NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

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before this opinion goes to press.

2016 VT 112

No. 2015-194

In re Mark Jankowski Supreme Court

On Appeal from

Superior Court, Rutland Unit,

Civil Division

April Term, 2016

William D. Cohen, J. (motion for summary judgment); Cortland Corsones, J. (final judgment)

Allison N. Fulcher of Martin & Associates, Barre, for Petitioner-Appellant.

Rosemary M. Kennedy, Rutland County State’s Attorney, and Ian C. Sullivan, 

 Deputy State’s Attorney, Rutland, for Respondent-Appellee.

PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Bent, Supr. J., Specially Assigned

¶ 1. DOOLEY, J. Petitioner appeals from a denial of his petition for post-conviction 

relief (PCR). We hold that petitioner is entitled to PCR to overturn his probation revocation. We 

remand for a new determination regarding whether his probation should be revoked and a new 

sentencing hearing if it is revoked. 

¶ 2. In November 2010, petitioner pled guilty to sexual assault on a child, and was 

sentenced to a term of five to twenty years, all suspended except for three years to serve, and 

probation. He was charged with violation of probation (VOP) in August 2011. A VOP merits 

hearing was held in December 2011. Following a contested evidentiary hearing, the court issued 

a written decision finding that petitioner had violated a condition of his probation. At the 
2

conclusion of its decision, the court indicated that the matter would be “set for a sentencing 

hearing.” At the sentencing hearing on March 13, 2012, the court asked if it would be a contested 

sentencing hearing, prompting counsel for the State and for petitioner to ask for time to confer. 

Their request was granted. Upon their return to court with petitioner, counsel informed the court 

that the parties had reached an agreement. Petitioner’s sentence would be amended from a fiveto-twenty-year split sentence with three years to serve to a four-to-twenty-years straight sentence 

to serve. His probation would be revoked. He would also be given credit for all time served. 

Defense counsel indicated that he had spoken with petitioner and stated that petitioner had agreed 

with the resolution. The court accepted the agreement. 

¶ 3. In March 2013, petitioner filed a pro se PCR petition, and later an amended petition 

through counsel, alleging that the VOP sentencing process violated his constitutional rights. He 

asserted that no sentencing hearing was held, he did not waive such hearing, and he was never 

personally addressed by the court. The PCR court granted summary judgment to the State. It 

concluded that petitioner’s rights were satisfied when he was afforded a full evidentiary hearing 

on the merits portion of the revocation hearing. This appeal followed.

¶ 4. Petitioner reiterates his argument that he was deprived of due process by the court’s 

failure to hold a hearing on the sentencing portion of the VOP proceeding without a valid waiver. 

Petitioner contends that Vermont Rule of Criminal Procedure 32.1 codifies due process 

requirements established by the U.S. Supreme Court, and that the Court established that a 

probation revocation hearing includes not only a hearing on the merits of the violation, but also a 

hearing on whether revocation is warranted. 

¶ 5. We review the court’s decision de novo, using the same standard as the trial court. 

In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322, 848 A.2d 281. Summary judgment is appropriate if 

there are no disputes of material fact and any party is entitled to judgment as a matter of law. Id. 
3

¶ 6. We note at the outset the procedure by which a court may revoke a defendant’s 

probation and impose the consequences of revocation. Following the summons or arrest of a 

probationer who has allegedly violated a condition or conditions of probation, a court must hold 

an evidentiary hearing that includes notice to the probationer, legal counsel if requested, and a 

record that establishes the alleged violation by a preponderance of the evidence. 28 V.S.A. § 301; 

id. § 302(a). This is the violation stage of the proceeding. If a violation is established, the court 

may elect to continue probation, modify conditions of probation, conference with the probationer, 

issue a warning, or require the probationer to remain on probation but serve a portion of her 

sentence. Id. § 304(b). The court may also, “in its discretion,” revoke probation and order a 

probationer to serve the balance of her sentence in prison or in the community. Id. § 304(a). 

Probation shall be revoked only if the court finds, “on the basis of the original offense and the 

intervening conduct of the probationer,” that confinement is necessary for public safety, the 

probationer needs treatment that can be best provided in a correctional facility, or a failure to 

revoke probation would “unduly depreciate the seriousness of the violation.” Id. § 303(b). This 

is the disposition phase of the proceeding. 

