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State v. Breer

Supreme Court of Vermont

December 8, 2014

State of Vermont
Harley L. Breer, Jr

Appeal from: Superior Court, Washington Unit, Criminal Division. DOCKET NOS. 1524-12-11, 430-4-12, 299-3-99, 431-4-12 & 803-6-12 Wncr. Trial Judge: Thomas A. Zonay.

Reiber, C.J., Dooley, and Eaton, Jr., JJ.

Page 1274


[¶1] Defendant Harley L. Breer faces several misdemeanor and felony charges in five separate dockets. Defendant moved to review a hold-without-bail order. The trial court denied the request, continuing to hold defendant without bail pending trial. Defendant appealed to this Court. We affirm.

[¶2] Defendant was previously convicted in 2003 for three different felonies: kidnapping, 13 V.S.A. § 2405; burglary, id. § 1201; and first-degree unlawful restraint, id. § 2407(a)(1). This bail appeal primarily concerns charges from 2011 and 2012 that include: two counts of second-degree aggravated domestic assault, id. § 1044(a)(2)(A); one count of second-degree unlawful restraint, id. § 2406(a)(3); and two counts of sexual assault, id. § 3252(a)(1). Also relevant to this case are two counts of probation violations that were brought in 2010. 28 V.S.A. § 301(4).

[¶3] Defendant was held without bail pending trial because he is charged with several offenses punishable by life imprisonment, 13 V.S.A. § 7553, and also because he has been charged with violations of probation, 28 V.S.A. § 301(4). Defendant moved for release and to set bail, arguing that the evidence of guilt was not great. A hearing was held over three days during the summer of 2014. Defendant represented himself during those hearings, with the assistance of standby counsel. In a written order, the court denied defendant's motion, concluding that the evidence of guilt was great and continued to hold defendant without bail. Defendant, acting pro se, then filed a notice of appeal to this Court.[*]

Page 1275

[¶4] After defendant initiated this bail appeal, he sought appointment of counsel, the scope of whose representation of defendant would be limited to this proceeding only. The trial court granted the motion and appointed counsel. Transcripts were ordered for the bail appeal, and a hearing was set. The hearing was continued on two occasions to accommodate scheduling conflicts and delays in obtaining the transcript. On the morning of the hearing, defense counsel moved to withdraw based on defendant's expression of renewed intent to represent himself in the bail appeal. Neither the state's attorney nor the defendant, who were both present by telephone at the hearing, objected to the motion. The motion was granted, and defendant proceeded to argue on his own behalf.

[¶5] At the hearing, defendant immediately moved for a continuance, claiming that he was " out of the loop" because he was unaware of steps that were being taken in the proceeding, and was insufficiently prepared. The motion to continue was tabled at the hearing for consideration and is now denied. Defendant has not demonstrated that he had an insufficient period of time to prepare or how he was prejudiced by proceeding. The hearing date for the bail appeal was delayed and rescheduled several times, and nearly three months elapsed between the initial filing and the actual hearing. Even allowing for the logistical challenges that attend conducting one's own defense from jail, three months is ample time to prepare for a bail appeal hearing. Indeed, appearing by telephone at the hearing, defendant articulated his argument with a fluency that suggested he was adequately prepared and quite capable of representing himself on the date of the hearing.

[¶6] Next, we turn to the merits of the bail appeal. Pursuant to the Vermont Constitution and statute, a defendant is not entitled to bail as a matter of right if he is exposed to a maximum penalty of life imprisonment and the evidence of guilt is great. Vt. Const. ch. II, § 40(1); 13 V.S.A. § 7553. Pursuant to the Vermont Habitual Offenders Act, 13 V.S.A. § 11, defendant's charges for subsequent felonies expose him to an enhanced possible maximum penalty of life imprisonment. Accordingly, defendant's aggravated domestic assault and unlawful restraint charges carry " Enhanced Penalty Habitual Offender" provisions. Even without the prior convictions, the charges for sexual assault carry with them a maximum penalty of life imprisonment. Id. § 3271(b). Moreover, " [t]here shall be no right to bail or release" where a defendant has been charged with a violation of probation, as defendant is here. 28 V.S.A. § 301(4). Thus, defendant may be held without bail pursuant to statute if the evidence of guilt is great.

[¶7] Defendant's main argument relates to the proper standard for determining whether a " person accused of an offense punishable by ... life imprisonment may be held without bail when the evidence of guilt is great." Vt. Const. ch. II, § 40(1). This provision is implemented by statute in 13 V.S.A. § 7553, and this Court has construed the provision as requiring the trial judge to determine " whether the facts adduced by the State, notwithstanding

Page 1276

contradiction of them by defense proof, warrant the conclusion that if believed by a jury they furnish a reasonable basis for a guilty verdict." State v. Turnbaugh, 174 Vt. 532, 534, 811 A.2d 662, 665 (2002) (mem.) (quotation and alteration omitted). Put another way, in State v. Blackmer, we held that a presumption arises in favor of incarceration if substantial, admissible evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt. 160 Vt. 451, 454, 458, 631 A.2d 1134, 1136, 1139 (1993). The trial court must then exercise its discretion in determining whether or not to impose bail and conditions of release. Id. at 458, 631 A.2d at 1139. The trial court's discretion is extremely broad, but its decision cannot be arbitrary. Id.

[¶8] Defendant asserts that this standard is incorrect and urges us to overrule Turnbaugh. We decline to do so. This standard properly puts the onus on the State to produce evidence sufficient to sustain a verdict of guilty, but prevents the trial court from essentially litigating defendant's guilt prior to trial. As we have previously explained, " it is not the role of the court in a bail ...

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