State v. Jason Meade

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2024 VT 23

No. 23-AP-140

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division

Jason Meade January Term, 2024

Alison S. Arms, J.

Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Briana Hauser, Appellate Defender, Montpelier, for
Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. WAPLES, J. Defendant Jason Mead1 appeals the trial court’s decision granting

the State’s motion to modify a condition of his probation. We reverse.

¶ 2. Defendant was convicted of attempted second-degree murder in 2010. The court

sentenced him to twenty-five years to life, all suspended except for fourteen-to-twenty years to

serve. In imposing the sentence, the court acknowledged defendant’s young age and lack of a

serious prior record as mitigating factors. The court also imposed conditions of probation,

including condition 32, which required that defendant complete the “Cognitive Self Change [CSC]

1
Defendant filed a letter to this Court indicating that his surname is actually “Mead.”
Defendant’s appeal was docketed “under the title of the superior court action” as required by
V.R.A.P. 12(a). Insofar as he has not requested that the trial court alter the title of the case below,
we have not altered the spelling in the caption of this appeal.
Program as deemed approprpiate [sic] by PO.” The unique structure of defendant’s sentence meant

that he would become eligible for community furlough in June 2023 and would be released on

probation in June 2029.

¶ 3. At some point after defendant was sentenced, the CSC program was discontinued,

and the Department of Corrections (DOC) implemented a new program called Risk Reduction

Programming (RRP). In August 2022, defendant’s probation officer moved to modify condition

32 to require defendant to undergo screening for RRP and complete the program if directed by his

probation officer. Defendant did not agree to the requested modification.

¶ 4. The State argued that the trial court had authority to modify the condition and that

the requested modification essentially reiterated a requirement that was already expressly or

implicitly present in defendant’s existing probation conditions. According to the State, by

imposing condition 32 the court had required defendant to “participate in programming to address

any criminogenic needs,” which at the time of his sentencing meant the CSC program. The State

asserted that RRP was the same or similar to CSC. In response, defendant argued that the State

had not demonstrated a change in circumstances sufficient to justify modifying the condition and

that imposing the condition was unreasonable because he was never offered the opportunity to

participate in CSC and would not have time to complete RRP prior to his expected release date.

¶ 5. The trial court heard evidence on the motion over two days in December 2022 and

April 2023. It subsequently issued an order granting the motion and modifying condition 32. The

court first opined that modification was not necessary because RRP was substantially the same as

CSC and therefore the existing condition allowed the probation officer to require defendant to

participate in RRP. The court noted that defendant was also subject to conditions K and 5, which

required him to participate in any programming required by his probation officer. The court

nevertheless granted the motion to modify the condition, concluding that RRP was consistent with

the sentencing goals articulated by the sentencing court and that the modification did not impose

2
harsher or more restrictive conditions on defendant. It therefore modified the condition to require

“Risk Reduction Programming as deemed appropriate by PO.” The court rejected defendant’s

argument that the modification violated his right to due process, concluding that defendant had the

opportunity to participate in RRP in early 2022 and chose not to do so even after he was informed

that it was the only way to comply with his conditions. This appeal followed.

¶ 6. Defendant argues that the trial court’s decision must be reversed because the plain

language of condition 32 did not require him to participate in RRP and there was no change in

circumstances sufficient to justify modifying the condition. Defendant further claims that the

modified condition violated his right to due process because it was vague and placed compliance

outside his control. We agree that condition 32 in its original form cannot be construed to require

defendant to participate in RRP. We further conclude that the trial court erred in modifying the

condition over defendant’s objection because the State failed to demonstrate that there had been a

change in defendant’s circumstances or that RRP was not harsher or more restrictive than CSC.

Because we reverse on these grounds, we do not reach defendant’s due process argument.

¶ 7. We first consider whether condition 32, as originally imposed, allowed DOC to

require defendant to participate in RRP. “[T]he probation conditions contained in the original

sentence represent a contract between the probationer and the court.” State v. Whitchurch, 155

Vt. 134, 139, 577 A.2d 690, 693 (1990). “[A] probationer must be ‘given fair notice as to what

acts may constitute a violation of his probation.’ ” State v. Galanes, 2015 VT 80, ¶ 11, 199 Vt.

