APPEALED FROM: Superior Court, Orleans Unit, Criminal Division DOCKET NO. 593-11-15 Oscr Trial Judge: Howard E. VanBenthuysen
Robert R. Bent, Superior Judge.
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant, Aaron Lontine, appeals an order holding him without bail pursuant to 13 V.S.A. § 7553a. The de novo single-Justice appeal was heard by Superior Judge Robert Bent, sitting by special designation. See 13 V.S.A. § 7556(d); V.R.A.P. 9. Defendant argued that the State failed to prove by clear and convincing evidence both that his release would pose a substantial threat of violence to another person and that no conditions of release could reasonably prevent such violence. Defendant also argued that he was entitled to immediate release under 13 V.S.A. § 7553b(b) because a trial had not commenced within sixty days of his arraignment. The request for release under § 7553b is denied. The decision to hold without bail under § 7553a is reversed, and the matter is remanded for release of defendant under conditions.
I. Release Under § 7553b
¶ 2. Defendant argues that he is entitled to release under 13 V.S.A. § 7553b. That section reads, in its entirety, as follows:
(a) Except in the case of an offense punishable by death or life imprisonment, if a person is held without bail prior to trial, the trial of the person shall be commenced not more than 60 days after bail is denied.
(b) If the trial is not commenced within 60 days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set bail for the person.
This section has not been construed in any full-Court decision. It was mentioned in one single-Justice unpublished entry order, State v. Kelcey, No. 2002-398, 2002 WL 34422470 (Vt. Sept. 16, 2002) (unpub. mem.), https://www.vermontjudiciary.org/UPEO2001-2005/eo02398.aspx [https://perma.cc/9PGB-Y6ZC], but that case provides limited analysis. Defendant contends that pursuant to this section the operative date is arraignment, when he was first held, and because more than sixty days have passed without trial, the hold-without-bail order should be stricken and there should be an immediate hearing on conditions of release.
¶ 3. The timeline is important to this argument. Based on docket entries, and the audio record of a status conference held on January 12, 2016, the court finds the following. Defendant was arraigned on November 17, 2015 on multiple felony and misdemeanor counts arising from events that took place between November 13 and 15, 2015. The charges included: three counts of first-degree aggravated domestic assault for threatening to use a deadly weapon against M.K. and attempting to strangle M.K.; one count of unlawful restraint; one count of interference with access to emergency services; and two counts of domestic assault for causing injury to M.K. or causing her to fear imminent serious bodily injury. The complaining witness was his live-in partner.
¶ 4. On the day of arraignment, defendant did not complete a public defender application and a stand-in public defender handled the arraignment. An attorney or appear date was set. The court set a jury draw date of May 16, 2015. This and other preliminary dates were set and delivered to defendant.
¶ 5. The State requested a hold-without-bail order, which was granted pending a weight-of-the-evidence hearing. The court advised defendant on the record that it would not set a weight-of-the-evidence hearing until requested by defense counsel. Defendant requested a public defender on November 25, 2015, and the court granted the request that same day.
¶ 6. Counsel for defendant filed a motion to review bail on December 11, 2015. A hearing was held on December 23, 2015, and the case taken under advisement.
¶ 7. A status conference was held on January 12, 2016. Defendant's attorney and the state's attorney were both present. The court, Judge VanBenthuysen presiding, inquired about the timetable for discovery. Defense counsel indicated a desire to depose the complaining witness, although it did not sound as though any notices of deposition had been given. Counsel inquired about where he stood with the time frames set out in § 7553b. The court advised it would be able to set the case at earliest in March. A decision on the bail issue was entered on January 14, 2016, holding defendant without bail.
¶ 8. Defendant has failed to demonstrate that § 7553b controls the status of bail in this case at this time. The critical question is the operative date for beginning the sixty-day period. The bail decision issued on January 14, thus the trial would need to start before March 14 pursuant to statute unless the operative date for such calculation is from the time of arraignment at which there was a hold without bail order made prior to the evidentiary hearing on the issue.
¶ 9. In State v. Morey, No. 2007-421, 2007 WL 5313609 (Vt. Nov. 5, 2007) (unpub. mem.), https://www.vermontjudiciary.org/UPEO2006-2010/eo07-421.bail.pdf [https://perma.cc/ F3S6-PXVR], a single-Justice decision, Justice Dooley distinguished a temporary hold-without-bail order pending the evidentiary hearing needed under § 7553a:
Although the current bail order cannot be sustained, the court has discretion to hold a defendant without bail pending a hearing under § 7553a. See State v. Bickel, 166 Vt. 633, 634, 698 A.2d 243, 243 (1997) (mem.). The record in this case would support such an order. For this reason, I do not strike the bail order but direct a hearing, to be held within ten days of this order, as to [whether] defendant can be held temporarily without bail, pending a new hearing under 13 V.S.A. § 7553a.
