State v. Passino
State v. Passino
Opinion of the Court
Defendant Arthur E. Passino appeals from the district
As we stated in State v. Kasper, 152 Vt. 435, 439, 566 A.2d 982, 985 (1989) (citing Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973), and Morrissey v. Brewer, 408 U.S. 471, 487-90 (1972)) (other citations omitted): “A probationer cannot be denied due process during a probation revocation hearing. However, the scope of a probationer’s due process rights at such a hearing does not parallel the constitutional rights afforded a defendant during a criminal trial.”
A probation revocation proceeding is both “informal” and “unhampered by the procedure incident to a common law trial.” Id. at 440, 566 A.2d at 985 (citations omitted). For these reasons, the probationer’s due process rights are codified by YR.Cr.E 32.1 rather than the more stringent requirements of YR.Cr.E 43. See id. at 439, 566 A.2d at 985. Contrary to defendant’s claim, we have specifically held that YR.Cr.E 32.1 does not preclude the trial court from making its decision via a written order issued after a hearing atwMch the probationer was present. See State v. Germaine, 152 Vt. 106, 108, 564 A.2d 604, 605 (1989). Defendant’s emphatic reliance on United States v. Canady, 126 F.3d 352 (2d Cir. 1997), is misplaced because Canady discusses the impropriety of a post-trial written decision in the context of the federal analog to YR.Cr.E 43, which is not the rule applicable in this case.
Second, defendant objects to the trial court’s recommendation that he “be considered for alcohol, sex offender and violent offender programs in light of his involvement in the untimely death of [the victim in the underlying proceeding] and in recognition of the contents of the Fresentence Investigation Reports previously filed.” According to defendant, the trial court gave no indication at the hearing that it was considering such a recommendation. Therefore, defendant reasons, he was unconstitutionally deprived of his right to be heard on the issue.
Even if we could conclude that defendant had some right to be informed of what the judge might include in the probation revocation sentence, we would not find a violation of that right here. The trial judge’s recommendation to the Commissioner of Corrections concerning the conditions of defendant’s confinement is not, strictly speaking, part of defendant’s sentence. See 13 YS.A. § 7031 (requiring sentencing court to establish maximum period of incarceration and authorizing it to fix minimum term). Defendant’s due process rights are not implicated when the issue is the conditions, as opposed to the duration, of his confinement because an inmate’s “particular right or status within an institution” is a matter within the broad discretion of prison authorities. Conway v. Cumming, 161 Vt. 113, 115-16, 636 A.2d 735, 736-37 (1993). Thus, what
Affirmed.
Defendant characterizes the issue as one implicating his right to effective assistance of counsel, relying on a reference to that effect in Gardner v. Florida, 430 U.S. 349, 358 (1977). Although the phrase “effective assistance of counsel” typically refers to the rights secured by the Sixth Amendment to the U.S. Constitution, Gardner is a procedural due process case, and it is clear that this is the constitutional right defendant is invoking.
Reference
- Full Case Name
- STATE of Vermont v. Arthur E. PASSINO
- Cited By
- 1 case
- Status
- Published