Vermont Supreme Court Considers Due Process Rights Following a Parole Violation

In In re Mark Jankowski, 2016 VT 112 (Oct. 14, 2016), the Supreme Court held that, in the case of a parole violation, procedural due process rights of prisoners include an opportunity to be heard both on the violation itself, and on mitigating factors and revocation of the prior sentencing agreement.

Issue: Petitioner pled guilty to sexual assault on a child and was given a partially suspended sentence and probation. He violated his probation, and at a second sentencing hearing, at which Petitioner was not present, attorney for Petitioner agreed to an amended straight sentence, with credit for time served. Attorney for Petitioner indicated that he had spoken to his client and that Petitioner had agreed to the new terms, which the court accepted at that time. Petitioner filed a motion pro se seeking post-conviction (PCR) relief in which he stated that no sentencing hearing was held, that he was not present at such a hearing, and that he was not personally addressed by the court. The PCR court upheld the amended sentence, finding that a hearing on the merits portion of the parole violation was sufficient to satisfy his procedural due process rights. Petitioner then appealed.

Holding: The Court stated that it was addressing the sole question of whether the court was right to accept an agreement regarding sentencing when defendant allegedly waived his right to contest the revocation of probation, his right to address a proper sentence with the court, and his right to appeal these decisions, when there was no written or recorded agreement to this effect filed with the court, and when the defendant was not present at the hearing. The Court cited to several U.S. Supreme Court holdings to conclude that prisoners’ due process rights include not only an opportunity to be heard on the underlying probation violation, but also an express right to a “mitigation hearing” in which a defendant may argue against revocation of the initial sentencing agreement and present evidence in his defense. The majority concluded with a rebuke of the dissenting opinion, in which it stated that it does not hold that Rule 11 must apply to a criminal defendant’s waiver during a violation of parole hearing, or that any formal procedure must occur, but merely held that the waiver must still be knowing and voluntary under a totality of the circumstances analysis. Finally, the Court held that the amended sentence was, in fact, illegal under 28 V.S.A. § 304 and that, at that time, the court’s only power was to impose the full term of the initial 2010 sentence, but not to impose a wholly new sentence. The Court remanded for further hearings to determine whether Petitioner did, in fact, give “knowing, voluntary, and intelligent” waiver of his right to contest, present mitigating evidence, and appeal the revocation of his initial sentencing agreement.

Concurrence and Dissent, Bent, Supr. J., Specially Assigned (joined by Skoglund, J.): Judge Bent wrote to concur with the majority’s application of a totality of the circumstances test to determine whether the waiver was knowing and voluntary, and the Court’s decision not to address whether this standard requires an in-court personal waiver by the defendant. He dissented because – based his contrary reading of the case law cited by the majority – he believed that Petitioner’s waiver was, in fact, knowing and voluntary.