On
Appeal from Superior Court, Chittenden Unit, Criminal
Division Dennis R. Pearson, J.
Ryan
O. Richards, Chittenden County Deputy State's Attorneys,
Burlington, and David Tartter, Deputy State's Attorney,
Montpelier, for Plaintiff-Appellee.
Michael J. Straub, Law Offices of Michael J. Straub,
Burlington, and Sara Puls, Appellate Defender, Montpelier,
for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
JJ.
ROBINSON, J.
¶
1.This case calls upon us to consider whether a court may, in
order to secure a defendant's appearance in court, impose
bail in an amount that the defendant is unable to pay.
Defendant appeals the trial court's requirement that he
post a secured appearance bond in the amount of $25, 000 with
a ten percent deposit to be paid to the court. Defendant is
now being held for lack of bail, and he argues that the
amount set by the trial court is excessive. Although a court
must consider a defendant's financial resources in
determining conditions of release, we conclude that neither
the U.S. nor Vermont Constitution nor the applicable Vermont
statutes require trial courts to find that a defendant has a
present ability to raise bail in the amount set by the court.
Although courts must consider a defendant's financial
resources when they set bail, courts may set bail at a level
that a particular defendant cannot secure. In setting bail,
courts must always be guided by the goal of securing a
defendant's appearance at trial, and should not set bail
at an unattainable level for the purpose of detaining a
defendant rather than assuring the defendant's
appearance. Given these standards, and the broad discretion
trial courts enjoy in these cases, we conclude that the trial
court's bail decision is "supported by the
proceedings below, " 13 V.S.A. § 7556(b). We
accordingly affirm.
¶
2. On August 22, 2016, defendant was arraigned on two felony
charges for aggravated domestic assault, 13 V.S.A. §
1043(a), and attempted sexual assault, 13 V.S.A. §
3252(a)(1). (Docket No. 3102-8-16 Cncr). Initially, the State
requested that defendant be held without bail, and the court
scheduled a hearing to consider the motion.[1] The State
subsequently withdrew its motion to hold defendant without
bail and requested that the court impose bail and conditions
of release requiring defendant to stay with a responsible
adult and abide by a curfew. The court imposed a $10, 000
secured appearance bond, with a $2000 deposit to be paid to
the court. On September 12, defendant posted bail through a
bail bondsman and was released under conditions that required
him to stay at a court-approved address, comply with a
curfew, not contact the victim, and enroll in school.
¶
3. On October 3, defendant was arrested and arraigned on two
new sets of charges. Included in the first set of charges was
one felony count of burglary, 13 V.S.A. § 1201(c)(1),
three misdemeanor counts of violating conditions of release,
13 V.S.A. § 7559(e), and two misdemeanor counts of
buying, receiving, selling, possessing, or concealing stolen
property, 13 V.S.A. § 2561(b) (Docket No. 3643-9-16
Cncr). The court set bail at $25, 000 for this set of
charges, consecutive to defendant's existing bail
obligation, and imposed a number of conditions of release.
Included in the second set of charges was one count of felony
possession of methamphetamine, 18 V. SA § 4234a(a), and
misdemeanor counts of resisting arrest, 13 VSA §
3017(a)(1), unlawful trespass, 13 VSA § 3705(a), and
petit larceny, 13 VSA § 2502 (Docket No 3646-10-16 Cncr)
The court imposed bail of $2500 for this set of charges,
concurrent with the bail imposed in the first set of
charges.[2]
¶
4. On November 18, defendant filed a motion to review the
$25, 000 bail determination, and the court held a hearing to
consider the motion on November 28. Defendant argued that the
State failed to provide evidence that he could meet the bail
requirement and that the court must make particularized
findings regarding defendant's risk of flight that would
justify the bail amount. In its December 1 order, the court
considered the role of a defendant's ability to raise
bail in a bail determination, asking whether any amount of
bail may be imposed upon an indigent defendant. It did not
directly answer the question in its analysis. Instead, after
reviewing the evidence pertinent to the bail review hearing,
the court concluded that there had been a dramatic escalation
over the course of several months in the alleged criminality
of defendant's conduct, with criminal charges
exponentially increasing in quantity and severity. The court
concluded that the real issue in this case was protecting the
public from further criminal behavior that could include the
risk of violence and physical harm to others. Accordingly,
the court scheduled another hearing on the issue of whether
defendant should be held without bail under § 7553a. In
the meantime, the court ordered that the $25, 000 bail
requirement remain in effect.
¶
5. The court held another hearing on December 22 to address
the issue of whether defendant should be held without bail.
The State, however, chose not to pursue a hold-without-bail
order and instead argued that the $25, 000 bail requirement
should be maintained under 13 V.S.A. § 7554(a). At this
hearing, the court considered the bail and conditions in all
three of the above dockets.
¶
6. In its December 28 order, the court incorporated its
earlier findings and conclusions from the December 1 order.
These findings included that defendant was facing thirty-one
separate charges in fourteen pending cases, including serious
felonies such as aggravated first-degree domestic assault,
attempted sexual assault, and two counts of burglary
involving occupied residences. He faces potential life
imprisonment. Five of defendant's pending charges involve
violating conditions of release, indicating lack of
compliance with the "least restrictive"
requirements previously imposed by the court. His family ties
are minimal, and his mother is the putative victim in
connection with the aggravated first-degree domestic assault
charge. He is not employed, and is currently transient, if
not homeless, with no fixed residence. And he does not have
any financial resources. On the other hand, the court noted
that defendant was able to raise enough money to secure a
bail bond in the amount of $2000 to satisfy the deposit
requirement for the court's prior $10, 000 secured
appearance bond, he has no prior convictions, and no
failure-to-appear charges on his record; almost all of his
current pending charges have occurred in rapid succession
over several months. Considering these findings, the court
concluded that defendant did present a flight risk, so some
amount of bail was necessary to secure his appearance.
¶
7. The court issued an order converting bail for the two sets
of new charges filed on October 3 to a secured appearance
bond in the amount of $25, 000 with a ten percent deposit to
be paid to the court, concurrent in both cases. On the same
day, the court reimposed the $10, 000 secured appearance
bond, with a $2000 deposit, in the case involving the August
22 assault charges.[3] The $25, 000 and $10, 000 bond
requirements were ordered to run consecutive to each other.
The court also approved a family friend to serve as a
responsible adult in connection with one of defendant's
conditions of release. The court noted that release on
pretrial detention under 13 V.S.A. § 7554b, with more
structure and supervision by the Department of Corrections,
would be preferable, but observed that that statute is
infrequently used because the Department infrequently
approves the proposed residence and/or custodian, even though
such pre-approval is not explicitly required by the statute.
¶
8. Defendant was unable to post bail and remains in pretrial
custody. Defendant appealed the cash bail requirement to a
single Justice of this Court, who referred it to the full
court for consideration. 13 V.S.A. § 7556(b). His
primary argument on appeal is that the bail requirement set
by the trial court was unconstitutionally excessive and was
not the least restrictive means to assure defendant's
appearance in court because he is indigent and cannot meet
the bail amount. Defendant asserts that a bail decision must
be based on findings of a defendant's ability to pay and
that the trial court here did not properly consider
defendant's financial circumstances when setting bail.
¶
9. We conclude that under Vermont's constitutional and
statutory scheme, a trial court setting bail is not required
to make a finding that a defendant has an ability to pay the
required amount of bail.[4] However, under this scheme, and in
light of our caselaw on ...