APPEALED
FROM: Superior Court, Caledonia Unit, Criminal Division
DOCKET NO. 372-6-16 Cacr Trial Judge: Thomas A. Zonay
ENTRY ORDER
In the
above-entitled cause, the Clerk will enter:
¶
1. Defendant Armand Henault appeals the Caledonia superior
court's order holding him without bail. For the reasons
below, we affirm.
¶
2. Defendant is charged with four counts: (1) promoting a
recording of sexual conduct in violation of 13 V.S.A. §
2824(a); (2) sexual assault in violation of 13 V.S.A. §
3252(a)(1); (3) sexual assault of a victim less than sixteen
years old in violation of 13 V.S.A. § 3252(c); and (4)
contributing to the delinquency of a minor in violation of 13
V.S.A. § 1301. The maximum sentence for the second
charge against defendant is life imprisonment. 13 V.S.A.
§ 3252(f)(1).
¶
3. Both the Vermont Constitution and its implementing
statutes presume that bail shall be granted except that
"[a] person charged with an offense punishable by life
imprisonment when the evidence of guilt is great may be held
without bail." 13 V.S.A. § 7553; see also
Vt. Const. ch. II, § 40. Thus, the presumption of bail
reverses where a person is charged with a crime carrying a
maximum sentence of life imprisonment and the State can show
"great" evidence of guilt. State v.
Avgoustov, 2006 VT 90, ¶ 2, 180 Vt. 595, 907 A.2d
1185 (mem.). In such a case, "[a] presumption arises in
favor of incarceration" though a trial court has
discretion to, instead, impose conditions of release on a
defendant and permit bail. Id.
¶
4. In the exercise of its discretion, a trial court may look
to the factors listed in 13 V.S.A. § 7554(b) to decide
whether a defendant should be granted bail regardless of the
presumption of incarceration. State v. Ford, 2015 VT
127, ¶ 10, 200 Vt. 650, 130 A.3d 862 (mem.) ("In
exercising its discretion to release a defendant, the trial
court may look to the factors listed in §
7554[.]"); see also Avgoustov, 2006 VT
90, ¶ 7 (holding trial court "adequately exercised
its discretion" where it "considered certain
factors set forth in 13 V.S.A. § 7554"); State
v. Rondeau, 2017 VT 21, ¶ 12, Vt., A.3d (mem.)
(holding trial court had discretion to consider §
7554(b) factors to deny bail). However, § 7554(b) by its
terms applies directly only to decisions about conditions
when defendant has a constitutional right to bail. Section
7554(b) lists nine factors:
the 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
proceeding or of flight to avoid prosecution or failure to
appear at court proceedings.
13 V.S.A. § 7554(b).
¶
5. In this case, one of the charges against defendant carries
a maximum sentence of life imprisonment and defendant
conceded before the trial court that the State has sufficient
evidence of guilt to trigger a reversal of the constitutional
presumption in favor of bail. The trial court accordingly
found that defendant was not bailable as a matter of right
and then individually considered each § 7554(b)
factor's application to defendant. The court found that
factors related to the defendant's length of residence in
the community, financial resources, lack of prior criminal
record, and absence of any previous failures to appear in
court weighed in favor of a discretionary decision imposing
conditions of release. But the court also found that those
factors were significantly outweighed by the seriousness of
the offense charged against defendant, the nature and
circumstances of that offense, and defendant's character
and mental condition. Finally, the court acknowledged that
defendant had previously been released on home detention and
that he had violated the terms of home detention at least
once. As a result, the trial court declined to impose
conditions of release and held defendant without bail.
¶
6. Defendant argues on appeal that the trial court abused its
discretion by "triple- counting" the sufficiency of
the State's evidence when it considered the §
7554(b) factors and that the trial court did not give
sufficient weight to a witness's testimony supporting
defendant's character and mental condition. We cannot
agree with either of defendant's arguments.
¶
7. First, defendant argues that the trial court erred when it
found that, because defendant had conceded that the State had
"great" evidence of guilt for purposes of the
§ 7553 analysis, the weight of the evidence for purposes
of the § 7554(b) analysis also favored holding defendant
without bail. This analysis is within the trial court's
broad discretion. Avgoustov, 2006 VT 90, ¶ 2
("The court's discretion is extremely broad, but its
decision cannot be arbitrary."). Indeed, a court's
determination of the weight of the evidence under §
7554(b) is "of course contained within its 13 V.S.A.
§ 7553 finding that the evidence of guilt [is]
great." Rondeau, 2017 VT 21, ¶ 13. We find
no abuse of discretion here.
¶
8. Next, defendant argues that the court erred when it
weighed the nature of the charged offenses in its
consideration of defendant's character and mental
condition. In response to this point, we reiterate that while
a trial court may look at the § 7554(b) factors
when deciding whether to grant a defendant bail, §
7554(b) is not specifically applicable to a trial court's
consideration of whether bail should be authorized when a
defendant is presumed not to be bailable. Thus, the language
of § 7554(b) that requires consideration of each factor
in determining conditions of release is not applicable.
See 13 V.S.A. § 7554(b) ("In determining
which conditions of release to impose . . . the [court] shall
. . . take into account [each of the listed factors].").
When a trial court uses the § 7554(b) factors to guide
consideration of whether to grant bail to a defendant not
presumed to be bailable, as the court did here, the broad
discretion allocated to the court indicates that strict
application of each factor's narrowest definition is not
required. We will find that a trial court has abused its
discretion only where "the discretion of the trial court
was exercised on grounds or for reasons clearly untenable, or
to an extent clearly unreasonable." State v.
Toomey, 126 Vt. 123, 125, 223 A.2d 473, 475 (1966).
Here, the court acted within its discretion.[*] We interpret
its consideration of the nature of the charges as bearing on
defendant's character and mental condition as a
recognition that the charges arise out of defendant's
conduct that occurred with respect to a former patient in
therapy sessions. Thus, the charges allege both personal and
professional misconduct, and this reflects on defendant's
character.
¶
9. We also cannot agree with defendant that the court gave
inadequate weight to a witness's testimony in favor of
defendant's character and mental condition. The
witness's testimony focused almost entirely on her
willingness to help defendant with necessary errands if he
was rereleased on home detention, not on defendant's
character and mental ...