456, 124 A.3d 800 (quoting State v. Peck, 149 Vt. 617, 619, 547 A.2d 1329, 1331 (1988)). We

interpret a probation condition according to “the plain and ordinary meaning” of the language used.

Id. ¶ 13. As with any contract, the proper interpretation of a probation condition is a question of

law that we review de novo. Dep’t of Corr. v. Matrix Health Sys., P.C., 2008 VT 32, ¶ 11, 183

Vt. 348, 950 A.2d 1201.

3
¶ 8. The trial court erred in determining that the plain language of condition 32 allowed

defendant’s probation officer to require him to participate in RRP. The court reasoned that in

imposing the condition, the sentencing court intended for defendant to participate in “this type of

program,” and that RRP and CSC were “substantially the same, ‘synonymous’ though with

unspecified differences.” However, courts are required “to enforce a probation condition as it is

written and not as we wish it had been written.” Galanes, 2015 VT 80, ¶ 22. The original condition

stated in its entirety: “Cognitive Self Change Program as deemed approprpiate [sic] by PO.” The

plain language of the condition required participation in the specifically identified CSC program

if defendant’s probation officer determined that program to be appropriate. The “as deemed

appropriate” phrase cannot reasonably be construed to allow defendant’s probation officer to

simply substitute a different program, and did not give fair notice to defendant of the potential for

substitution. Even DOC did not interpret the condition this way, because it requested the condition

be modified to require defendant to participate in RRP instead.

¶ 9. We have rejected similarly expansive interpretations of probation conditions in the

context of proceedings alleging violations of those conditions. In State v. Galloway, we reversed

the trial court’s conclusion that the defendant violated a probation condition requiring him to

complete “a program for sex offenders approved by DOC and assume the cost of your treatment”

by failing to complete the VTPSA high-intensity program while he was incarcerated. 2020 VT

29, ¶¶ 2, 17, 212 Vt. 91, 231 A.3d 1157. We examined the plain language of the condition and

determined that the DOC’s interpretation of the condition to require defendant to complete VTPSA

was unsupported because the condition did not specify a particular program; used the word

“approved,” rather than “directed” or some other verb suggesting that DOC had discretion to

mandate a specific program; required defendant to pay for his treatment, which implied he could

complete programming in the community; and, as a whole, indicated that defendant had a choice

of programs. Id. ¶ 18. We explained that the DOC’s interpretation of the probation condition to

4
require defendant to complete VTPSA “added requirements not expressly or impliedly present in

the condition and thus crossed the line between implementation and modification.” Id. Galloway

relied on several earlier decisions in which we overturned probation violations that were premised

on overly broad interpretations of probation conditions. See, e.g., Galanes, 2015 VT 80, ¶¶ 21-24

(reversing determination that defendant violated condition requiring him to notify probation officer

if he was planning to begin a sexual relationship by engaging in chance sexual encounter with his

housekeeper, because plain language of condition did not prohibit unplanned, single occurrence of

sex); State v. Bostwick, 2014 VT 97, ¶ 21, 197 Vt. 345, 103 A.3d 476 (reversing conclusion that

defendant violated condition requiring him to live where probation officer directed by failing to

make housing search calls every day and finding housing by certain date, because plain language

of condition did not include these requirements).

¶ 10. In this case the trial court interpreted condition 32 to require that defendant

participate in CSC or an equivalent program—but the language of the condition does not contain

the latter requirement. The trial court’s conclusion that condition 32, as originally written, required

defendant to participate in RRP is not supported by the plain language and cannot be sustained.

Modification of the condition was necessary to require defendant to participate in RRP.

¶ 11. We accordingly consider whether it was appropriate for the court to modify the

condition under the circumstances present here. The trial court may modify a probation condition

upon request by a probation officer or the defendant or upon its own motion. 28 V.S.A. § 253(a).