¶ 7. Defendant has not challenged the court’s determination that he violated one of the 

conditions of his probation or the process by which the court reached that conclusion. The sole 

question is whether the court erred in accepting an alleged agreement under which defendant 

waived his right to contest whether his probation should be revoked, waived his right to address 

the proper sentence after revocation of probation, and waived his right to appeal, all without the 

written or on-the-record-agreement of defendant. The PCR court appeared to hold that once the 

court finds defendant violated a condition of probation, defendant no longer has any due process 

or rule-based procedural rights such that his right to personal agreement with a knowing and 

intelligent waiver of the right to contest probation revocation is unnecessary. We disagree for 

three reasons. 
4

¶ 8. Firstly, the PCR court appeared to believe that defendant’s due process rights

vanished following the evidentiary hearing on the alleged violation of a probation condition; in 

other words, because the VOP court afforded defendant notice, an opportunity to confront adverse 

witnesses, and a chance to present evidence during the violation stage of the probation revocation 

proceeding, there was no corollary obligation to provide any procedural rights thereafter. 

However, the procedural rights afforded to a probationer to permit her to contest allegations of a 

violation of probation extend from the initial charge through revocation; a delineation between 

adjudication and probation revocation has no basis in the law of probation—be it our criminal 

rules, our precedent, federal cases, or the law of our sister states. Rather, the procedural rights 

afforded to a probationer are available until the court rules that probation will be revoked. 

¶ 9. Albeit in the context of parole revocation, the due process procedural requirements 

for revocation were first set forth by the U.S. Supreme Court in Morrissey v. Brewer. 408 U.S. 

471 (1972). In that case, the federal high court held that, following a preliminary hearing, a parolee 

may request a revocation hearing during which he “must have an opportunity to be heard and to 

show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation 

suggest that the violation does not warrant revocation.” Id. at 488 (emphasis added); see also 

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (concluding Morrissey also applies to probation 

revocation proceedings). The Morrissey Court recognized that the decision to revoke parole 

typically involves two steps: the factual question, wherein a court determines whether a parolee 

has “in fact acted in violation of one or more conditions of his parole,” and the discretionary 

question, which seeks to answer whether the parolee should be recommitted to an institution or 

punished in some other fashion. Morrissey, 408 U.S. at 479-80. The U.S. Supreme Court

emphasized that the second component was not so wholly a discretionary matter that procedural 

guarantees were “administratively intolerable.” Id. at 483. In particular, the Court noted that 

society has an interest in rehabilitating parolees, and therefore an interest in preventing the 
5

erroneous revocation of parole and in treating parolees with “basic fairness” which supports the 

recognition of due process rights throughout the proceedings. Id. at 484. To that end, the Court 

concluded that at a hearing to determine whether “the facts as determined warrant revocation,” a 

court must, at a minimum, provide written notice of the claimed violations, disclose all evidence 

against the defendant, provide an opportunity to be “heard in person” as well as present witnesses 

and evidence, allow the defendant to confront adverse witnesses, preside over the case through a 

neutral and detached hearing body, and finally, provide a written statement articulating the 

evidence relied on and reasons for revoking parole. Id. at 488-89. 

¶ 10. In Black v. Romano, the U.S. Supreme Court further elaborated on Morrissey with 

respect to the coverage and extent of the due process right. 471 U.S. 606 (1985). In Black, the 

trial court revoked probation without expressly stating that it considered alternatives to revocation. 

The Court rejected the claim that due process required consideration of an alternative, but 

reiterated the due process procedural protections of Morrissey and their applicability at the 

revocation stage:

Where such discretion [with respect to revocation] exists, however, 

the parolee or probationer is entitled to an opportunity to show not 

only that he did not violate the conditions, but also that there was a 

justifiable excuse for any violation or that revocation is not the 

appropriate disposition. 

Id. at 612. The Court went on to hold that probationer received the process that was due because 

he received “the necessary written statement explaining the evidence relied upon and the reason 

for the decision to revoke probation” and “he had a full opportunity to present mitigating factors 

to the sentencing judge and to propose alternatives to incarceration.” Id. at 616.

¶ 11. The effect of the holdings in Morrissey, Gagnon, and Black on probationer’s right 

to address whether probation should be revoked after a finding of violation was directly resolved 

in State v. Talton. 737 P.2d 409 (Ariz. Ct. App. 1987). In Talton, the court held that under U.S.

Supreme Court decisions, the probationer was constitutionally entitled to two hearings: one to 
6

determine whether there was a violation of a condition of probation and one to determine whether 

probation should be revoked. Id. at 411. At the latter hearing, the probationer has the right to 

present mitigating evidence to argue that probation should not be revoked. Id. The mitigation can 

be part of an overall disposition hearing. Id. Failure to allow the probationer to have a mitigation 

hearing is a violation of due process that results in the reversal of a revocation of probation. Id. at 

412; see also State v. Montoya, 596 P.2d 527, 529 (N.M. Ct. App. 1979); Brown v. United States, 

900 A.2d 184, 192-93 (D.C. 2006) (concluding probationer constitutionally entitled to mitigation 

evidence after finding of violation).

