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@state.vt.us or by mail at: Vermont Supreme Court, 109 

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made before this opinion goes to press.

2016 VT 37

No. 2014-142

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Orange Unit,

Criminal Division

Thomas Gauthier February Term, 2015

Robert P. Gerety, Jr., J.

William H. Sorrell, Attorney General, and Evan Meenan, Assistant Attorney General, 

 Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Joshua O’Hara, Appellate Defender, Montpelier, for

Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Burgess, J. (Ret.), 

Specially Assigned

¶ 1. DOOLEY, J. Defendant Thomas A. Gauthier appeals from the trial court’s 

order revoking his probation. Defendant argues that the probation conditions that the court 

determined he had violated are unenforceable because he claims the conditions were not part of 

“a certificate explicitly setting forth the conditions” of probation, as required by 28 V.S.A. 

§ 252(c). Defendant also raises challenges to specific conditions, arguing that they are 

contradictory or vague and not enforceable. We affirm.

¶ 2. The facts are taken from the record and are uncontested, except when indicated. 

In May 2009, defendant was charged with one count of engaging in a sexual act with a person 

under the age of sixteen, 13 V.S.A. § 3252(c), a felony, and one count of furnishing alcohol to a 

person under the age of twenty-one, 7 V.S.A. § 658(a)(1). The charges arose from an April 2009 
2

incident in which defendant, then age twenty, had intercourse with a fifteen-year-old girl in the 

back of a car after a night of drinking alcohol and smoking marijuana. 

¶ 3. In November 2009, defendant and the State entered into a deferred-sentencing 

agreement. See 13 V.S.A. § 7041(a) (authorizing court to defer sentencing and place defendant 

on probation under conditions). Under the terms of that agreement, the State dismissed the 

furnishing-alcohol charge, defendant pleaded guilty to the sexual-act charge, and sentencing was 

deferred for five years while defendant was placed on probation, which required him to conform 

to several conditions. The trial court accepted the agreement in March 2010. 

¶ 4. In June 2010, the State filed a violation-of-probation complaint against defendant, 

alleging that he had been out of state without permission in violation of one of the conditions in 

his deferred-sentence agreement. Defendant admitted the violation, and the trial court imposed 

sentence at an October 2010 hearing. See id. § 7041(e) (“Upon violation of the terms of 

probation or of the deferred sentence agreement, the court shall impose sentence.”). 

¶ 5. At the sentencing hearing in connection with that violation of probation, the State 

proposed a deal whereby the court would impose a zero-to-four-year sentence, all suspended, 

and would impose the probation conditions in the original deferred-sentencing agreement as well 

as “some special sex-offender treatment conditions that the Department of Corrections uses in 

these types of cases.” Defendant expressed concern that the condition restricting contact with 

people under the age of eighteen would interfere with his relationship with his then-nine-monthold daughter, but ultimately accepted the State’s offer. The court imposed “a sentence of zero to 

four years, all suspended with probation; the same probationary conditions that previously 

existed, as well as the special sex-offender conditions that have been marked as State’s 1.” 

¶ 6. The probation order issued by the court consists of one page with a two-page 

attachment. The initial page lists several conditions and references “State’s 1, attached 

conditions,” and the two-page attachment is labeled with a “State’s 1” exhibit sticker. The

attachment contains a list of additional conditions, and each condition is preceded by a box. 
3

None of the boxes are checked. The probation order was signed by the court, defendant’s 

probation officer, and defendant. Defendant did not appeal his sentence. Subsequently, 

defendant filed motions to modify several conditions, including some on the attached list, 

indicating that he understood he was bound by them.

¶ 7. Defendant’s probation officer filed several probation-violation complaints, 

alleging defendant had accessed social media sites and pornography, possessed alcohol, been in a 

place where children congregate, and violated his curfew. Defendant disputed the violations, but 

did not argue that the probation order failed to provide him with proper statutory notice. 

Following a contested hearing, the court found that defendant violated the following probation 

conditions: (1) drinking alcohol; (2) accessing and loitering in places where children congregate;

and (3) violating his curfew. Based on these violations, the court revoked defendant’s probation.