A hearing and assistance of counsel are required before modification unless the modification is

imposed at defendant’s or the court’s motion and is favorable to the defendant. Id. § 253(b);

V.R.Cr.P. 32.1(b). We have held that the court may not impose harsher or more restrictive

conditions of probation without either the consent of the defendant or a change in the probationer’s

circumstances. State v. Day, 147 Vt. 93, 96, 511 A.2d 995, 998 (1986). This is because

“[c]hanging the terms of probation without either the probationer’s consent or a change in

5
circumstances betrays the justifiable expectation that the agreement will be honored.” Id. (footnote

omitted).

¶ 12. The State argues that the discontinuation of the CSC program constituted a change

in circumstances sufficient to modify the condition over defendant’s objection. However, Day

makes clear that, absent the probationer’s consent, there must be a change in the probationer’s

circumstances before the court may impose harsher or more restrictive conditions. Id. at 97, 511

A.2d at 998-99. In Day, a probation officer sought to modify conditions to impose a requirement

that the defendant participate in an intensive supervision program. The officer admitted that he

was not seeking the change due to a change in the defendant’s risk factor or because defendant had

violated existing conditions. Rather, “he sought the modifications due to changes in his

department’s programming rather than due to changes in defendant’s behavior.” Id. at 94, 511

A.2d at 997. The trial court adopted the proposed conditions over the defendant’s objection. We

reversed, explaining that because a probation agreement is contractual in nature, changing its terms

“without either the probationer’s consent or a change in circumstances betrays the justifiable

expectation that the agreement will be honored.” Id. at 96, 511 A.2d at 998 (footnote omitted).

We rejected the State’s argument “that a judge has discretion to impose stricter conditions during

a period of probation without any change in a probationer’s behavior.” Id. at 97, 511 A.2d at 998.

Because the DOC sought to modify the conditions based on changes in its own programming,

rather than any “significant change in the defendant’s circumstances,” we reversed and remanded

for the lower court to reinstate the original conditions. Id. at 97-98, 511 A.2d at 998-999.

¶ 13. Here, as in Day, the DOC sought to modify condition 32 due to a change in its own

programming. There was no evidence that defendant’s risk factor had changed or that he had

violated any probation conditions. Cf. State v. Foster, 151 Vt. 442, 446, 561 A.2d 107, 109 (1989)

(holding that violation of prior conditions demonstrated change in circumstances sufficient to

justify imposition of stricter probation conditions). The DOC’s unilateral decision to replace CSC

6
with RRP does not, under Day, constitute changed circumstances that would allow the court to

modify the condition over defendant’s objection.

¶ 14. The State alternatively argues that changed circumstances were unnecessary

because the new requirement that defendant participate in RRP was not harsher or more restrictive

than the old requirement that he participate in CSC. The trial court agreed with the State’s position,

finding that RRP was “nearly identical” to CSC. This finding cannot stand because there was

insufficient evidence to support it. Cf. State v. Sanborn, 155 Vt. 430, 436, 584 A.2d 1148, 1152

(1990) (explaining in context of probation proceeding that this Court will uphold “[f]indings fairly

and reasonably supported by any credible evidence” in record).

¶ 15. At the April 2023 hearing, the State presented testimony from a DOC caseworker

and the caseworker’s supervisor. The caseworker testified that the CSC program was designed for

risk reduction and was “meant to address risky behavior such as violent offenses.” He testified

that at some point after 2010, CSC was replaced with RRP. He stated that he could not “speak

specifically to the programming specifications” of RRP, but that both programs were the DOC’s

mandated programming for violent offenders. The caseworker testified that offenders were

typically scheduled to begin programming six-to-nine months before their expected release date

into the community. Defendant was offered RRP for the first time in February 2022 because he

would soon be eligible for furlough release. On cross-examination, the caseworker agreed that he

was “not an expert on the specifics of either program. . . . I don’t have expert knowledge of the

techniques of the internal workings of either program.”

¶ 16. The caseworker’s supervisor similarly testified that CSC and RRP were “basically

synonymous with each other, that that’s the required programming for violent offenders. . . . [T]he

program does have some differences, but I’m not the content expert on that.” The supervisor

testified that, regardless of the probation conditions, DOC would require defendant to undergo

RRP in order to be eligible for furlough release due to his risk level.