¶ 12. Like the above courts, we cannot square the clear directives from the U.S. Supreme 

Court with the PCR court’s decision. Under the PCR court’s position, the probationer has no right 

to address whether probation should be revoked by either arguing against revocation or offering

evidence or alternatives to revocation. Although we recognize that we have held that a probationer 

has no right of “allocution prior to the imposition of sentence” in a probation proceeding, the PCR 

court’s position is nonetheless directly contradictory to the plain language of both Morrissey and 

Black. See State v. Germaine, 152 Vt. 106, 107, 564 A.2d 604, 605 (1989); V.R.Cr.P. 32(a)(1)(C). 

Under both Morrissey and Black, there is no distinction between the process due with respect to 

an adjudication that a violation has occurred and the process due with respect to the revocation 

decision.

¶ 13. Before closing on this point, we must address V.R.Cr.P. 32.1, the criminal rule on 

probation revocation. The rule is based on Federal Rule of Criminal Procedure 32.1 which in turn 

was adopted to implement Morrissey and Gagnon. See Advisory Committee Notes—1979 

Amendment, F.R.Cr.P. 32.1. The applicable part of the federal rule governing “a final revocation 

hearing” covers “whether the probationer has, in fact, violated the conditions of his probation and 

whether his probation should be revoked.” Advisory Committee Notes—1979 Amendment, 

F.R.Cr.P. 32.1(a)(2) (emphasis added). The rule is titled “Revocation Hearing” and contained no 
7

procedural requirements with respect to the imposition of a sentence after a revocation decision is 

made.1 The key section of the Vermont Rule, V.R.Cr.P. 32.1(a)(2), is similarly headed 

“Revocation Hearing” and there is no indication that it deviates from the Federal Rule by applying 

procedural rights only to the violation determination. 

¶ 14. Based on the above discussion, we conclude that probationer undoubtedly had due 

process rights with respect to the revocation decision. This does not mean, however, that 

probationer is entitled to relief. We must determine whether probationer validly waived his due 

process rights. The dispositive question is whether the waiver of the right to contest revocation, 

the agreement to a sentence, and the waiver of the right to appeal could be effective without 

defendant’s explicit consent. 

¶ 15. In his brief to this Court, defendant argues that although he was present in court, no 

hearing was actually held; defendant’s counsel and the attorney for the State informed the court, 

after a brief consultation, that an agreement had been reached and, consequently, defendant’s 

probation was revoked and he lost any right to appeal the decision. Defendant contends that 

because he was never addressed by the court and never spoke during the proceeding, he “could not 

have waived his right” to contest the revocation of his probation. We need not decide whether a 

waiver can ever be deemed knowing and voluntary pursuant to the totality of the circumstances 

test if the defendant does not personally acknowledge the waiver in court because we conclude 

that in this case there is insufficient evidence to support the conclusion that defendant made a 

knowing and voluntary waiver.

 

1

 It now contains an explicit procedure for allocution after a number of federal courts held 

that a right of allocution was required by due process. See Advisory Committee Notes—2005 

Amendments, F.R.Cr.P. 32.1(b). As we indicated in the text, we do not view the revocation stage 

as involving allocution so we are not relying on the decisions on which the federal amendment 

was based. 
8

¶ 16. In neglecting to address defendant personally and inquire as to whether he 

consented to the agreement proposed by the attorneys, the court permitted defendant’s attorney to 

assume a responsibility properly belonging to his client. State v. Duffy is controlling on this point. 

151 Vt. 473, 562 A.2d 1036 (1989). In that case, during a violation of probation hearing, the 

defendant and the trial court engaged in a colloquy, during which the defendant, notwithstanding 

the court’s willingness to “give him one more chance” to comply with conditions, asked to serve 

the balance of his remaining sentence. Id. at 475, 562 A.2d at 1037. The trial court accordingly 

revoked his probation and imposed the remainder of the previously suspended sentence. On 

appeal, the defendant argued that by “allowing [the] defendant to speak for himself at the probation 

hearing,” the trial court granted an invalid waiver of counsel. Id. at 474, 562 A.2d at 1037. We 

disagreed, reasoning that: 

 The problem with [the] defendant’s argument here is that it 

confuses the role of the client with that of the lawyer. We have 

recognized the authority of a lawyer to act for a client and to control 

the procedural aspects of his client’s case without his client’s 

express consent. While the lawyer can control procedural matters, 

the client has control over the subject matter of litigation. Thus, it 

is the client, and not the lawyer, that must decide whether to settle 

and on what terms. In a criminal case, it is for the client to decide 

what plea should be entered. 

Id. at 479, 562 A.2d at 1039 (quotations and citations omitted); see also Strickland v. Washington, 

466 U.S. 668, 688 (1984) (noting that attorney must function as “assistant to the defendant” with 

a duty to “consult with the defendant on important decisions”). 

