

In light of the above, Immich challenges the validity of his waivers of his rights in this
case. To be valid, it must be shown that “the waiver is knowing, intelligent, and voluntary.”
West v. N. Branch Fire Dist. #1, 2021 VT 44, ¶ 52, 215 Vt. 93 (quotation omitted).
This standard is evaluated based on “the totality of the circumstances.” In re Jankowski, 2016
VT 112, ¶ 26, 203 Vt. 418. As our Supreme Court has explained, “a concrete understanding of a
right’s meaning and the effect of waiving it is all that is required.” State v. Cleary, 161 Vt. 403,
412, 641 A.2d 102, 108 (1994).

Here, the record demonstrates that Immich waived both his right to 24-hours’ notice of
the evidence of his alleged furlough violations and his right to have a hearing on the violations
after being made aware of such rights and signing the written waivers. Immich testified that he
wanted to “find the fastest way through the process.” Transport officers accurately told him that
waiving his “24-hour rights” would accomplish this. Immich further testified that he had this
conversation in mind when he signed the waiver forms. Thus, there can be no doubt that
Immich’s first waiver was the product of an intelligent and knowing choice. Likewise, the NOS
and case staffing process were explained to Immich by PPO Fontaine before he was returned to
NWSCF. In addition, Immich’s rights to a hearing on the furlough violations were listed on the
Notice of Hearing and reviewed with him on July 16, the day before Immich began feeling the
effects of drug withdrawal. These rights were read to Immich a second time during the NOS
Waiver Hearing on July 17. The record of that hearing demonstrates Immich was able and alert
enough to understand the Hearing Officer’s questions and then respond “yes” and “no”

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Petitioner asserts that there is no admission or proof as to his state of mind, such that the
elements of a crime like disorderly conduct are not met. However, “[i]ntent is rarely proved by
direct evidence; it must be inferred from a person’s acts and proved by circumstantial evidence.”
State v. Dow, 2016 VT 91, ¶ 8, 202 Vt. 616 (quotation omitted). Sufficient evidence of Immich’s
intent can be found under the circumstances, including his destruction of property and threats to
burn the house down, which scared Ms. Norton to such an extent that Immich was no longer
welcome in her home.

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appropriately. 3 While the Court understands that reading and even oral comprehension can be
difficult for Immich, he is not asserting that he lacks the capacity to understand his right to a
hearing. Based on the totality of the circumstances, the Court finds that Immich had a sufficient
understanding of his right to a hearing on the substance of the furlough violations, and made a
knowing and intelligent waiver. See, e.g., State v. Nemkovich, 168 Vt. 8, 13, 712 A.2d 899, 902
(1998) (valid waiver established where trooper read defendant his rights regarding implied
consent, “defendant acknowledged his understanding of those rights, and then signed a written
waiver of the right to consult an attorney”). 4

Accordingly, the Court finds that Immich waived his right to hearing on the furlough
violations and admitted his guilt, including that he engaged in conduct that amounts to a new
crime. Therefore, Immich’s furlough violation is a nontechnical violation and the Court lack
jurisdiction over this appeal pursuant to 28 V.S.A. § 724.

Order

For the foregoing reasons, DOC’s motion to dismiss is GRANTED. This appeal is
hereby DISMISSED for lack of jurisdiction.

Electronically signed on April 20, 2026 at 10:16 AM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

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Thus, unlike the situation in the case Petitioner relies on, Smedy v State, No. 24-CV-01396,
2024 WL 4508592, at *4 (Vt. Super. Ct. Aug. 09, 2024) (Tomasi, J.), the waiver colloquy raises
no “significant cloud for the Court as to whether Appellant’s waiver of his right to a hearing as to
all matters that were at issue was, in fact, knowingly and intelligently obtained.”
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To the extent Immich can be viewed as testifying otherwise during the hearing before the
Court, we do not find such testimony wholly credible in light of the other record evidence
presented.

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