In re Mark Jankowski

Summary

The Vermont Supreme Court held that the petitioner was entitled to post-conviction relief overturning his probation revocation. The court concluded that a probationer has due process rights during the disposition phase of a probation-revocation proceeding, including the opportunity to contest revocation and present mitigating evidence. It further held that any waiver of those rights and of the right to appeal must be knowing, voluntary, and intelligent, and remanded for a new revocation determination and sentencing hearing if necessary.

Holdings

1. A probationer's due process and rule-based procedural rights continue through the revocation decision; after a violation is found, the probationer must have an opportunity to contest revocation and present mitigating arguments or evidence concerning whether revocation is warranted.
2. A waiver of the right to contest revocation and present mitigation must be knowing, voluntary, and intelligent. The record did not establish such a waiver where counsel reported an agreement after a brief recess, the defendant was not personally addressed, and the defendant never spoke.
3. After a probation violation is established, 28 V.S.A. § 304 does not authorize the court to revoke probation and impose an entirely different sentence from the sentence originally imposed. The court may select only the statutory options authorized by the Legislature.

Questions Presented

1. Whether due process and Vermont Rule of Criminal Procedure 32.1 require a probationer to receive an opportunity to contest whether probation should be revoked after a violation has been found.
2. Whether a waiver of the right to contest revocation, present mitigation, accept a sentence, and appeal was knowing, voluntary, and intelligent when it was communicated only by counsel and the defendant was not personally addressed.
3. Whether the trial court had statutory authority under 28 V.S.A. § 304 to revoke probation and impose a different sentence from the original sentence.

Disposition

reversed_and_remanded