¶ 8. On appeal from this revocation, defendant argues for the first time that the 

conditions are not enforceable because the order did not meet the statutory notice requirement. 

The statute requires that “[w]hen an offender is placed on probation, he or she shall be given a 

certificate explicitly setting forth the conditions upon which he or she is being released.” 28 

V.S.A. § 252(c). According to defendant the “special sex-offender conditions” listed on the 

“State’s 1” attachment are unenforceable because the probation order did not provide him 

adequate notice that he was subject to each and every one of the conditions listed, but not 

checked, on that document. 

¶ 9. Defendant’s challenge to the validity of the probation conditions based on alleged

noncompliance with 28 V.S.A. § 252(c) is unpreserved. Defendant did not raise this challenge in 

the probation-revocation proceeding that is now on appeal. 

¶ 10. In these circumstances, defendant can prevail only if there was plain error. A 

claim of error rises to the level of plain error only if “(1) there is error; (2) the error is obvious;

(3) the error affects substantial rights and results in prejudice to the defendant; and (4) the error 

seriously affects the fairness, integrity or public reputation of judicial proceedings.” State v. 
4

Waters, 2013 VT 109, ¶ 16, 195 Vt. 233, 87 A.3d 512. Applying these factors, we conclude 

there was no plain error because even if the first element is present, the last three are not. The 

error, if any, was not obvious. There was no wholescale failure to provide defendant with a 

document listing his probation conditions. In fact, defendant received a probation order listing 

all of the conditions. Further, defendant was not prejudiced by any failure to comply with 

§ 252(c) because he was fully aware of the information that was allegedly not provided. Finally, 

the error, if any, does not seriously affect “the fairness, integrity or public reputation of judicial 

proceedings.” Waters, 2013 VT 109, ¶ 16. In fact, the remedy—to let defendant violate 

probation conditions he agreed to—has an adverse effect on the integrity or public reputation of 

the judiciary. For these reasons, defendant fails to demonstrate plain error.

¶ 11. Therefore, we turn to defendant’s arguments concerning the particular violations 

of probation and the resulting revocation of his probation. A violation of probation “presents a 

mixed question of law and fact.” State v. Woolbert, 2007 VT 26, ¶ 8, 181 Vt. 619, 926 A.2d 626

(mem.). The trial court makes the necessary factual findings about the probationer’s actions and 

then makes a legal conclusion concerning whether those actions amounted to a violation of the 

probationary terms. Id. We affirm the factual findings if supported by credible evidence and the 

legal conclusions if supported by the findings.

¶ 12. Defendant challenges the court’s conclusions that he violated the condition

prohibiting him from possessing alcohol and the condition prohibiting him from accessing and 

loitering in places where children congregate. In both instances defendant does not challenge the 

court’s underlying factual findings; rather, defendant asserts that those findings are insufficient 

to support a violation. 

¶ 13. At the outset, we emphasize that defendant’s arguments are being made in the 

context of a probation-violation proceeding. We have held that a defendant is “barred from 

raising a collateral challenge to a probation condition that he was charged with violating, where 

the challenge could have been raised on direct appeal from the sentencing order.” State v. 
5

Austin, 165 Vt. 389, 401, 685 A.2d 1076, 1084 (1996). Therefore, defendant may not 

collaterally attack the conditions on a basis that could have been brought in a direct appeal.

¶ 14. Defendant’s challenges to the alcohol violation stem from the fact that the court 

imposed two conditions related to alcohol—one on the main page of the probation order and a 

different one in the attached list. The first condition prohibits defendant from drinking alcohol to 

the extent it interferes with his employment or the welfare of his family. The second condition 

prohibits defendant from purchasing, possessing, or consuming alcohol. The court concluded 

that defendant violated this second more-restrictive condition when he admitted that he had 

consumed alcohol. Defendant argues that the conditions are contradictory and therefore 

ambiguous. According to defendant, this ambiguity should be construed against the State and in 

favor of the less-restrictive condition. 