¶ 17. Under Duffy, the decision whether to waive probationer’s due process right to 

contest revocation belongs to the client and not the lawyer. In this case, the waiver was done by 

probationer’s lawyer, not the probationer, but the lawyer was ostensibly speaking for the client 

and within the hearing of the client. 

¶ 18. Although this is an issue of first impression in Vermont, case law from the federal 

courts and our sister states is clear that waivers of the right to revocation hearings or to generally 
9

contest charges of violation of probation must come from a probationer and must be knowing, 

voluntary, and intelligent.2

¶ 19. Hersch v. State is instructive here. 562 A.2d 1254 (Md. 1989). In Hersch, the 

Maryland Court of Appeals considered two cases that asked the court to determine whether an 

admission of violation and probation can be knowing and voluntary where a charge is not 

explained to a probationer, he “does not personally address the court,” and the record is devoid of 

any evidence that he understands his due process right to contest the charges. Id. at 1256. In the 

first case, during the adjudicatory portion of a violation hearing, the court asked if the defendant 

admitted or denied the allegations and the defendant’s attorney responded: “He admits, Your 

Honor.” Id. at 1255. Following remarks from both attorneys on disposition and a brief allocution 

by the defendant as to his drug addiction, the court reimposed the original prison sentence. In the 

second case, during a bond hearing in connection with a defendant’s detention for an alleged 

probation violation, his attorney stated they “would enter an initial plea of guilty” to an amended 

count and admitted that his client had not obeyed all laws during his probation. Id. After both 

attorneys made arguments regarding sentencing and the defendant made a statement about his 

problems with drugs, the court imposed the initial sentence. Id. at 1256. 

¶ 20. The Maryland appellate court reversed. The court noted that while there are rights 

that “may be waived by the action or inaction of counsel,” there remain “certain fundamental rights 

that can be waived only where the record affirmatively discloses a voluntary, knowing, and 

intelligent relinquishment of the right by the defendant himself.” Id. The court acknowledged that 

admitting a violation of probation is not the “legal equivalent” of a guilty plea in a criminal case; 

nevertheless, it noted that the rights surrendered when a probationer admits a violation are 

 

2

 As stated in ¶ 15, we are not deciding in this case whether the defendant must personally 

agree to a waiver on the record. Our holding is that whether or not a personal on-the-record waiver 

is required, the waiver in this case is inadequate.
10

“substantial.” Id. at 1256-57. The court concluded that fundamental fairness required, if the right 

to contest violations of probation is waived, “the record must show that ‘the charge was explained 

to the probationer in understandable terms and that his responses demonstrated that his actions 

were knowing and voluntary.’ ” Id. at 1258 (quoting Howlett v. State, 456 A.2d 375, 380 (Md. 

1983)). The court noted that its approach found “substantial support in other jurisdictions,” and 

cited cases from Michigan, Arizona, Pennsylvania, and Illinois affirming that fundamental fairness 

requires that a probationer “personally admit violation of probation on the record” as well as that 

he knows and comprehends the due process rights he is about to waive. Id. at 1258 (quoting People 

v. Allen, 248 N.W. 2d 588, 589 (Mich. Ct. App. 1976)); accord United States v. LeBlanc, 175 F.3d 

511, 515 (7th Cir. 1999) (holding that waiver of right to revocation hearing under F.R.Cr.P. 32.1

and Morrissey “must be knowing and voluntary”); United States v. Pelensky, 129 F.3d 63, 68 n.9 

(2d Cir. 1997) (concluding that while due process does not require formal waiver in probation 

revocation context, defendant’s waiver of Rule 32.1 rights “must actually be knowing and 

voluntary”); United States v. Stocks, 104 F.3d 308, 312 (9th Cir. 1997) (finding waiver of Rule 

32.1 rights must be knowing, intelligent and voluntary).

¶ 21. We recognize that the knowing and intelligent waiver cases involved a waiver of 

the right to contest whether there had been a violation of a probation condition, as well as a waiver 

of the right to contest revocation based on the violation. We can find no precedents that address 

the exact facts of our case, where the waiver is only of the right to contest revocation. We see no 

reason for this distinction to dictate a difference in result. The constitutional basis for the 

underlying right is derived from the same U.S. Supreme Court precedents. We therefore hold that 

the waiver of the right to contest revocation and offer arguments and evidence in mitigation must 

be knowing, voluntary, and intelligent. 

¶ 22. There is another form of waiver in this case that adds weight to the requirement that 

it be knowing and intelligent. The accord between the State and defendant’s counsel contained a 
11

promise by defendant not to appeal or question the trial court’s determinations regarding the VOPs. 

We note at the outset that the choice to take—or not take—an appeal is a “fundamental decision[]” 

regarding a case that a defendant “has the ultimate authority to make.” Jones v. Barnes, 463 U.S. 