Morey, at *3; see also State v. Passino, 154 Vt. 377, 384, 577 A.2d 281, 286 (2004) (explaining that court can hold defendant without bail pending full bail hearing, and remanding for further hearing and holding defendant pending such hearing). The statutory structure is sufficiently clear that the operative decision that triggers the sixty-day rule is the decision following the evidentiary hearing required under § 7553a. The legislative and constitutional goal is clear and laudable: in nonlife-imprisonment cases, defendants held without bail get their cases tried on a priority basis. That will include a substantial number of cases involving, as does this case, charges of domestic violence. Therefore, in this case the time did not begin to run until the denial of bail after the evidentiary hearing.
¶ 10. While the statute does not define what meaning to attribute to the phrase in § 7553b(b) "and the delay is not attributable to the defense, " a reasonable interpretation of the statute would not permit a defendant to stipulate to, for example, a six-month discovery schedule and then invoke § 7553b(b) and claim the court was divested of authority to maintain the hold-without-bail order after two months. The delay in trial pending pretrial discovery would be attributable to defendant within the meaning of the statute.
¶ 11. At heart, § 7553b is a speedy trial rule. It is a fundamental characteristic of speedy trial assertions that a defendant must make his or her desires to get to trial known to the court. Indeed, this Court adopted this principle in response to U.S. Supreme Court precedent. This adoption-as well as the four factors used to determine whether violation of the constitutional right to a speedy trial has occurred-was described in State v. Unwin, 139 Vt. 186, 424 A.2d 251 (1980). There, this Court stated that "[i]n Barker, the Court specified four factors that must be considered in evaluating a speedy trial claim. These are: the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant." Id. at 195, 424 A.2d at 257. In Unwin, the record did not "indicate that the defendant fulfilled his responsibility of asserting his right" because the defendant did no more than move to dismiss for lack of a speedy trial and file discovery motions demanding the production of items. Id. at 196, 424 A.2d at 257. In other words, the defendant did not adequately assert his right to a speedy trial.
¶ 12. This Court has held similarly when other defendants have demonstrated little interest in a speedy trial. See State v. Turner, 2013 VT 26, ¶ 11, 193 Vt. 474, 70 A.3d 1027 (holding that third factor did not weigh in defendant's favor because he filed only single motion to dismiss, never demanded immediate trial, and did not oppose extensive discovery); State v. Vargas, 2009 VT 31, ¶ 15, 185 Vt. 629, 971 A.2d 665 (mem.) (holding that "aggressiveness with which defendant asserted his [speedy trial] right was lacking" because he merely filed one demand for speedy trial and opposed his original counsel's withdrawal).
¶ 13. Following this precedent, it is clear in the present bail appeal that-to the extent that § 7553b reflects the right to speedy trial-defendant's failure to object to the pace of the trial process weighs against him. At the January 12, 2016 status conference, counsel for defendant advised that he was not then ready for trial and that he wanted to take a deposition of the complaining witness and maybe someone else. A discovery stipulation was filed on January 29, 2016 and established a trial date of May. Defendant, although mentioning §7553b at the January 12, 2016 status conference did not give any indication that he objected to the pace of this process and stipulated to a May trial date. Therefore, because § 7553b is akin to a speedy trial rule and is thus informed by U.S. Supreme Court and this Court's precedent, defendant, having failed to assert the right, cannot now assert it to have bail set. For the foregoing reasons, defendant's request that this Court simply set bail under § 7553b is denied.
II. Factual Findings Pertaining to Underlying Charges
¶ 14. Defendant's second argument involves his appeal of the trial court's decision to hold him without bail under 13 V.S.A. § 7553a. This Court held an evidentiary hearing on February 2 and 9, 2016. Based on that evidence, this Court makes the following findings.
¶ 15. Defendant and M.K. had been in an intimate relationship for approximately eight years. Most recently they had been living on Glenn Road in Newport. The parties shared their home with a joint child, L.L., and M.K.'s child, thirteen-year-old C.K. M.K. is employed as a nurse at the local hospital. M.K. is thirty-four, and ...