¶ 15. To the extent defendant argues the conditions on their face are unenforceable 

because they are contradictory and therefore vague, his challenge could have been brought in a 

direct appeal and is therefore barred.

¶ 16. To the extent defendant’s argument is about lack of notice, it is not “an 

impermissible collateral challenge.” See State v. Lucas, 2015 VT 92, ¶ 8, ___ Vt. ___, 129 A.3d 

646 (explaining that defendant’s challenge to two similar probation conditions as providing 

conflicting instruction and therefore inadequate notice was not barred). Defendant did not, 

however, raise this notice argument below, and we therefore review it for plain error. See id. ¶ 9 

(stating that where defendant did not raise fair-notice argument below, it would be reviewed for 

plain error); see State v. Allen, 145 Vt. 593, 599, 496 A.2d 168, 171 (1985) (holding that 

defendant failed to preserve notice argument related to more restrictive alcohol condition and 

reviewing for plain error). 

¶ 17. We conclude that there was no error, let alone plain error, in this case insofar as

the two alcohol conditions are not contradictory or ambiguous. We were faced with a similar 

situation in State v. Allen. In that case, the probationer was subject to the same two alcohol 
6

conditions imposed in this case. One condition prohibited the purchase, possession, or 

consumption of alcohol. Allen, 145 Vt. at 598-99, 496 A.2d at 171. Another condition 

prohibited him from consuming alcohol to the extent it interfered with his employment or the 

welfare of his family. Id. at 599; 496 A.2d at 171. The probation officer sought clarification 

from the trial court, and the court replied that the condition prohibiting the purchase, possession, 

or consumption of alcohol was to be enforced. On appeal from a violation of that condition, the 

probationer argued that he did not have proper notice of the conditions imposed on him. This 

Court rejected the notion that there was any ambiguity and explained that “[a]t all times” the 

probationer was on notice that he was subject to the stricter alcohol condition. Id. 

¶ 18. Similarly, we conclude here that there is no merit to defendant’s arguments that 

the conditions were contradictory or ambiguous. Although the probation order contained two 

conditions related to alcohol, the terms of the conditions are not in conflict. Defendant could 

meet the requirements of both conditions simply by abiding by the stricter condition. 

¶ 19. Even if there was some ambiguity or inconsistency, this does not rise to the level 

of plain error since defendant has not demonstrated that any error results in “a miscarriage of 

justice.” State v. Bruno, 2012 VT 79, ¶ 33, 192 Vt. 515, 60 A.3d 610 (quotation omitted) 

(defining plain error). Defendant was aware at all times that both conditions had been imposed

and presents no evidence that he was confused or misled about the requirements of the 

conditions. See Lucas, 2015 VT 92, ¶ 10 (holding that trial court’s enforcement of morerestrictive residence condition did not amount to plain error where record failed to demonstrate 

that two residence conditions resulted in defendant being confused or misled about content of 

conditions or his obligations). 

¶ 20. Defendant’s final arguments concern the violation of the condition prohibiting 

him from accessing or loitering in places where children congregate by attending the Tunbridge 

World’s Fair. The condition reads: “You may not access or loiter in places where children 

congregate, i.e., parks, playgrounds, schools, etc., unless otherwise approved, in advance, by 
7

your probation officer or designee.” At the probation-violation proceeding, defendant’s 

probation officer testified that the night before the fair he sent a text message to defendant, 

reminding defendant that his conditions of probation prevented defendant from attending the fair. 

He further testified that he attended the fair the following day and saw defendant there. 

Defendant argued that he did not receive the text from his probation officer, that he was at the 

fair doing community service, and that the condition was too vague to include the fair. 

¶ 21. The court found that there was sufficient evidence to support a violation. The 

court found that the fair is a place where children congregate—especially on Saturday when

defendant attended—and that defendant’s probation officer did not give permission to attend the 

fair. The court concluded that defendant had violated the condition by going to the fair. 

¶ 22. On appeal, defendant argues for the first time that he cannot be violated for going 

to the fair because the condition’s plain language provides an exclusive list of places, which does 

not include fairs. Defendant’s argument hinges of the use of the prefix “i.e.” in the language of 

the probation condition. This abbreviation stands for the latin “id est,” meaning “that is.” 