745, 751 (1983); accord State v. Tribble, 2012 VT 105, ¶ 54, 193 Vt. 194, 67 A.3d 210 (noting 

that some decisions “are so important that an attorney must seek the client’s consent in order to 

waive the right” (quoting Gonzalez v. United States, 553 U.S. 242, 250 (2008)). As this Court has 

noted before, such fundamental rights cannot be so easily discarded, absent a statement from 

defendant. See State v. Machia, 155 Vt. 192, 200, 585 A.2d 556, 560 (Dooley, J., dissenting) 

(disagreeing with majority opinion permitting defense counsel’s stipulation to eleven-member jury 

on basis of defendant’s implied consent and stating that because defendant “did not personally 

waive his right to a twelve-person jury, the waiver was constitutionally defective”).

¶ 23. We note that the waiver of appeal rights contravenes our holding in State v. Buck, 

139 Vt. 310, 428 A.2d 1090 (1981).3 In Buck, partially as “the result of an ‘agreement’ between 

the defendant and the State,” the defendant was placed on probation provided he accepted “definite 

restrictions upon the issues which [he] could raise before [this Court] in an appeal.” Id. at 314, 

428 A.2d at 1093. We reversed, holding that we could “neither condone nor enforce such a 

condition,” as the right of appeal for criminal defendants is “conferred absolutely by statute” and 

“its restriction or prohibition as a condition of sentence deferment or probation cannot be 

reconciled with that statute.” Id. at 314-15, 428 A.2d at 1093 (citing 13 V.S.A. § 7401). The 

restriction in the instant case is even more broad than that in Buck; rather than limiting defendant 

to appealing only particular issues, the provision would preclude defendant from engaging in “any 

 

3

 We noted that the holding in Buck was dicta in State v. Hance, 157 Vt. 222, 224, 596 

A.2d 365, 366 (1991), but ultimately distinguished the holding on the waiver of the right of appeal. 

Whether the waiver of the right to appeal the VOP holding was valid is relatively unimportant in 

this case where defendant does not challenge that holding. The point is that a waiver of an 

important right of defendant was accepted with no confirmation that defendant agreed to waive 

that right and no assurance that the waiver was knowing and intelligent.
12

further activity, legal or otherwise” that seeks to appeal or question the court’s determination as to 

the VOPs. 

¶ 24. With the above standards in mind, what occurred here cannot pass constitutional 

muster. The sentencing hearing in this case lasted only ten minutes; seven of those were spent in 

a recess, during which the attorneys—who had not previously spoken—communicated about 

whether or not the hearing would be contested. Following the recess, the State’s attorney described 

the agreement: the parties consented to revocation of probation with a four-to-twenty-year 

sentence to be imposed, with credit for all previous time served and agreed not to appeal or 

question the trial court’s determinations regarding the VOPs. When prompted by the court, 

defendant’s attorney said only that he had “talked about this proposal with [his] client, we feel that 

it is agreeable.” Not only does the transcript bear little evidence that the attorney “fully advised 

defendant of his options” and informed him of all relevant considerations as to the revocation 

agreement—a seemingly impossible task, as the recess was only seven minutes, much of which 

was spent in conversation with the State’s attorney—but it reveals defendant never said a word, 

and so did not communicate to the court the content of a decision that was his alone to make.4 

Duffy, 151 Vt. at 479, 562 A.2d at 1039. 

¶ 25. The absolute invisibility of defendant in the record highlights the contrast between 

this case and those published decisions cited by the dissent, where even if a trial court did not 

specifically inform a probationer of his rights and no explicit waiver was made, the probationer 

nonetheless had an opportunity to address the court. See State v. Sellers, 649 S.E.2d 656, 727 

 

4

 The uncertainty surrounding the degree to which defendant encouraged or even 

acquiesced to his attorney’s assent belies the dissent’s assertion that Duffy cannot control on the 

ground that Duffy merely resolved who may make the decision, not how that decision must be 

communicated to the trial court. Post, ¶ 35. Where there is little to no evidence in the record that 

defendant was solely responsible for this crucial decision, we must err on the side of safeguarding 

the distinct roles of lawyer and client. 
13

(N.C. Ct. App. 2007) (“Defendant then addressed the court, admitted that he uses drugs, and 

apologized for ‘whatever I did in Structured Day Program.’ ”); People v. Dale, 112 Cal. Rptr. 93, 

94 (Cal. Ct. App. 1974) (“Appellant personally sought to convince the trial court that he should be 

recommitted to the California Rehabilitation Center.”). Here, the trial court never addressed 

defendant personally with respect to the waiver and never made a determination that it was 

knowingly and intelligently made, an inquiry that was particularly warranted given the haste with 

which the “agreement” was put together.

