white v. deml

Vermont Superior Court
Filed
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VERMONT SUPERIOR i? CIVIL DIVISION
COURT
Caledonia Unit Case N0. 23—CV—04057
1126 Main Street Suite 1
St. JohnsburyVT 05819 Efi
802—748—6600
www.vermontjudiciary.org

Christopher White V. Nicholas Dernl

FINDINGS, CONCLUSIONS, AND JUDGMENT

This is an appeal under Rule 74 and 28 V.S.A. § 724 concerning Petitioner White’s case

staffing and the Department of Corrections’ determination to revoke his eligibility for
community supervised furlough for one year.1 The Court held a bench trial in this matter on
February 29, 2024. No new evidence was presented. Both Petitioner and Respondent
Department of Corrections offered arguments based on the administrative record.

In support of his appeal, Petitioner makes two arguments. The first is that there is no

evidence of harm to support a determination of a significant Violation, and the interrupt should be
seen as either an interrupt under Depaltment of Corrections Policy 430.11(F)(2)(e) or (f). Both

of these grounds for an interrupt of furlough require an exhaustion of lower-level sanctions
before the Department can impose the more severe sanction of interrupt. Miller v. State, Docket

No. 23-CV-03448 (Jan. 5, 2024) (Richardson, .). J
Petitioner’s second argument, in the alternative, is that the Department failed to consider

mitigating factors that would warrant a shorter interrupt.

The facts, based on the administrative record indicate that Petitioner White was convicted
of sexual assault of his daughter who was a minor at the time. As part of the conditions and
terms of furlough, Petitioner had three relevant conditions regarding who he could associate with

on furlough. They were:

1
At the start of the hearing, the parties noted that while Petitioner’s furlough was originally revoked for two years,
this determination was the result of a mistake in Petitioner’s risk assessment. The Department has corrected this
mistake, and his interrupt period has been reduced down to one-year.

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23—CV—04057 Christopher White v. Nicholas Dernl
1. SC20: l will not associate with any person identified by my supervising
officer as someone to whom I am an active risk;

2. SC31B: l will not allow any female passengers to ride in my vehicle, unless
otherwise approved in advance; and

3. SC36D: l will not initiate or maintain contact with female persons under the
age of 18 years unless otherwise approved in advance.

In June of 2023, Petitioner requested permission to have private contact with Sarah Daniels at his
residence. This request was denied. In July 2023, Petitioner was warned not to have contact
with Ms. Daniels any further and to cut off all contact immediately. In August of 2023,
Petitioner’s probation officer received information that the relationship with Ms. Daniels had
continued. The information also indicated that Petitioner picked up Ms. Daniels in his car and
would park away from Ms. Daniels’ daughter’s daycare so as not to be seen by anyone else. The
information also indicates that Petitioner had regular contact with Ms. Daniels and Ms. Daniels’
young daughter.

While there is no allegation of abuse or harm to either Ms. Daniels or her daughter, the
evidence shows that Petitioner knowingly violated these three conditions and continued to
violated these conditions despite notice and repeated warnings.

The Court finds that these conditions were created to keep Petitioner away from
individuals with whom he runs a risk of re-offending, and that his blatant disregard for these
three provisions and repeated violations constitute a significant violation as they represent a real
and individualized risk against Ms. Daniels and her daughter. As such, the violations fall under
Directive 430.11(f)(2)(b) and constitute grounds for the imposition of an interruption. As the
Court has previously noted, the first four categories of significant violations do not require
evidence of cumulative behavior and do not contain a requirement that the Department exhaust
its lower-level technical sanctions. Miller, Dckt. No. 23-CV-3448, at 2.

Petitioner’s argument that no one appeared to be at risk, and there are no allegations of
harm do not address the primary issue of the condition. The Department made an initial
determination that Petitioner’s contact with certain individuals and categories of individuals
(women under the age of 18) and certain activities (giving women rides in cars) posed a potential

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risk and threat to those individuals.2 The fact that Petitioner knowingly and repeated engaged in
these behaviors demonstrates a risk to those individuals. To the extent that Petitioner objects and
contends that he is not a risk, that argument goes to the existence of the condition and not to its
violation. In other words, if the Department identifies a people at risk or behaviors that put
others at risk and craft conditions that block those associations or behaviors, then violating these
conditions is per se creating a threat of harm to individuals, if the violations involves specific and
identifiable persons.