Black’s Law Dictionary 749 (7th ed. 1999). Therefore, according to defendant, the list of places 

following “i.e.” is an exhaustive explanation of the places defendant can go, as opposed to a list 

that is preceded by “e.g.,” which indicates the items following it are examples. Because the list 

does not include “fair,” defendant claims he was not on notice that attendance at the fair was 

prohibited. Defendant did not raise this argument below, and therefore he must demonstrate 

there was plain error. See State v. Butson, 2008 VT 134, ¶ 15, 185 Vt. 189, 969 A.2d 89 (setting 

forth plain-error standard); see also Lucas, 2015 VT 92, ¶¶ 8-9 (explaining that lack-of-notice 

argument not collaterally barred in probation-revocation proceeding, but subject to plain-error 

review if not raised below). 

¶ 23. There was no plain error insofar as the language of the entire condition combined 

with the facts of the case provided defendant with notice that the list of places in the condition 

was illustrative, and did could include a fair. Generally, as defendant correctly points out, the 
8

abbreviation “i.e.” means “that is” and usually introduces explanatory information about the 

phrase preceding it. This is in contrast to the abbreviation “e.g.,” which generally introduces a 

nonexclusive list of examples. It does not follow, however, that the list following “i.e.” in this 

case is exclusive. See Austin, 165 Vt. at 400, 685 A.2d at 1083 (explaining that probation 

agreement “is not to be treated as a strait-jacket that defies common sense” (quotation omitted)). 

¶ 24. When the condition is read in its entirety, it is evident that the list is meant to be 

illustrative. The list has “etc.” at the end of it, indicating that there existed other places that 

could satisfy the operative language “places where children congregate.” Further, this 

construction makes sense. Considering that the main purpose of the condition was to preclude 

defendant from accessing or loitering in places where children congregate, it is reasonable to 

conclude that the list following that operative phrase was meant for purposes of example not 

limitation. See United States v. MacMillen, 544 F.3d 71, 74-75 (2d Cir. 2008) (holding that list 

in condition directing defendant to avoid “areas or locations where children are likely to 

congregate[,] such as schools, daycare facilities, playgrounds, theme parks, arcades, recreational 

facilities, and recreation parks” was “merely illustrative of the types of places where children are 

likely to be”). Therefore, we conclude that the condition put defendant on notice that he was 

prohibited from accessing and loitering in places where children congregate, and not just in

parks, playgrounds, and schools. 

¶ 25. Further, there is no merit to defendant’s argument that the language “where 

children congregate” is overly vague and thus failed to put him on notice that he was prohibited 

from attending the Tunbridge Fair.

1

To satisfy due process, a defendant must have notice of 

 

1

 We note that some of the cases cited by defendant involved challenges to similar

conditions on constitutional grounds as void for vagueness. See, e.g., Fitzgerald v. State, 805 

N.E.2d 857, 868 (Ind. Ct. App. 2004) (holding that, as written, condition prohibiting access to 

playgrounds and parks or other places children are known to congregate was overly vague and 

remanding for court to reconsider and clarify). Defendant is barred from raising such a collateral 

challenge in the context of this probation-violation proceeding. Therefore, we consider solely 

whether the condition adequately informed him that attending the fair was prohibited. See 

Lucas, 2015 VT 92, ¶ 8.
9

what acts may amount to a violation of probation. State v. Sanville, 2011 VT 34, ¶ 8, 189 Vt. 