¶ 26. The dissent’s reliance on a series of federal cases is also misplaced. Post, ¶ 38. The 

dissent appears to suggest that we seek to implement a formal waiver process or to force courts to 

invoke a “particular mantra” when considering whether a waiver is knowing, intelligent, or 

voluntary. In support of its position, the dissent has cited United States v. Hodges, and notes that 

a comprehensive Rule 11 colloquy is not required where a “totality of circumstances” shows 

waiver was knowing and voluntary. Post, ¶ 38 (quoting 460 F.3d 646, 652 (5th Cir. 2006)). We 

maintain that our above analysis is perfectly in keeping with Hodges. we conclude that, given the 

brevity of the hearing as a whole, and the conference between the attorneys in particular, combined 

with the fact that defendant never spoke or was addressed by the court, the totality of circumstances 

suggests that whether the waiver was voluntary, intelligent, and knowing was questionable. 

¶ 27. To that end, because we are not holding that Rule 11 must apply to a criminal 

defendant’s waiver during a violation of probation hearing or that any kind of specific, formal 

procedure must occur, it is difficult to see the relevance of the cases the dissent cites. Those cases 

are clear that even though no on-the-record colloquy is required, the totality of the circumstances 

must nonetheless demonstrate that the waiver was knowing and voluntary, the basis of our decision 

here. See Pelensky, 129 F.3d at 68 n.9 (noting court’s holding “[did] not address the situation 

where there is independent evidence in the record suggesting” admission and waiver of a hearing 

or attendant rights “was not knowing and voluntary—a situation that does not exist in the instant 
14

case.”); United States v. Melton, 782 F.3d 306, 312 (6th Cir. 2015) (concluding defendant’s claim 

“fails under the totality of the circumstances standard” where there was record evidence that 

defendant reviewed supervised release violation report, “discussed it with his attorney and 

confirmed with the magistrate judge that he understood the report and still intended to admit to the 

violations,” where judge “informed defendant the rights he would be waiving” and where judge 

“conducted a very thorough colloquy before it accepted defendant’s admission” (quotations 

omitted)); Hodges, 460 F.3d at 652-53 (finding waiver of right to counsel knowing and voluntary 

where defendant “expressed not only an understanding of the purpose and possible repercussions 

of the hearing” but “specifically noted that the facts alleged against him constituted a class B 

violation,” defendant was warned by court and his counsel of dangers of self-representation, court 

explained to defendant his rights relating to hearing, and court allowed defendant to consult with 

former counsel throughout hearing and transcript “indicates several points at which [defendant] 

did in fact consult with his former counsel”); United States v. Segal, 549 F.2d 1293, 1296 (9th Cir. 

1977) (holding only that Boykin and Rule 11 protections do not apply to probation revocation 

hearings without engaging in totality of circumstances argument, as defendant did not argue plea 

was unintelligent and unknowing). 

¶ 28. As discussed supra ¶ 24, the record evidence—or dearth thereof—does not show 

us that defendant’s waiver was knowing, intelligent, and voluntary. See United States v. CorreaTorres, 326 F.3d 18, 23 (1st Cir. 2003) (determining no evidence to show defendant’s waiver was 

knowing and voluntary where defendant “said very little over the course of the hearing,” exchanges 

between court and defense counsel “did little to clarify matters,” and “the record does not reflect 

either that the court advised [defendant] of his rights or that counsel reviewed those rights with 

him”).

¶ 29. This leads us to our final consideration. That there was ever an “agreement” in the 

first place as to disposition highlights the fact that, ultimately, this was not a revocation hearing 
15

but an agreement on an illegal new sentence, outside of the reconsideration period and in 

contravention of 28 V.S.A. § 304. When defendant initially pled guilty in 2010, he was sentenced 

to a term of five-to-twenty years, all suspended except for three years. Following the March 13, 

2012, hearing, pursuant to the aforementioned agreement between the attorneys, the court amended 

defendant’s sentence to a term of four-to-twenty years to serve, with credit for time already served. 

Setting aside the fact that the court never asked defendant whether he agreed and never ensured 

the waiver was knowing and intelligent, the VOP court had no authority to impose a different 

sentence. Under § 304, the Legislature has identified the specific options available to a court 

following the establishment of a violation of a probation condition. The court has discretion to 

“revoke probation and require the probationer to serve the sentence which was suspended or order 

that the sentence be served in the community.” 28 V.S.A. § 304(a). Or, instead of probation

revocation, a court may: (1) continue probationer on her existing sentence, (2) put in place 

“necessary or desirable changes or enlargements in the conditions of probation,” (3) hold a 

conference with probationer in order to emphasize compliance with probation conditions, (4) issue 

a warning that probation may be revoked in case of further violations, or, (5) continue 

probationer’s existing sentence and require probationer to serve a portion of his sentence. 28 

V.S.A. § 304(b).