7
¶ 17. At most, this testimony shows that RRP replaced CSC as DOC’s required

programming for individuals incarcerated for violent offenses. Neither the caseworker nor his

supervisor was able to describe the specific requirements of either program, and the supervisor

admitted that there were differences between the two. There was no evidence comparing the

length, intensity, or rules of the two programs. The testimony presented by the State was

insufficient to support the trial court’s finding that these two programs were effectively identical

in how they affected offenders, and therefore did not support the conclusion that RRP was not a

harsher or more restrictive condition than CSC.2

¶ 18. The State contends that even if the court erred in finding on this record that the

programs were identical, the error was harmless because defendant was also subject to conditions

K and 5, which required him to participate in any counseling, training, or residential treatment

program required by his probation officer.3 See V.R.Cr.P. 52(a) (errors that do not affect

substantial rights shall be disregarded). The State did not raise this argument below, and the trial

court’s suggestion in its order that defendant could be required by his probation officer to attend

RRP under conditions 5 and K was dicta, insofar as DOC had not attempted to invoke those

conditions for that purpose. Further, our disapproval of the imposition of conditions 5 and K as

“standard” conditions in State v. Putnam, 2015 VT 113, ¶ 32, 200 Vt. 257, 130 A.3d 836, and

subsequent cases leads us to conclude that the conditions cannot be relied upon to uphold the trial

court’s decision here.

2
Our decision should not be interpreted as holding that RRP is in fact harsher or more
restrictive than CSC. We simply conclude that the State failed to prove in the hearing below that
the two programs were essentially identical such that the trial court could modify the condition
without defendant’s consent or a change in defendant’s circumstances.
3
Condition K states: “If the probation officer or the court orders you to go to any
counseling or training program, you must do so. You must participate to the satisfaction of your
probation officer.” Condition 5 states: “You must attend, participate in, and complete a residential
treatment program if your probation officer tells you to do so. You must complete the program to
your probation officer’s satisfaction.”
8
¶ 19. In Putnam, the defendant appealed his conviction for grossly negligent operation

and resulting sentence, which included the same probation condition K that was imposed in this

case. We held that the imposition of condition K was an unlawful delegation of authority by the

trial court because the language of the condition contained no limitations on the counseling or

training programs the probation officer could order. Id. ¶¶ 68, 70. Although the defendant did not

object to the condition at sentencing, we determined that it was plain error for the trial court to

impose condition K without any findings supporting either the condition or the delegation to the

probation officer. Id. ¶ 73. In the subsequent case of State v. Albarelli, we concluded that

condition 5 likewise constituted an impermissible delegation of authority where the trial court

imposed it as a standard condition without limiting the condition or making any findings to support

its imposition. 2016 VT 119, ¶¶ 55, 66, 203 Vt. 551, 159 A.3d 627. Similarly, in this case the

sentencing court made no findings justifying conditions 5 or K or its broad delegation to the

probation officer to choose the type of counseling, training, or residential treatment program

defendant had to participate in.4

¶ 20. The State contends that we have interpreted conditions 5 and K to require

defendants to engage in programming similar to a specifically mandated program that no longer

was available, citing State v. Duffy, 151 Vt. 473, 562 A.2d 1036 (1989), Sanborn, 155 Vt. 430,

584 A.2d 1148, State v. Coleman, 160 Vt. 638, 632 A.2d 21 (1993), and State v. Anderson, 2016

4
The State argues that defendant did not challenge the imposition of conditions K or 5 in
a direct appeal from sentencing and therefore is barred from opposing its harmless-error argument
on the ground that those conditions are invalid. It is true that “a probationer is barred from raising
a collateral challenge to a probation condition that he was charged with violating, where the
challenge could have been raised on direct appeal from the sentencing order.” State v. Austin, 165
Vt. 389, 401, 685 A.2d 1076, 1084 (1996). However, this is not a probation-violation proceeding,
so this rule is inapplicable. Moreover, we recognized in Austin that a probationer may challenge
a probation condition as unlawful in the context of a motion to modify the condition. See id. at
401 n.3, 685 A.2d at 1084 n.3 (explaining that this Court has permitted constitutional challenges
to probation conditions in motions to modify conditions, citing Whitchurch, 155 Vt. at 139, 577
A.2d at 693). Accordingly, we do not view Austin as precluding defendant from challenging the
State’s harmless-error claim here.
9
VT 40, 202 Vt. 1, 146 A.3d 876. These cases are unhelpful to our analysis because the defendants

