A Bennington man’s violation of probation conviction for possession of a firearm was upheld following an appeal to the Vermont Supreme Court, but it was not a unanimous decision.
The court majority decided that Judge William Cohen ruled correctly in Bennington Superior Court that John Stern Jr., 32, had violated terms of his probation.
However, in a dissenting opinion, Justice Beth Robinson contended that the circumstances were unusual and the case warranted further review.
Stern pleaded guilty in November 2015 to misdemeanor domestic assault and was handed a deferred sentence for one year, meaning the charge would have been expunged if there were no further trouble during that period.
At that time, the case was considered closed, but because of the probation violation, Stern will now have the domestic assault conviction on his record.
His probation order stated that he “must not engage in criminal behavior,” which would include someone charged with domestic assault possessing a firearm.
In April 2017, in light of the violation, Cohen handed Stern a 4- to 8-month sentence on the assault charge, all suspended.
“We are happy with the decision of the Supreme Court,” said Bennington County Deputy State’s Attorney Alexander Burke, who represented the state during the appeal. “They reiterated that it is a violation of probation when a probationer commits a new crime and has a condition of probation not to engage in criminal behavior.”
Majority decision
In the majority decision to affirm the Superior Court’s probation ruling, Chief Justice Paul Reiber wrote: “After defendant’s release on probation, he asked his probation officer whether he could possess a firearm. The probation officer informed him that he was not an attorney, but he thought the defendant could. This was incorrect.”
According to the high court’s April 6 ruling, Stern “encountered police officers three times. Each time he voluntarily informed the officers that he possessed a gun. In November 2016, the state filed an affidavit alleging defendant had violated his probation by possessing a firearm on three occasions.”
After a hearing in Superior Court that December, Cohen determined that Stern’s probation instructions provided fair notice about engaging in criminal activity and that possessing a firearm would constitute a violation. Stern then appealed to the Supreme Court.
In the appeal on behalf of Stern, attorney Allison Fulcher of Martin & Associates of Barre argued that the probation officer’s statements served to “eviscerate the clarity” of the probation conditions, and that even if Stern did violate his conditions, he did not do so willfully.
The Supreme Court majority agreed with Cohen that “the probationer has fair notice of those conditions expressly stated in his probation certificate,” and “fair notice that gun possession constituted a violation of his probationary terms, and he does not argue otherwise.”
What Stern disputes, according to the majority decision, “is how his probation officer affected that notice.”
The decision adds that “the probation officer’s statements were equivocal,” and that “the probation officer’s equivocation should have put defendant on notice that he must make further inquiries to ensure he understood the terms of his probation.”
The ruling states that “while [Stern] may not have intended to violate his probation, he intentionally possessed a firearm. We cannot find that the trial court committed error in finding defendant’s conduct willful, and we will not disturb its finding.”
Seeks further review
In a dissent, Robinson wrote that the court has “embraced the general rule that ignorance of the law is generally no defense to a prosecution for violating that law. None of the narrow exceptions to this rule would apply to a direct prosecution of defendant for violating this statute. But this probation violation case in which a probation officer informed the probationer that his conduct, not expressly prohibited in his probation conditions and not inherently counter to community norms, would not amount to criminal behavior in violation of his probation conditions, is different.”
Robinson wrote that “this case meets the requirements of a narrow exception to the general common law rule. Second, the primary purpose of probation is not to protect the public but rather to rehabilitate the probationer. That purpose is especially served by applying the narrow exception described above.”
Referring to the probation officer’s comment, Robinson argued that “the probation officer had sufficient authority over the enforcement of defendant’s probation to qualify as an official charged by law with defining permissible conduct under the probation order. And under the circumstances, defendant reasonably relied on the advice.”
That, according to the justice, could meet the legal doctrine of “entrapment by estoppel,” or “due process reliance.”
This case, she wrote, “offers a sensible way of balancing due process considerations at stake with the general rule that ignorance of the law is no excuse.”
Robinson added: “The facts of this case meet the stringent requirements of the doctrine’s applicability. … Moreover, and significantly, defendant’s alleged criminal violation — possession of a firearm following a misdemeanor domestic assault conviction — is not conduct that, in the absence of the statute, would be counter to community norms. The distinction between offenses that are inherently wrong (e.g., murder), and those that are criminal merely because they are prohibited by statute (e.g., jaywalking) … is relevant to my analysis.”
She concludes: “I would remand for consideration of the trial court’s findings and defendant’s evidence in light of the principles set forth above.
Fulcher could not be reached for comment.
