MacAllister v. State

7ermont Superior Court
Filed 03/1
Rutland

VERMONT SUPERIOR COURT CIVIL DIVISION
Rutland Unit Case No. 24-CV-03968
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

Nicholas MacAllister v State of Vermont

DECISION ON THE MERITS

This is a Rule 74 appeal where the Appellant seeks review of the Department of Corrections
("DOC") decision to impose a two-year furlough interrupt. The court held a hearing on February 4,
2024. Appellant Nicholas MacAllister was represented by Attorney Marco Kushner and the Appellee
was represented by Attorney Kimberly Johnson. Appellant was the sole witness at the hearing. Post-
hearing memoranda were submitted by the Appellant on March 5, 2025 and by the Appellee on March
6, 2025.

Facts

The court makes the following findings of fact based upon a preponderance of the evidence.
Appellant is serving a sentence for a variety of offenses, including driving under the influence,
violation of an abuse prevention order, violations of conditions of release, domestic assault, and
obstruction ofjustice. Agency Record, p. 1. Appellant has a history of noncompliance with
supervision conditions while on probation. Jd. Appellant was placed on furlough in December 2023.
Prior to his release, Appellant had been incarcerated for approximately 35 months.

Upon release, Appellant was prescribed and taking Paxil and Depakote. Appellant did not have
a prescription refill. Appellant's primary care physician did not feel comfortable prescribing mental
health medications, so he went to United Counseling Services ("UCS") in Bennington, Vermont.
Appellant had to go back in February or March to redo an intake with UCS. Between that intake and
Appellant's reincarceration in August 2024, Appellant was on a wait list at UCS to see a clinician.
Appellant did not seek mental health treatment from any other sources during this time. Neither did
Appellant reach out to his supervising officer for assistance in obtaining mental health services.
Appellant did not follow up with his primary care physician to ask about medication or for a different
referral. In lieu of proper medication, Appellant chose to self-medicate with alcohol. When Appellant
is not properly medicated, he feels severe anxiety, impulsivity, and depression.

On August 26, 2024, Appellant was at his Pathways apartment with a friend, Mark McIntire.
While visiting and playing guitar, Appellant observed someone outside. Due to an altercation with an
individual a week prior, Appellant grabbed a hammer, put on a mask, and ran outside. Appellant
grabbed the hammer "as a scare tactic." The individual Appellant confronted on August 26, 2024 was
not the individual he had an issue with the week prior, but rather the property manager, Peddie Jenkins.
Appellant testified he didn't intent to harm anyone with the hammer and was acting to protect his
Order Page 1 of 4
24-CV-03968 Nicholas MacAllister v State of Vermont
neighbors. Appellant does not deny he exited his apartment with a hammer with the intent to scare off
the individual he saw. Pathways terminated his tenancy at his apartment as a result of this incident. Id.
at 17.
On August 27, 2024, Appellant was returned to Marble Valley Regional Correctional Facility
on a Notice of Suspension. Id. at 1, 5. The Notice of Suspension alleged four violations of
Appellant’s furlough conditions:
C01. I will not be cited or charged; I will not commit any act punishable by law.
C03. I will not engage in threatening, violent, or assaultive behavior
SC16. I will not purchase, possess, or consume illegal drugs and/or regulated drugs
without a prescription from a licensed health care professional. I will submit to
a drug screen or alcohol test as directed by my supervising officer, or designee.
SC21. I will refrain from the use of alcoholic beverages while on community
supervision.
SC22. I will continue to reside at an approved residence while on supervision.