therein had been charged with violating the conditions and were therefore barred from challenging

their validity. See Austin, 165 Vt. at 401, 685 A.2d at 1084. Moreover, in State v. Cornell, we

rejected the argument that it was appropriate for the trial court to impose condition K as a backup

in case the defendant failed to complete a more specifically mandated sex-offender treatment

program. We explained:

While it is permissible under Putnam to delegate authority to a
probation officer to select among a predetermined list of
programming options relevant to a defendant’s particular needs—
for example, substance abuse counseling or anger management—we
cannot approve a delegation of “full authority” to impose counseling
or training purely on the grounds that defendant may falter in his
commitment to pre-existing programming.

State v. Cornell, 2016 VT 47, ¶ 18, 202 Vt. 19, 146 A.3d 895. Given the concerns we have

expressed in Cornell, Putnam, and other cases about the imposition of conditions 5 and K, we

decline to hold that the existence of these conditions renders the trial court’s erroneous

modification of condition 32 harmless—particularly because defendant could still move to modify

or strike those conditions before they take effect. We therefore reverse the court’s order.5

Reversed.

FOR THE COURT:

Associate Justice

¶ 21. CARROLL, J., dissenting. I agree that the trial court’s modification order cannot

stand for many of the reasons discussed by the majority. I dissent because I believe a remand—

5
To the extent the State argues that the modification was harmless because DOC could
independently require defendant to participate in RRP to be eligible for furlough, we disagree.
Defendant’s sentence is structured in such a way that even if he never qualifies for furlough release,
he will be released on probation after completing twenty years of incarceration. At that point, the
probation condition will be triggered and he could be subject to a violation proceeding and
reincarceration if he has not completed RRP. Thus, whether DOC requires defendant to participate
in RRP for furlough purposes is irrelevant to this proceeding.
10
rather than just a reversal—is necessary so that the trial court can make supportable findings on

the issue of whether the proposed new programming is more restrictive than the prior imposed

programming. I also dissent from the majority’s analysis on the State’s harmless-error argument

for two reasons. First, it announces a holding in an advisory posture regarding collateral challenges

to probation conditions. Second, a remand would be the more appropriate mandate to the extent

that conditions K and 5 are live issues in this case. Accordingly, I respectfully dissent.

¶ 22. The Supreme Court remands for further proceedings where the trial court’s findings

are inadequate or unsupportable on a question of law the Court must review. See, e.g., State v.

Calabrese, 2021 VT 76A, ¶ 33, 216 Vt. 84, 268 A.3d 565 (remanding for trial court to make

necessary findings where it applied improper legal analysis and made no relevant findings to

proper legal analysis); McLaren v. Gabel, 2020 VT 8, ¶¶ 2, 66, 211 Vt. 591, 229 A.3d 422 (per

curiam) (remanding for recalculation of restitution award and reconsideration of final remedy

where original order was premised on clearly erroneous findings); In re Apple Hill Solar LLC,

2019 VT 64, ¶ 41, 211 Vt. 54, 219 A.3d 1295 (reversing and remanding because agency’s

conclusion that town plan did not constitute clear, written community standard under 30 V.S.A.