626, 22 A.3d 450 (mem.). In interpreting terms of probation, this Court looks to the common 

understanding of the language used. State v. Danaher, 174 Vt. 591, ¶ 15, 819 A.2d 691 (2002)

(mem.) (explaining that defendant had fair notice that word “contact” used in probation order 

meant in proximity because that was “the ordinary meaning of contact”). Congregate is 

commonly used to mean to “come together in a group or crowd.” Merriam-Webster Online 

Dictionary, http://www.merriam-webster.com/dictionary/congregate [https://perma.cc/EZ4T26FR]. As other courts have found, the phrase “where children congregate” is descriptive 

enough to put a defendant on notice that it includes all places where children are likely to be 

found in large numbers. See MacMillen, 544 F.3d 71, 75 (2d Cir. 2008) (holding that phrase 

“areas or locations where children are likely to congregate” was not vague and list of places in 

condition was merely illustrative and not exhaustive). And, as the trial court found here, the fair 

is a place where children are known to gather in large numbers, especially at the time defendant 

attended. 

¶ 26. We are not persuaded by the cases defendant cites to support his lack-of-notice

argument because the language of the conditions in the other cases differs in significant ways 

from the language in this case. In several of the cases cited by defendant the phrase “where 

children congregate” follows, rather than precedes, the list of places, and for that reason courts 

have found that the condition failed to provide clear instruction as to what places must be 

avoided. For example, in United States v. Peterson, 248 F.3d 79, 86 (2d Cir. 2001), the court 

concluded that a condition prohibiting the defendant from “being on any school grounds, child 

care center, playground, park, recreational facility or in any area in which children are likely to 

congregate” was overly broad because it was unclear if the phrase “area in which children are 

likely to congregate” applied only to “any area,” and could be read to prohibit access to any park, 

even if it was not a place children were likely to congregate. See Fitzgerald, 805 N.E.2d at 868 

(concluding condition overly broad because places listed before limiting phrase “where children 
10

are known to congregate” and remanding for clarification). In another case cited by defendant, 

the condition prohibited lingering, loitering, or spending time at locations where children were 

“present.” Ellis v. State, 470 S.E.2d 495, 496 (Ga. Ct. App. 1996). The court there concluded 

this condition lacked specificity because it could be applied to prohibit the defendant “from 

shopping at virtually any store.” Id. 

¶ 27. The condition in this case does not suffer from either of these infirmities. The list 

of illustrative places follows the operative phrase “where children congregate,” and therefore 

provides a sufficient limitation on the places to be avoided. Further, the condition at issue 

prohibits defendant from accessing or loitering in places where children congregate as opposed 

to where they are simply present.

¶ 28. Defendant’s final contention is that the condition impermissibly delegates 

authority to his probation officer. The court may not delegate the power to impose probation 

conditions to a probation officer. State v. Moses, 159 Vt. 294, 300, 618 A.2d 478, 482 (1992). 

The court may, however, give probation officers discretion in the implementation of probation 

conditions. Id. Defendant asserts that the condition is impermissible because it grants the 

probation officer authority to give defendant permission to go to a particular place. Defendant 

did not raise this challenge below, so our review is for plain error. 

¶ 29. Defendant likens his situation to that presented in State v. Rivers, 2005 VT 65, 

178 Vt. 180, 878 A.2d 1070. In that case, the defendant was under a condition precluding

“contact” with children under the age of sixteen without his probation officer’s prior approval. 

Id. ¶ 16. This Court held that the probation officer’s instruction to defendant that he could not 

attend a fair amounted to an improper delegation because the condition was so broad that it 

essentially gave the probation officer authority to determine which public places the defendant 

could frequent. Id. ¶ 14.

¶ 30. We conclude that there was no plain error in this case insofar as defendant fails to 

demonstrate how he was prejudiced by any improper delegation in this condition. Unlike the 
11

language in Rivers, the language of the condition here provided defendant with sufficient notice 

that he was precluded from attending the fair. Thus, in contrast to Rivers, it was the condition

itself, imposed by the court, and not any instructions from defendant’s probation officer that set 

the parameters of defendant’s conduct. 

Affirmed.

Associate Justice

¶ 31. ROBINSON, J., concurring in part, dissenting in part. Insofar as the majority 

holds that there was no error in this case in connection with the alcohol-related conditions 

purportedly applied to defendant, I dissent from the majority’s analysis. However, I concur in 

the majority’s affirmance of the trial court’s decision concerning those conditions on narrower 

plain-error grounds.2 

¶ 32. The probation order in this case included the following condition: 

 You shall not drink alcoholic beverages to the extent they 

interfere with your employment or the welfare of your family, 

yourself or any other person. You must submit to any alcosensor 

test or any other alcohol test when your probation officer or their 

designee tells you to do so.

