Appeal from: Superior Court, Orleans Unit, Criminal Division. DOCKET NO. 127-3-14 Oscr, 125-3-14 Oscr. Trial Judge: Howard E. Van Benthuysen .
Defendant Daniel Dunn appeals from the superior court's denial of his application for home detention pursuant to 13 V.S.A. § 7554b and his request to reduce bail. We reverse and remand the court's denial of his home detention motion, and affirm the court's decision not to reduce bail.
Defendant was arraigned on March 11, 2014 on charges of grand larceny, 13 V.S.A. § 2501, and assault and robbery with a dangerous weapon, 13 V.S.A. § 608(b). At his arraignment, the superior court set bail at $150,000 in a secured appearance bond with a cash deposit of $15,000. The court also imposed various conditions of release. Defendant was incarcerated due to his inability to post the secured appearance bond and deposit.
Following his arraignment, defendant requested a reduction in the bail amount and filed a motion to be placed on pretrial home detention. The court held a bail review hearing on March 31, 2014 and ultimately denied defendant's motion. The court also denied defendant's request to reduce bail. Defendant appealed to this Court.
On appeal, defendant argues tat $150,000 bail is unconstitutionally excessive. He contends that because he is indigent, any monetary bail would be excessive and to impose bail is tantamount to denying him release. He argues that there are a number of conditions other than monetary bail, including home detention, that would ensure his court appearance and that the trial court did not account for many of the factors that would weigh in favor of these alternative conditions.
With respect to the home detention, defendant argues that the trial court improperly relied on its assessment of the limitations of the Department of Correction's (DOC) home detention monitoring practices to deny home detention. He further argues that to the extent that trial court concluded that a $150,000 appearance bond, with 10%, or $15,000, cash down was sufficient to secure against any risk of flight, the trial court abused its discretion in concluding that detention, supervision by the DOC, and electronic monitoring were not sufficient to protect against that same risk. Given that the defendant here was and is bailable, defendant argues, it defies the Legislature's expressed desire to promote home detention under DOC supervision as an alternative to incarcerative pretrial detention.
We first consider defendant's application for home detention. Section 7554b of Title 13 allows court review to determine if home detention is appropriate when a defendant is detained pretrial for more than seven days for lack of bail. 13 V.S.A. § 7554b(b). When determining whether pretrial home detention is appropriate, the court must consider:
(1) the nature of the offense with which the defendant is charged;
(2) the defendant's prior convictions, history of violence, medical and mental health needs, history of supervision, and risk of flight; and
(3) any risk or undue burden to other persons who reside at the proposed residence or risk to third parties or to public safety that may result from such placement.
The statute applies to individuals held without bail pursuant to 13 V.S.A. § 7553, as well as to bailable individuals pursuant to § 7554 who simply cannot muster the funds. However, the presumptions surrounding an application for home detention are in some respects different in these distinct scenarios. In cases governed by § 7553, " the presumption is switched so that the norm is incarceration and not release." See State v. Blackmer, 160 Vt. 451, 458, 631 A.2d 1134 (1993). See also State v. Whiteway, 2014 VT 34, ¶ 18, __ Vt. __ (because of Blackmer presumption, defendant in § 7553 case has the burden to show that home detention should be ordered). In contrast, in a § 7554 case, the broader framework established by the Legislature calls for release subject to the least restrictive set of conditions that will reasonably assure the appearance of the person as required, and protection of the public. 13 V.S.A. § 7554(a)(1), (2). Although home detention is not itself a condition of release, as it is a ...