On
Appeal from Superior Court, Orange Unit, Criminal Division
Michael C. Pratt, Acting Superior Judge, Specially Assigned.
William J. Porter, Orange County State's Attorney,
Chelsea, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
JJ.
EATON,
J.
¶
1. Defendant appeals the trial court's denial of his
motion seeking credit against his sentence for time spent
under pretrial conditions of release. Defendant urges this
Court to apply a rule, a corollary to our decisions in
State v. McPhee, State v. Platt, and
State v. Kenvin, that would give him credit for days
when he was subject to a twenty-four-hour curfew with
exceptions, but when there was no guarantee that he was in
fact compliant with the curfew. We decline to adopt
defendant's proposed rule and instead adopt a rule under
which nonstatutory home detention with a condition-of-release
curfew is never sufficiently akin to penal incarceration to
justify credit. Although our rationale is different than that
applied by the trial court, our result is the same.
Accordingly, we affirm.
¶
2. The underlying facts of this case are not in dispute.
Defendant was arraigned on July 17, 2013, for aggravated
domestic assault and cruelty to a child. The Superior Court,
Orange Unit, Criminal Division imposed conditions of pretrial
release that included a twenty-four-hour curfew with
exceptions only for legal and medical appointments and for
emergencies. The court restricted defendant's place of
residence to Orange County, though it did not specify a
particular address, and prohibited defendant from leaving
Orange County. Defendant posted cash bail on December 24,
2013 and moved directly to a residence in Orange County under
the court's conditions of release.[1]
¶
3. On March 12, 2014, at defendant's request, the court
added two exceptions to his twenty-four-hour curfew. The
first allowed him to leave home on Saturdays between 9:00
a.m. and 12:00 p.m. to check his post office box in Orange
County, go to the bank and visit his mother in Washington
County, and run errands in Orange and Washington Counties.
The second allowed him to visit one of his children at the
Children's Hour Program at times ordered by the
Washington County Family Division.
¶
4. On November 24, 2014, defendant was arrested in Windsor
County after being stopped for driving with a suspended
license. The State charged him with five misdemeanors: two
counts of violating conditions of release, one count of
driving with a suspended license, one count of resisting
arrest, and one count of escape. On November 25, 2014,
defendant posted bail and the Superior Court, Windsor Unit,
Criminal Division released him under conditions that included
a twenty-four-hour curfew at his residence with exceptions
for medical and legal appointments.[2] On March 15, 2015, the
Windsor Unit, Criminal Division transferred the case to the
Orange Unit, Criminal Division.
¶
5. On September 23, 2015, defendant pleaded guilty in the
Orange Unit, Criminal Division to aggravated domestic
assault, cruelty to a child, escape, and violation of
conditions of release. Pending sentencing, the court modified
defendant's conditions to allow him to serve his curfew
at either his own residence or the home of his mother, to
again allow him to leave the house on Saturdays from 9:00
a.m. to 12:00 p.m. to travel within Orange and Washington
Counties for various purposes, and to authorize him to visit
his child in Barre at times ordered by the Washington Unit,
Family Division.
¶
6. On October 12, 2015, the Orange Unit, Criminal Division
held a sentencing hearing and determined that defendant was
not eligible for credit for any of the time that he was
released pursuant to conditions that included a curfew. The
court concluded that the conditions of release throughout the
entire period in question "were not comparable to
confinement." The court reasoned that defendant was
allowed to choose his place of residence within Orange
County, was not under supervision, and was allowed to make
"as few or as many legal and medical appointments as
would be reasonable, and to do so at places and times of his
choosing."
¶
7. A summary of the most restrictive conditions in place
during the various periods is as follows:
|
12/24/13-3/11/14
|
Reside in Orange County; twenty-four-hour curfew
except for legal and medical appointments and
emergencies.
|
|
3/12/14-11/23/14[3]
|
Reside in Orange County; twenty-four-hour curfew
except for legal and medical appointments and
emergencies; curfew lifted from 9:00 a.m.-12:00 p.m.
on Saturdays to visit his mother and for errands in
Orange or Washington County; curfew lifted to allow
supervised parent-child contact with his children at
times ordered by the Washington Family Division.
|
|
11/25/14-9/22/15
|
Reside in Orange County; twenty-four-hour curfew
except for legal and medical appointments.
|
|
9/23/15-10/12/15
|
Reside in Orange County; twenty-four-hour curfew at
defendant's residence or his mother's home in
Washington County, except for legal and medical
appointments and emergencies; curfew lifted from 9:00
a.m.-12:00 p.m. on Saturdays for errands in Orange or
Washington County; curfew lifted to allow supervised
parent-child contact with his children at times
ordered by the Washington Unit, Family Division.
|
¶
8. The question on appeal is whether defendant is entitled to
credit toward service of his sentence under 13 V.S.A. §
7031 for any of the time he spent prior to his sentencing
under conditions of release that included a twenty-four-hour
curfew. Our analysis raises two subsidiary issues: (1) under
what circumstances is a defendant subject to a
twenty-four-hour curfew with limited exceptions "in
custody" for purposes of granting statutory credit
against a sentence; and (2) in determining whether a
defendant is entitled to credit against a sentence, should a
court consider the constraints on the defendant's liberty
on a day-by-day basis, or a ...