Based on this, the Court finds Petitioner’s violations to be significant violations
warranting the imposition of a furlough revocation.

The other issue raised in Petitioner’s administrative record is that he left the state of
Vermont despite a condition that he remain in the State of Vermont, unless he was given
permission to leave. The evidence in the record shows that Petitioner did have a work permit to
travel to New Hampshire to work, but that this permit had expired at the beginning of August
2023. The evidence also shows that Petitioner left the State with permission on or about August
22, 2023 and went to New Hampshire to visit with Ms. Daniels. Under Department of
Correction Directive 430.11(F)(2)(d), another basis for a significant violation is absconding. As
defined under 28 V.S.A. § 722, absconding includes when an offender leaves the State without
authorization by the Department of Corrections.

Based on this violation, the Court finds that even if the Court had not determined that his
repeated contacts with Ms. Daniels and her daughter were not significant violations, his
absconding on August 22, 2023 would be sufficient to trigger and support a furlough interrupt.
Therefore, the Court finds that there is no basis to disturb the Department’s determination of
significant violations and its resulting furlough interrupt, which are sustained.

2 While there could be an argument that the first condition restricting contact with individuals not authorized by

the Department is ambiguous as to whether its purposes is to protect those individuals or to protect Petitioner
from individuals, there is no evidence in the record or from Petitioner that there were individuals posing a threat
to him. Even if the Court did not consider that term, the remaining two terms—prohibiting from giving women
rides in his car and from having contact with women under the age of 18 are plainly intended to protect those
individuals from Petitioner as they correspond to Petitioner’s previous actions that led to the harm giving rise to
his incarceration.

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23-CV-04057 Christopher White v. Nicholas Deml
This leads the Court to Petitioner’s alternative argument regarding mitigation and
furlough interrupt. Looking at the Department’s furlough revocation criteria, under Directive
430.11, the decision-making process works as a series of choices and determinations that the
Department must make when confronted with potential violations of the terms of the furlough.
These include:

(1) Imposing revocation or graduated sanctions. 430.11(A).

(2) Determining if the violation constituted a significant violation. 430.11(F)(2).

(3) Determining if revocation is appropriate. 430.11(E)(2).

(4) Applying the proper revocation based on the sanctions grid. 430.11(G)(1).

(5) Applying aggravating or mitigating factors to change the sanction. 430.11(G)(3).

Petitioner’s argument focuses on the fifth and last one of these decision points. Petitioner
contends that in light of his participation in programming and his employment in the community,
the Department should have reduced his furlough interrupt to reflect these positive aspects of his
furlough and the potential that they represent for positive impacts on Petitioner and the
community if he is returned to furlough more quickly. The application of mitigating factors is
discretionary. The language of subsection (G)(3) states that the “Central Office Case Staffing
Determination Committee may consider any aggravating or mitigating factors that could change
the sanction selected.” Vt. DOC Policy Dir. 430.11(G)(3) (emphasis added). Given that this
Court’s review looks to an abuse of discretion standard, the Court is fairly limited in how far it
can examine an allegation concerning the lack of mitigation. 28 V.S.A. § 724(c)(1).

Looking further in subsection (G)(3), however, the policy guides that mitigation is even
more limited. Under 430.11(G)(3)(c), the recommended mitigating factors do not focus on
positive contributions an offender may have made while on furlough. Rather the focus is on
factors that might reduce culpability and capacity to commit the violations. The factors look to
diminished mental ability due to substance abuse or cognitive impairment, evidence of coercion
or duress, or a history of compliance with the terms. None of these factors apply to Petitioner’s
case. While the Court does not, as a matter of law, rule that other mitigating factors are excluded
or cannot form the basis for a reduction of time for the furlough interrupt, it does conclude that

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23-CV-04057 Christopher White v. Nicholas Deml
the absence of such here is not an abuse of discretion. Therefore, the Court finds no basis to alter
or overturn the furlough interrupt and determination reached by the Department in this case.

ORDER

Based on the foregoing, Petitioner’s appeal is denied, and the Department’s furlough
interrupt and case staffing, as modified by the Department, is affirmed. The Appeal is dismissed.

Electronically signed on 2/29/2024 7:28 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

Electronically signed pursuant to V.R.E.F. 9(d)

____________________
Merle L. Haskins
Assistant Superior Court Judge

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23-CV-04057 Christopher White v. Nicholas Deml