¶ 30. The fact that the parties agreed to the sentence—itself a questionable proposition, 

given the above analysis—is irrelevant. The court derives its sentencing authority from the 

Legislature, which chose to afford judges discretion under § 304 to select among the enumerated 

options. Nowhere in the statute is it indicated that a judge may fashion an entirely new sentence. 

¶ 31. State v. Pratt fully resolves this issue. 173 Vt. 562, 795 A.2d 1148 (2002) (mem.). 

In Pratt, we considered two cases consolidated on appeal where the superior court had read § 304 

in conjunction with 28 V.S.A. § 205(a), which provides for courts to suspend all or part of a 
16

sentence “[a]fter passing sentence” to conclude that trial courts are permitted to impose splitsentences for probation violations. We reversed, holding:

[C]ourts have no authority to suspend a sentence or impose a 

sentence contrary to that authorized by the Legislature. In looking 

at the legislative authorization, we must use familiar rules of 

statutory construction. Our principal goal is to effectuate the intent 

of the Legislature. If the legislative intent is clear from the plain 

meaning of the language chosen, we enforce the statute according to 

its terms. If different sections of statutes were drafted as part of an 

overall statutory scheme, we must read and construe them together. 

In State v. Therrien, 140 Vt. 625, 627–28, 442 A.2d 1299, 1301 

(1982), we described the options available under § 304 as “to revoke 

probation and require the original sentence to be served, continue 

probation, or alter the conditions of probation.” This list of options 

comports with the plain meaning of the language used by the 

Legislature. The options do not include the one attempted to be 

exercised here, revocation of probation and imposition of a different 

sentence from that imposed originally.

We do not reach a different conclusion when we read § 304 together 

with 28 V.S.A. § 205(a). Section 205(a) provides that “[a]fter 

passing sentence, a court may suspend all or part of the sentence” 

and place the defendant on probation. We held in Therrien that the 

sentence is “passed” when it is originally imposed and suspended, 

not when the court requires that it be served upon revocation of 

probation. Except where there is a specific legislative authorization, 

a court cannot modify a sentence once the defendant has 

commenced to serve it. 

Pratt, 173 Vt. at 564, 795 A.2d at 1150 (citations omitted). 

¶ 32. In summary, defendant had a right to be heard and to contest the State’s position on 

whether his probation should be revoked. The trial court held that he waived that right because of 

an agreement consented to only by his lawyer even though the decision whether to contest 

revocation must be made by probationer personally. As a result, there is no indication in the record 

that defendant’s waiver, even if agreed to by him, is knowing and intelligent. Moreover, the court 

acted outside of its authority under § 304 in fashioning his sentence. Accordingly, we hold that 

defendant is entitled to post-conviction relief to overturn his probation revocation and remand for 
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a new determination on whether his probation should be revoked and a new sentencing hearing if 

it is revoked. 

Reversed and remanded. 

Associate Justice

¶ 33. BENT, Supr. J., Specially Assigned, concurring and dissenting. I concur in the 

majority’s holding that this Court looks to the totality of the circumstances to determine whether 

a defendant’s waiver of due process rights in a probation revocation proceeding was knowing and 

voluntary. In so holding, the majority expressly declines to address defendant’s claim that a 

knowing and voluntary waiver requires an in-court personal waiver by the defendant. I agree with 

this decision as well. 

¶ 34. I write separately for two reasons. First, despite the majority’s express reservation 

of the question of whether a personal in-court waiver is required, its decision can easily be read to 

suggest otherwise. Three statements in the majority opinion, in particular, require clarification. 

First, the majority states: “The dispositive question is whether the waiver of the right to contest 

revocation, the agreement to a sentence, and the waiver of the right to appeal could be effective 

without defendant’s explicit consent.” Ante, ¶ 14 (emphasis added). Plainly, that is not the 

question that determines how this appeal should be decided inasmuch as the majority states in the 

very next paragraph that we “need not decide whether a waiver can ever be deemed knowing and 

voluntary . . . if the defendant does not personally acknowledge the waiver in court.” Ante, ¶ 15.

¶ 35. Second, the majority states: “In neglecting to address defendant personally and 

inquire as to whether he consented to the agreement proposed by the attorneys, the court permitted 

defendant’s attorney to assume a responsibility properly belonging to his client. State v. Duffy is 

controlling on this point. 151 Vt. 473, 562 A.2d 1036 (1989).” Ante, ¶ 16. Duffy holds that the 
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decision to contest a revocation of probation is personal to the defendant. It does not hold that a 

defendant must personally waive the right in open court. The majority is therefore incorrect in 

stating that, by failing to “address defendant personally and inquire as to whether he consented to 

the agreement” the court contravened the holding in Duffy. This is important to understand 

because, if Duffy actually required that the trial court personally address the defendant to inquire 

as to whether he or she consented to the waiver, then the majority’s reservation of the question 

whether “the defendant must personally agree to a waiver on the record,” ante, ¶ 18 n.2, would be 

meaningless. 

