APPEALED FROM: Superior Court, Rutland Unit, Criminal Division DOCKET NOS. 1191-7-13, 240-3-16 Rdcr Trial Judge: Thomas A. Zonay
Beth Robinson, Associate Justice
In the above-entitled cause, the Clerk will enter:
This appeal involves two different determinations concerning bail in two different dockets. In one, the trial court ordered that defendant be held without bail pending sentencing after an adjudication of guilt on the underlying charge and his admission to two violations of probation in connection with that charge. In the other, the trial court set bail at $50, 000 cash or surety. Defendant appeals both determinations. This Court affirms.
This case involves four different cases identified by four different docket numbers: 1191-7-13 (the heroin possession case), 1597-11-15 (the unlawful trespass case), 187-2-16 (the first violation of conditions of release case), 240-3-16 (the second violation of conditions of release docket). The relevant history may be briefly stated as follows.
On July 15, 2013, defendant was charged with possession of heroin in violation of 18 V.S.A. § 4233(a)(2). (Docket number 1191-7-13). On May 16, 2014, defendant pled guilty to this charge pursuant to a deferred sentencing agreement. The trial court accordingly deferred sentencing and issued a deferred sentence and probation order. The State subsequently filed two violation of probation (VOP) charges in November 2014 and January 2015. Defendant admitted the two probation violations on February 26, 2015, and, prior to sentencing, was referred to the Rutland County Treatment Court (RCTC).
On May 12, 2015, the trial court issued amended conditions of release, which imposed a condition ordering that defendant not have contact with E.T. On July 28, 2015, the trial court set a bail amount of $10, 000 for defendant to remain out on probation, and required defendant to post a surety bond. In addition, the trial court issued amended conditions of release, again including the specific no-contact condition regarding E.T.
On November 24, 2015, defendant was charged with unlawful trespass in violation of 13 V.S.A. § 3705(d), and violation of the condition of release in docket number 1191-7-13 prohibiting him from having contact with E.T. (Docket number 1597-11-15.) Those charges arose out of an incident in the early morning on November 13, 2015. According to an affidavit given by E.T., defendant knocked on her apartment door some time between 2:00am and 3:00 am. E.T. ignored defendant's knocking, but then heard a thud on the roof. E.T. did not have her window locked, and defendant was able to enter the apartment through the unlocked window. Defendant then began screaming at E.T. and threatening her guest. At one point, defendant charged the two, and they fled the apartment. In her statement, E.T. expressed fear for her life and fear that defendant would not ever leave her alone. She alleged that defendant regularly phoned her work in an effort to get her fired. She concluded her statement by noting that she had no idea what to do about defendant or how to protect herself. After his arraignment, defendant was released on conditions in connection with the unlawful trespass case. His conditions included a requirement that he have no contact with E.T.
On February 17, 2016, pursuant to the State's motion, defendant was discharged from the RCTC. Subsequently, on February 22, 2016, defendant was charged with three new violations of conditions of release. (Docket number 187-2-16). At argument on appeal, the State represented without contradiction that these violations all related to contact with E.T on February 20. However, the charging document and associated affidavits are not in the record provided to this Court in connection with the appeal. The State represented without contradiction that the trial court set a $5, 000 bail amount, which defendant posted, in connection with this charge.
On March 4, 2016, defendant was charged with two more violations of his conditions of release, stemming from a series of text messages and phone calls to E.T. on February 26 and 27, 2016. (Docket number 240-3-16). The specific conditions violated were the prohibition of contact with E.T. in the unlawful mischief case (1597-11-15) and the requirement that he comply with all existing conditions in the first violation-of-conditions case (187-2-16). At the arraignment, the following took place.
At the arraignment in the most recent violation-of-conditions case (docket number 240-3-16), the State requested that bail be set at $2, 000 consecutive with the $5, 000 bail set in the first set of violations-of-conditions case (187-2-16). Defendant opposed any bail amount. According to defendant, he was not a flight risk as evidenced by the fact that he has appeared at all his court hearings, which spanned two felonies and six misdemeanors. Defendant argued that the purpose of bail is to ensure defendant's appearance, and in this case, there simply was no indication, based on his prior appearances, that defendant would not appear.
The trial court disagreed and imposed bail of $50, 000 in the second violations-of-conditions case (docket number 240-3-16). In setting bail, the trial court specifically noted that in November 2015 when defendant allegedly trespassed into E.T.'s home, he was subject to a condition in the heroin possession case that he not contact her. Then in February 2016 defendant faced three charges of violating conditions of release for contacting E.T., including going to her residence. Then, not two weeks later, defendant was charged with unlawful contact again-not momentary or inadvertent, but involving sixteen text messages and nine phone calls. The court acknowledged that the defendant had reliably appeared in court when required, and that he was employed, but noted the growing number of charges and the recent escalation in defendant's alleged violations of his conditions-and in particular, the condition prohibiting contact with E.T. The court concluded that there was a significantly greater risk of non-appearance than there had been a few weeks prior, and set bail at $50, 000 in docket number 240-3-16.
In addition to setting bail in 240-3-16, the trial court also considered the impact of the new charges on defendant's status in the heroin possession and violation of probation case, docket number 1191-7-13. In that case, defendant had been adjudicated guilty on the underlying charge and had admitted the two probation violations; he was just awaiting sentencing. Acknowledging defendant's strong family and community ties, long length of residence, no prior failures to appear, and minimal record of convictions, the court concluded that defendant's inability to comply with the no-contact restrictions outweighed these other factors. Concluding that there did not seem to be any conditions that effectively protected E.T. from contact with defendant, the court ordered that he held without bail pending sentencing in that case. The trial court rejected defendant's argument that the fact that defendant sent ...