FROM Superior Court, Chittenden Unit, Criminal Division
DOCKET NO. 4550-12-15 Cncr Trial Judge: Dennis R. Pearson
Marilyn S. Skoglund, Associate Justice.
above-entitled cause, the Clerk will enter:
Matthew Fidler appeals the trial court's November 23,
2016 order modifying defendant's conditions of release.
The order changed two aspects of defendant's conditions:
first, it reduced defendant's bail from $75, 000 to $25,
000, cash or surety bond; second, it added Condition Four,
which prohibits defendant from being released into the
custody of some person or organization that has not been
approved in advance by the court. Although the reduction in
bail is supported by the record below, the matter is remanded
for the trial court to address inconsistencies resulting from
the newly imposed condition.
December 8, 2015, defendant was arrested and arraigned on a
series of charges stemming from an incident earlier that
night. The charges included kidnapping for a ransom, 13
V.S.A. § 2405(a)(1)(A), reckless endangerment, 13 V.S.A.
§ 1025, and assault and robbery, 13 V.S.A. §
608(a). Because of the kidnapping charge, the State
originally sought to hold defendant without bail, arguing
pursuant to 13 V.S.A. § 7553 that defendant had been
charged with an offense punishable by life imprisonment and
that the evidence of guilt was great.
December 30, 2015 order, the court determined that defendant
had no right to bail under 13 V.S.A. § 7553. For the
purposes of the order, the court found that defendant and a
codefendant lured the alleged victim into a car with the
promise of sex for money. Once in the car, defendant held a
knife on the victim and kept the victim in the car until the
two defendants located an automated teller machine (ATM). At
the ATM, defendant forced the victim to withdraw money at
knifepoint. The whole encounter lasted approximately one and
a half hours.
on these preliminary findings, the court concluded that
substantial, admissible evidence existed that fairly and
reasonably established defendant's guilt beyond a
reasonable doubt; thus, defendant had no right to bail.
However, the court exercised its discretion and imposed bail
and conditions of release under 13 V.S.A. § 7554. It
determined that a sufficient cash bail and conditions would
ensure defendant's appearance at court and the
public's safety. In determining an appropriate bail, the
court noted that defendant had only resided in Vermont for
six months, that the circumstances of the charged offense
were particularly serious, and that defendant had been
charged with a number of offenses in California, the most
recent of which occurred in May 2014. The court imposed bail
in the amount of $75, 000 and imposed a number of conditions.
Defendant could not make bail and was placed in pretrial
on October 28, 2016, defendant filed a bail-review motion to
modify the amount of bail imposed and his conditions of
release. At the November 14 hearing on the bail-review
motion, defendant presented no additional evidence; instead,
defendant claimed that "particularized findings"
were required to continue holding defendant on such a
"high amount" of bail. In addition, defendant
argued that a residential treatment center was a less
restrictive, nonmonetary option.
November 23, 2016 order, the trial court reduced
defendant's bail to $25, 000 and added an additional
condition requiring that defendant could only be released to
a person or organization approved in advance by the court. In
its analysis, the court reiterated that defendant had no
right to bail and noted that defendant presented no evidence
to counter the earlier court's "conclusion that
defendant presents a risk of flight because of the
seriousness of the charges, the sentencing exposure he faces
if convicted, and his relative lack of ties to Vermont."
Despite this, the court determined that the length of
pretrial incarceration warranted a reduction in bail in light
of the statutory requirement that it be the "least
restrictive" combination of bail and conditions
available to the court. The court then reduced
defendant's bail to $25, 000 and imposed the additional
condition that defendant could only be released to a person
or organization, approved in advance by the court, who
accepted ongoing twenty-four responsibility for defendant.
The court equated this condition with the pretrial detention
administered by the Department of Corrections (DOC), as
defined in 13 V.S.A. § 7554b, and noted that such
pretrial release "is a preferable alternative in almost
all instances such as this." Defendant could not make
this reduced bail and he remains in pretrial custody.
appeals to this Court, principally arguing that the $25, 000
bail is excessive because the severity of defendant's
charges acted as the sole basis for imposing the bail amount
and the court did not make articulated findings for imposing
bail. In addition, defendant claims that the imposition of
bail without considering either defendant's ability to
pay or a less restrictive means of ensuring his appearance
violated due process.
described above, although both trial courts concluded that
defendant had no right to bail, they elected to impose bail
and conditions of release. A trial court "has the
discretion to allow bail even where . . . defendant is not
entitled to it." State v. Pellerin, 2010 VT 26,
¶ 13, 187 Vt. 482 (quotation omitted). This Court's
review in such a case is narrow: as long as "defendant
is provided an opportunity to be heard[, ] . . . our review
of this issue is strictly limited to whether there was an
abuse of discretion." Id. This Court shall
affirm the trial court's decisions regarding conditions
of release "if [the order] is supported by the
proceedings below." 13 V.S.A. § 7556(c).
purpose of bail, as presently constitutionally mandated, is
to assure the defendant's attendance in court."
State v. Pray, 133 Vt. 537, 541 (1975). "Where
there is sufficient evidence to demonstrate a substantial
risk that a defendant will not show up for trial, conditions,
monetary or otherwise, to insure his return are
indicated." State v. Roessell, 132 Vt. 634, 636
(1974) (per curiam). A "defendant need not be capable of
meeting bail in order for the amount to be supported by the
record." State v. Duff, 151 Vt. 433, 436
(1989). When considering the evidence relating to a
defendant's risk of nonappearance, 13 V.S.A. § 7554
directs the court to consider "the seriousness of the
offense charged and the number of offenses with which the
person is charged, " id. § 7554(a)(1), as
well as the following:
[T]he nature and circumstances of the offense charged, the
weight of the evidence against the accused, the accused's
family ties, employment, financial resources, character and
mental condition, the length of residence in the community,
record of convictions, and record of appearance at court