§ 248 was based on clearly erroneous findings); In re D.B., 2003 VT 81, ¶ 6, 175 Vt. 618, 833

A.2d 1246 (mem.) (reversing and remanding for further proceedings to determine parental rights

where order terminating rights was premised on unsupported findings). This makes sense because

an appellate court should not ordinarily review legal conclusions that rely on clearly erroneous

findings. See State v. Lawrence, 2003 VT 68, ¶ 8, 175 Vt. 600, 834 A.2d 10 (mem.) (explaining

that proper procedure in context of suppression motions is to review legal conclusions after

concluding findings not clearly erroneous); State v. D’Amour, 834 A.2d 214, 219 (N.H. 2003)

(concluding that material finding was clearly erroneous and remanding for further proceedings to

make further findings necessary to resolve legal question). Accordingly, if we conclude that

findings are clearly erroneous on a dispositive legal issue, we ought to stop there and remand for

11
further proceedings. We should do this because the trial court’s legal conclusions must be

supported by adequate findings, which must in turn be supported by the evidence. State v.

Woolbert, 2007 VT 26, ¶ 9, 181 Vt. 619, 926 A.2d 626 (mem.).

¶ 23. Here, the court’s legal conclusion to modify condition 32 on the basis that Risk

Reduction Programming (RRP) is not more restrictive than the Cognitive Self Change Program

(CSC) is, effectively, unreviewable. This is because the finding that RRP does not impose harsher

or more restrictive conditions on defendant than the CSC program is not supported by the record.

However, resolution of this issue is necessary to dispose of the appeal. If the court finds on credible

evidence that RRP does not impose harsher or more restrictive conditions than CSC, it may elect

to modify condition 32 without finding substantial changed circumstances involving defendant.

See State v. Day, 147 Vt. 93, 97, 511 A.2d 995, 998 (1986). Therefore, the appropriate mandate

is to remand to the trial court to make findings supporting its conclusion one way or another. A

reversal without a remand deprives the trial court of an opportunity to correct its error and puts

this Court in the position of arbitrarily deciding what is worth correcting, and what is not, based

on its review of legal conclusions premised on clearly erroneous findings. This produces

unpredictable outcomes, as here. See, e.g., Buchanan v. United States, 165 A.3d 297, 305-06 (D.C.

2017) (remanding for trial court to make findings necessary for appellate court to determine legal

question and holding that “the proper course” in such scenario “is a record remand for

consideration of the issue by the trial judge” (quotation omitted)); United States v. Ranger-

Crouchet, 103 Fed. App’x 259, 260 (9th Cir. 2004) (unpub. mem.) (remanding for sentence

reconsideration because district court’s sentencing decision relied on clearly erroneous finding and

appellate court “c[ould not] conclude, ‘on the record as a whole, that the . . . error did not affect

the district court’s selection of the sentence imposed’ ” (quoting Williams v. United States, 503

U.S. 193, 203 (1992)).

12
¶ 24. I also dissent from the majority’s holding that State v. Austin, 165 Vt. 389, 401,

685 A.2d 1076, 1084 (1996), does not preclude defendant from collaterally attacking conditions

K and 5 for the first time in his reply brief. Ante, ¶ 19 n.4. As an initial matter, I would not reach

this issue because a remand on the question of condition 32 resolves the appeal. Nonetheless, in

my view, this holding is advisory because neither defendant nor the State litigated this question

below. See In re Snowstone LLC Stormwater Discharge Auth., 2021 VT 36, ¶ 28, 214 Vt. 587,

256 A.3d 62 (“Courts are not authorized to issue advisory opinions because they exceed the

constitutional mandate to decide only actual cases and controversies.”). Moreover, defendant’s

argument raised for the first time in his reply brief, in response to the State’s unpreserved harmless-

error assertion, hardly satisfies the rule that the parties must actually dispute the issue for us to

reach it. See In re Investigation into Programmatic Adjustments to Standard-Offer Program, 2018

VT 52, ¶ 17, 207 Vt. 496, 191 A.3d 113 (“[T]he establishment of legal doctrine derives from the

decision of actual disputes, not from the giving of solicited legal advice in anticipation of issues.”

(quotation omitted)). Neither party presented the trial court with argument concerning conditions

K and 5, and the court’s sua sponte dicta in its order on the question raises more questions than the

record answers. Accordingly, in my opinion, this holding is advisory.