¶ 33. The additional conditions appended to the probation order, listed but not checked, 

includes the following condition: 

 You shall not purchase, possess or consume any alcoholic 

beverages, or illegal substances, and shall enter and successfully 

complete a course of substance abuse screening and/or treatment, 

including residential, if so directed by your Probation Officer or 

designee.

 

2

 I concur in the Court’s conclusions that in this case the court’s enforcement of 

probation conditions listed on a form next to unchecked boxes does not rise to the level of plain 

error and that the probation condition prohibiting defendant from accessing places where 

children congregate was sufficient to provide defendant notice with respect to his presence at the 

fair on a Saturday afternoon. I express no opinion on the questions of whether this condition is 

supportable in this case, is unconstitutionally overbroad, or gives rise to an impermissible 

delegation of authority to defendant’s probation officer.
12

¶ 34. On the basis of his admission to having wine with dinner on more than one 

occasion three years prior, the court concluded that defendant had violated the second of the 

above conditions relating to alcohol consumption. 

¶ 35. We have consistently recognized that due process requires that a defendant know 

what conduct is forbidden before the State initiates a probation revocation proceeding. See State 

v. Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75 (2001) (mem.) (quoting State v. Bubar, 146 Vt. 

398, 405, 505 A.2d 1197, 1201 (1985)); see also State v. Peck, 149 Vt. 617, 619, 547 A.2d 1329, 

1331 (1988) (“[D]ue process requires that a convicted offender be given fair notice as to what 

acts may constitute a violation of [the defendant’s] probation.”). A condition of probation must 

be “so clearly implied that a probationer, in fairness, can be said to have notice of it.” State v. 

Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996).

¶ 36. The first of the alcohol-related conditions in defendant’s probation order clearly 

suggests to defendant, or any other reasonable probationer, that he is free to possess and 

consume alcoholic beverages as long as doing so does not interfere with his employment or the 

welfare of himself or other. In stark contrast, the second of these conditions—the one listed in 

an appendix to the probation order that lists a host of conditions, each next to an unchecked 

check-box—completely prohibits defendant from possessing or consuming any alcoholic 

beverages.3 These two conditions communicate squarely inconsistent messages as to what 

conduct is expected of defendant.

 

3

 The fact that the attachment purportedly containing the second, more severe condition 

lists a host of conditions next to check-boxes, all of which are unchecked, further calls into 

question the enforceability of this condition. I concur with the majority that on the record in this 

case, enforcement of the conditions listed in the attachment next to unchecked boxes does not 

amount to plain error. Ante, ¶ 10. Prior to the violation at issue here, defendant successfully 

sought to amend conditions contained on the attachment, undermining the argument that the 

absence of check marks left this defendant without notice that the listed conditions applied. But 

we have recognized that use of a list like this, with no specific conditions checked, creates 

confusion about what conditions are actually imposed. State v. Cornell, 2014 VT 82, ¶ 7, 

197 Vt. 294, 103 A3d 469. And we have held that rote imposition of standardized probation 

conditions, without any consideration of their applicability in a particular case, “runs afoul of the 

principles of individualized sentencing.” State v. Putnam, 2015 VT 113, ¶ 41, __ Vt. __, 130 
13

¶ 37. The majority asserts that the two conditions are not contradictory or ambiguous 

because defendant could meet the requirements of both conditions simply by abiding by the 

stricter condition. Ante, ¶ 18. 

¶ 38. While logically true, the majority’s position on this point is in tension with the 

requirement that probation conditions must give a defendant fair notice of what conduct is 

prohibited and what conduct is required. See State v. Sanville, 2011 VT 34, ¶¶ 9-10, 189 Vt. 

626, 22 A.3d 450 (mem.). Moreover, it flies in the face of the rule of lenity, requiring us to 

construe ambiguous statutes—or in this case, probation conditions—in favor of the defendant. 

