Fitzgerald v. Deml

7ermont Superior Court
Filed 04/15/25
Rated Dine

VERMONT SUPERIOR COURT Ky CIVIL DIVISION
Rutland Unit Case No. 24-CV-03384
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

Anthony Fitzgerald v. Nicholas Deml

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 January 13, 2025.
Appellant Anthony Fitzgerald was represented by Attorney Dawn Seibert and the Appellee was
represented by Attorney Robert Menzel. No additional evidence was taken at the hearing. Post-hearing
memoranda were submitted by the Appellant on March 17, 2025 and by the Appellee on April 10, 2025.

Facts

The court makes the following findings of fact based upon a preponderance of the evidence.
Appellant.

Appellant is serving a sentence for a variety of offenses, including lewd and lascivious conduct with
a child, escape, failure to comply with the sex offender registry, and simple assault on a protected official.

Agency Record 1. Appellant has a history of violating the terms of his furlough and has accrued three
significant violations within a year of community supervision. Id at 2. Appellant was placed on furlough
on May 14, 2024. Id.

On June 19, 2024, Appellant left a message with his supervising officer asking to switch his
appointment to the following day because he was working overtime. Id. Appellant agreed to meet the
following day but failed to do so. Id at 4. On June 24, 2024, officers went to Appellant's room at his
stepfather's residence. Id. at 2,4. Appellant's belongings had been moved out of the room. Id Officers
were unable to make contact with Appellant at his residence on June 26, 2024 or June 27, 2024. Id On
June 24, 2024, Appellant's stepfather informed officers that Appellant had not resided at the room for
roughly a week. Id DOC issued a Commissioner Warrant on July 1, 2024. Id at 8.

Appellant was arrested on the warrant on July 25, 2024. Id at 25. Upon arrest, Appellant was
provided a Notice of Suspension Report informing Appellant he was charged with the following
violations:

04. I will report to my supervising officer, or designee, as required.
05. I will allow my supervising officer, or designee, to visit me in my home or place of
employment or elsewhere at any time, as necessary
I
22. will continue to reside at an approved residence while on supervision
23. I will abide by any curfew imposed by my supervising officer, or designee. My curfew is:

Ordet Page 1 of 3
24-CV-03384 Anthony Fitzgerald v. Nicholas Deml
The Notice scheduled a furlough violation hearing for July 31, 2024 at 4:30 p.m. Id. at 8. The Notice was
comprised of four pages. Id. at 8-11. The Notice incorporated an Incident Report documenting the
alleged facts of the violations. Id. at 10-11. The Incident Report indicated that the category of the incident
was “Abscond.” Id. at 10.
Appellant received a Notice of Hearing for his furlough violations and invoked his right to have a
hearing. Id. at 7. Appellant attended the hearing with a Hearing Assistant and plead not guilty. Id. at 3.
Appellant did not call any witnesses at the hearing, but did testify. Id. The hearing officer found Appellant
guilty of condition 4 and special condition 22 and found the Appellant not guilty of condition 5 and
special condition 23. Id. at 4.
The Department held a case staffing on August 14, 2024. Id. at 2. Although Appellant’s
supervising officer recommended a four-year interrupt, DOC determined a two-year interrupt was
appropriate based upon being found guilty of the two violations and his high-risk score. Id. The factors
DOC relied upon for the length of the interrupt was based upon “Fitzgerald’s violation is absconding
from community supervision furlough” and DOC policy 430.11. Id.
Appellant filed a timely notice of appeal.
Standard of Review
“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.). The question of whether a due process violation occurred is
reviewed de novo. State v. Labrecque, 2020 VT 81, ¶ 18.
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 subsection (3) under the theory Appellant absconded from June 19, 2024
through July 25, 2024.
Absconding is defined by statute as (A) “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 V.S.A. § 5301(7) or seven days if convicted of an
unlisted crime;” or (B) “the offender flees from Department staff or law enforcement;” or (C) “the
offender left the State without Department authorization.” 28 V.S.A. § 722(1).

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 2 of 3
24-CV-03384 Anthony Fitzgerald v. Nicholas Deml
Appellant argues his due process rights were violated because DOC “did not give Mr. Fitzgerald
notice that he faced a violation for ‘absconding.’” Appellant’s Brief, p. 2. “Alleged due process violations
are appealable under Rule 74.” Davey v. Baker, 2021 VT 94, ¶ 19. Appellant is entitled to procedural due
process when there exists a liberty interest interfered with by the State. Wool v. Office of Professional
Regulation, 2020 VT 44, ¶ 20. Appellee does not dispute that Appellant has a constitutional right to
procedural due process in a furlough revocation hearing. “Fundamentally, due process requires notice and
an opportunity to be heard at a meaningful time in a meaningful manner.” In re Miller, 2009 VT 112, ¶ 9.
Assuming, without deciding, that Appellant was entitled to notice DOC considered Appellant’s violations
to be absconding, the Appellant had proper notice.
As noted by Appellant, the Notice of Supervision Report is the Department’s charging document
that provides offenders with notice of what furlough conditions they are accused of violating. “You shall
not abscond” is not a specific condition of furlough because “absconding” is an action defined by statute.
28 V.S.A. § 722(1). However, Appellant had actual notice in the Notice of Supervision Report that DOC
considered his violations constituted absconding. The Notice specifically incorporated an Incident Report
that laid out the facts of the violations. The Incident Report categorized the incident as “Abscond.” As
such, Appellant had actual notice that DOC considered his violations to be absconding and there was no
due process violation. Appellant does not otherwise argue DOC abused its discretion in revoking his
furlough and imposing a two-year interrupt.
Conclusion
Appellant’s due process rights were not violated. As such, the decision of DOC to revoke
Appellant’s furlough and impose a two-year interrupt is AFFIRMED.

Electronically signed on April 15, 2025 pursuant to V.R.E.F. 9(d)

__________________________
Alexander N. Burke
Superior Court Judge

Order Page 3 of 3
24-CV-03384 Anthony Fitzgerald v. Nicholas Deml