Id. at 5. A furlough violation hearing was scheduled for September 3, 2024 at 4:00 p.m. Id. at 6.
Appellant requested Mr. McIntire attend the hearing, but was unable to provide a good telephone
number. Id. at 5, 6.
DOC held the violation hearing on September 3, 2024. Appellant testified, however Appellant
was not able to have Mr. McIntire testify as he did not answer the phone. Id. at 8. Appellant admitted
to violating conditions SC 16 and SC 21. The hearing officer made the following findings of fact
regarding the other conditions:
Condition 1- On August 24th you ran at Peddie Jenkins while holding a hammer, On
8/27/24 you tested positive for Amphetamine without a perscription. Condition 3 - On
August 24th you ran at Peddie Jenkins with a hammer while wearing a mask after
Jenkins informed you of his presence and you informed him you would be right down.
Special condition 22 - On August 28th a "Notice of Termination of Tenancy for illegal
Activit”y was issued from Pathways for acts of violence
Id. at 9. The hearing officer then referred the matter to a case staffing. Id.
A case staffing was held on September 25, 2024. Id. at 3. DOC determined that Appellant was
high risk and that this was his first significant violation. Id. at 4. DOC revoked Appellant’s furlough
and imposed a one-year interrupt. Id. DOC applied the criteria of Policy 430.11, Response to
Furlough Violations, and determined a one-year interrupt was appropriate because Appellant’s
behaviors posed a direct risk of danger to others. Id. DOC held a second case staffing on October 2,
2024 after the Central Staffing Committee ordered a new staffing be conducted. Id. At the second
case staffing, DOC imposed a two-year interrupt based upon newly identified aggravating factors. Id.
DOC cited the “Use of a weapon” and “Behavior in which the details support a longer return to a
correctional facility in the interest of victim or public safety” as the aggravating factors that justified
the longer interrupt. Id. DOC determined that Appellant engaged in a pattern of behavior such that his
risk to reoffend could no longer be adequately controlled in the community. Id.
Standard of Review
Order Page 2 of 4
24-CV-03968 Nicholas MacAllister v State of Vermont
“The 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 pursuant to subsection (d) of this section.” 28 V.S.A. § 724(c)(1). “Abuse of discretion occurs
when that discretion is exercised on grounds or for reasons clearly untenable, or to an extent clearly
unreasonable.” In re Halnon, 174 Vt. 514, 517 (2002) (mem.).
Analysis
It is an abuse of discretion for DOC to interrupt furlough for more than 90 days for a technical
violation1 unless one of three circumstances are met. 28 V.S.A. § 724(d). These circumstances are:
(1) The offender’s risk to reoffend can no longer be adequately controlled in the community, and
no other method to control noncompliance is suitable.
(2) The violation or pattern of violations indicate the offender poses a danger to others.
(3) The offender’s violation is absconding from community supervision furlough.
Id. Here, DOC is relying upon subsections (1) and (2). Appellant argues DOC abused its discretion
because the record does not support the conclusion Appellant’s risk to reoffend could no longer be
controlled in the community and nor the conclusion that Appellant posed a danger to others.
The record adequately supports the conclusion of DOC that Appellant’s violation indicates he
posed a danger to others. Appellant did not dispute at the furlough violation hearing or when he
testified in this appeal that on August 27, 2024 he exited his apartment with a weapon with the sole
intent to threaten an individual. It does not matter that Appellant testified he did not intend to harm
Mr. Jenkins. The issue is he went outside, with a mask, holding a weapon, with the sole intent to
threaten another individual. That demonstrates he is a danger to others and DOC did not abuse its
discretion in so finding.
Appellant also argues DOC failed to consider mitigating circumstances. Specifically,
Appellant argues DOC failed to consider the role his mental health played in the violation. The court
disagrees. First, it is not clear that Appellant raised this argument below. The court does not generally
consider arguments not raised below. See Hoover v. Hoover, 171 Vt. 256, 258 (2000). Assuming it
was properly raised, Appellant’s argument is undercut by his history. Appellant refused to complete
treatment practices with his prior probation officer and did not want to complete IOP or other
treatments. Agency Record, p. 2. When he was released in December 2023, he made two intakes with
United Counseling Services, but failed to follow through or seek any additional mental health services.
He did not reach out to his supervising officer for assistance and instead chose to self-medicate. Given
this history, it was not an abuse of discretion for DOC to interrupt Appellant’s furlough for more than
90 days.
The court does find there was an abuse of discretion for DOC to impose a two-year interrupt
for the violations after first determining a one-year interrupt was appropriate. The Agency Record is
bereft of any explanation why the initial case staffing decision was overturned by the Central Staffing
Committee. Without any explanation of the basis for that decision, the court cannot properly evaluate
whether DOC abused its discretion. As noted by the Vermont Supreme Court:

1 Technical violation is defined as “a violation of conditions of furlough that does not constitute a new crime.” 28 V.S.A. §
722(4).
Order Page 3 of 4
24-CV-03968 Nicholas MacAllister v State of Vermont
We have emphasized that decisions “arrived at without reference to any standards or
principles [are] arbitrary and capricious; such ad-hoc decision-making denies [an]
applicant due process of law.” In re Miserocchi, 170 Vt. 320, 325, 749 A.2d 607, 611
(2000) (citation omitted). We have also been firm that “[a]dequate findings of fact are
required, so that we may determine whether the sound discretion implicitly mandated
by [a] statute was in fact exercised.” State v. Powers, 136 Vt. 167, 169, 385 A.2d 1067,
1068 (1978).
In re MVP Health Ins. Co., 2016 VT 111, ¶ 20. DOC’s decision to have a second case staffing without
providing a justification for that decision was arbitrary and capricious and was an abuse of discretion.
Order
The decision of DOC to revoke Appellant’s furlough and impose a one-year interrupt is
AFFIRMED. The decision of DOC to hold a second case staffing is REVERSED. The case is
remanded to the Department to reimpose the interrupt consistent with the September 25, 2024 case
staffing decision.

Electronically signed on March 14, 2025 pursuant to V.R.E.F. 9(d)

__________________________
Alexander N. Burke
Superior Court Judge

Order Page 4 of 4
24-CV-03968 Nicholas MacAllister v State of Vermont