State v. LaBounty 2005 VT 124, ¶ 4, 179 Vt. 199, 892 A.2d 203. The question here is not 

whether defendant can technically comply with one provision without running afoul of the 

second, or whether the two can be parsed in a way that is logically consistent; the question is 

whether the inclusion of both conditions communicates inconsistent messages about what 

conduct is proscribed.

¶ 39. A California appeals court considered a similar situation in reviewing a probation 

order that contained three different conditions relating to internet usage. In re Victor L., 106 Cal.

Rptr. 3d 584 (Ct. App. 2010). One condition prohibited the minor (in a juvenile case) from 

accessing or participating in any social networking site; a second prohibited the minor from 

using, possessing, or having access to a computer with an internet connection; and the third 

prohibited the minor from using the internet without school or parental supervision. The court 

noted that the second condition prohibited all internet usage, whereas the first and third 

conditions contemplated that the defendant would be allowed internet access with certain 

limitations. Id. at 602. The court rejected the suggestion that in the face of overlap, the most

restrictive condition prevails, and noted that applying the second condition would render the first 

and third conditions either superfluous or contradictory. Id. The court explained:

 

A.3d 836. These factors render the probation order in question problematic at best, but are not 

the basis for this separate opinion. 
14

 It appears to us that the Internet provisions—part of a pre-printed 

form—were intended to provide a graduated range of conditions 

restricting Internet access and were not intended to be checked off 

willy-nilly in all gang-related cases. . . . We believe the form calls 

for the probation officer and court to assess which level of Internet 

restriction is most appropriate for the minor in each case and to 

select the appropriate condition of probation accordingly. 

Id. at 602-03.

¶ 40. Concluding that the overlap of the first and third conditions was neither 

incomprehensible nor contradictory, but that the application of the second condition prohibiting 

use or access to an internet-enabled computer alongside either or both of the other conditions 

made no sense, the court concluded that all three conditions together were unconstitutionally 

vague. Id. at 603. In order to remedy the inconsistency, the court narrowed the second condition 

so that it only reached the act of possessing a computer with internet access, and did not purport 

to restrict use or access. Id. 

¶ 41. In this case, the various forms from which the State and ultimately the court have 

drawn conditions likewise provide for a graduated range of conditions relating to alcohol usage 

that “were not intended to be checked off willy-nilly” in all crimes of sexual violence. Id. 

Inclusion of both conditions communicates inconsistent messages to a defendant concerning 

what behavior is proscribed and suggests a lack of the individualized consideration required in 

the imposition of probation conditions. See Putnam, 2015 VT 113, ¶ 41. 

¶ 42. I do not believe this court’s analysis in State v. Allen, 145 Vt. 593, 496 A.2d 168 

(1985) compels a contrary conclusion. In that case, after the court’s imposition of the two 

alcohol related conditions, the defendant and the State had a dispute about the interaction of the 

two conditions. Id. at 598-99, 496 A.2d at 171. In response, the State sought clarification from 

the court, which issued an order affirming that the more stringent condition applied. In the 

context of a subsequent proceeding for violation of the condition, this Court affirmed the 

propriety of enforcing the more stringent of the two conditions. Id. In Allen, before the 

violation, the court specifically addressed and resolved the ambiguity arising from the inclusion 
15

of the two provisions. To the extent that any language in the Court’s opinion in that case 

suggests that the two provisions are not in tension and not ambiguous, it should be overruled as 

inconsistent with the more rigorous scrutiny of probation conditions that has characterized this 

Court’s subsequent decisions. See, e.g., Putnam, 2015 VT 113; State v. Campbell, 2015 VT 50, 

__ Vt. __, 120 A.3d 1148; State v. Bostwick, 2014 VT 97, 197 Vt. 345, 103 A.3d 476. 

¶ 43. Because the error in imposing inconsistent probation conditions concerning 

alcohol usage does not rise to the level of plain error on the record in this case, I concur in the 

Court’s judgment affirming the violation of the no-alcohol condition. 

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

Associate Justice