¶ 25. Equally troubling, Austin, in contrast to the majority’s interpretation, does not stand

for the proposition that a probationer can litigate a specific condition, take an appeal, and thereafter

challenge any other probation condition simply by virtue of the procedural posture of the case.

The defendant in Austin sought to challenge a drug-testing condition for the first time during

revocation proceedings involving a violation of the drug-testing condition, among others. We held

that such a challenge amounted to an impermissible collateral attack. 165 Vt. at 401, 685 A.2d at

1084. In a footnote cited by the majority, we observed in Austin that a probationer can challenge

a condition in many other contexts, including at a modification proceeding. Id. at 401 n.3, 685

A.2d at 1084 n.3 (citing State v. Whitchurch, 155 Vt. 134, 139, 577 A.2d 690, 693 (1990), for rule

13
that probationer can make facial challenge to condition for first time at modification proceeding);

ante, ¶ 19 n.4. The relevant point for our purposes is that the defendant in Austin actually

challenged the drug-testing condition he was charged with violating below and appealed the trial

court’s decision on that condition. See Whitchurch, 155 Vt. at 136-37, 577 A.2d at 691 (appealing

trial court order denying modification of two probation conditions that defendant sought to modify

in posttrial modification proceedings, and which was first time defendant challenged those

conditions). The majority’s reading of Austin and Whitchurch raises crucial questions of issue

preservation and argument waiver, neither of which it addresses at all.6 In my view, this case

concerns only condition 32, and any holding on a matter of apparent first impression that the parties

have not adequately litigated is advisory.

¶ 26. Finally, I dissent from the majority’s analysis of the State’s harmless-error

argument. Ante, ¶ 20. Again, I would not reach this question because a remand on the issue of

condition 32 resolves this appeal. However, to the extent that this issue must be decided, I first

agree with the majority’s refusal to affirm on the basis offered by the State—that defendant is

bound by conditions K and 5 even if the trial court erred in modifying condition 32. Conditions

K and 5 are controlled by State v. Putnam, 2015 VT 113, ¶¶ 68-71, 200 Vt. 257, 130 A.3d 836,

and State v. Albarelli, 2016 VT 119, ¶ 66, 203 Vt. 551, 159 A.3d 627, respectively. See also ante,

¶ 19. Each held that conditions K and 5 cannot be imposed without particularized findings

supporting their imposition and/or language limiting their application. Putnam, 2015 VT 113,

¶¶ 68-71 (condition K); Albarelli, 2016 VT 119, ¶ 66 (condition 5).

¶ 27. Here, the sentencing court imposed conditions K and 5 without particularized

findings and before Putnam and Albarelli issued, and defendant has never moved to modify or

6
Defendant concedes that the question of whether RRP could be imposed under
Conditions K and 5 is not preserved because neither he nor the State offered any argument to the
trial court on the question, and the trial court’s dicta on those conditions was itself advisory.

14
strike them.7 Nonetheless, if this case turned in any way on either condition—and I do not believe

it does, as discussed above—the appropriate mandate would be to remand to the trial court so that

it has the “opportunity to make findings to support, revise, or remove” the conditions, just as we

did in Putnam, 2015 VT 113, ¶ 73. See Albarelli, 2016 VT 119, ¶ 68 (remanding conditions K

and 5 “to justify [each one], make them more specific, or strike them” (emphasis omitted)). Simply

because the conditions were originally imposed without particularized findings does not mean that

they vanish from defendant’s sentencing order. As the majority correctly notes, “probation

conditions contained in the original sentence represent a contract between the probationer and the

court.” Whitchurch, 155 Vt. at 139, 577 A.2d at 693; ante, ¶ 7. That works both ways. Whether

conditions K or 5 are justified, in a more specific form and upon more specific facts, is a question

to be put, in the first instance, to the discretion of the trial court just as we concluded in Putnam

and Albarelli.

¶ 28. For these reasons, I respectfully dissent.

Associate Justice

7
Nor, apparently, has the State sought to enforce them until this appeal. I note that in
Albarelli, the State conceded that condition K should be remanded to the trial court for further
proceedings because, as imposed, it was plain error under Putnam. 2016 VT 119, ¶ 55.
15