¶ 36. Third, the majority’s reliance on Hersch v. State, 562 A.2d 1254 (Md. 1989) as 

“instructive here” is unnecessary and misplaced. Ante, ¶ 19. First, that decision involved two 

consolidated appeals where, in each case, the defendant’s attorney admitted a charged probation 

violation without giving any indication that the attorney had consulted with the defendant or that 

the defendant agreed with the admission. The facts here, as discussed below, are entirely 

distinguishable. More important, the Hersch court concluded that the waivers were ineffective 

because neither of the defendants had “personally admitted” the violations charged and “personally 

advised” the court that he wished to waive a contested hearing and admit the charge. Hersch, 562 

A.2d at 1259. Given the majority’s express reservation of the question whether a personal on-therecord waiver by the defendant is required, Hersch is not, in fact, instructive for our purposes here. 

¶ 37. Second, I disagree with the majority’s application of the totality-of-thecircumstances test in this case. Although relatively sparse, the record is sufficient to demonstrate 

that defendant’s waiver of a contested sentencing hearing was knowing and voluntary. At the 

scheduled hearing, defendant was present in court when the prosecutor explained to the trial court 

that the parties had formulated an agreement which provided for a stipulation to a revocation of 

probation, a reduction in sentence, and credit for all time served. The net effect was to move 

defendant to within several months of his new minimum sentence. This was plainly a favorable 
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outcome for defendant. Defendant’s attorney then affirmatively represented to the court that 

counsel had “talked about this proposal with my client, we feel that it is agreeable.” Counsel 

thereupon outlined the total credit for time served that defendant would receive under the 

agreement. At no point during this discussion did defendant, who had a lengthy criminal history 

which included a prior revocation of probation, raise any objection to the agreement. Indeed, apart 

from his general claim that a knowing and voluntary waiver requires a personal, in-court waiver 

by the defendant, defendant here has not claimed that his waiver was involuntary or unknowing, 

or that he was somehow prejudiced by the agreement. In none of his pleadings has defendant 

asserted that his attorney misrepresented to the court the fact that defendant was agreeable to the 

stipulation, or the terms of the agreement. 

¶ 38. In these circumstances, there is ample reason and good authority to conclude that 

the waiver was knowing and voluntary. See, e.g., United States v. Farrell, 393 F.3d 498, 500 (4th 

Cir. 2005) (upholding waiver of contested revocation hearing where defense counsel “explicitly 

stated, in [defendant’s] presence, that [defendant] admitted to” the violations, defendant did not 

object to the assertion, and it was clear from the totality of the circumstances that the waiver was 

knowing and voluntary); United States v. Tapia-Escalera, 356 F.3d 181, 182, 194 (1st Cir. 2004) 

(rejecting defendant’s claim that “there was no proper waiver of his right to a hearing to contest 

the charge” where defense counsel informed court that defendant admitted probation violation 

charge, noting that the defendant was present when counsel waived the hearing and had raised no 

protest, that defendant was “not a novice” in such matters, and that defendant had not “identified 

anything that he misunderstood”); United States v. Taylor, 747 F.3d 516, 518, 519 (8th Cir. 2014) 

(upholding waiver of contested revocation where defense counsel, with defendant present, 

“informed the court that his client admitted all the charged violations” of his supervised release, 

and rejecting defendant’s claim that “a personal inquiry was required” to ensure that waiver was 

knowing and voluntary); People v. DeGarmo, No. A128716, 2011 WL 1885259, at * 6 (Cal. Ct. 
20

App. May 18, 2011) (relying on People v. Dale, 112 Cal. Rptr. 93 (Cal. Ct. App. 1974) for 

proposition that “[i]n the context of a revocation of probation, a defendant can waive the formal 

requirements and admit a probation violation through the conduct of counsel and his own silence”); 

State v. Sellers, 649 S.E.2d 656, 657 (N.C. Ct. App. 2007) (rejecting defendant’s claim that court 

violated his due process rights when it “relied on the assertions of his counsel and failed to make 

an adequate personal inquiry regarding his waiver and admissions,” holding that “due process does 

not require that the trial court personally examine a defendant regarding his admission that he 

violated his probation”). Accordingly, I would affirm that portion of the judgment upholding the 

validity of the waiver. 

¶ 39. I am authorized to state that Justice Skoglund joins this concurrence and dissent.

Superior Judge, Specially Assigned