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State v. Hodges

Supreme Court of Vermont

November 22, 2017

State of Vermont
v.
David Hodges

         Superior Court, Rutland Unit, Criminal Division DOCKET NO. 1544-11-15 Rdcr Trial Judge: Thomas A. Zonay

          ENTRY ORDER

          Paul L. Reiber, Chief Justice.

         In the above-entitled cause, the Clerk will enter:

         Defendant appeals the trial court's decision to hold him without bail pending the merits hearing on his alleged violation of the conditions of his probation. We hold that the trial court's October 26, 2017 decision that defendant should be held without bail is supported by the proceedings below, and we therefore affirm.

         In February 2017, defendant was convicted of domestic assault, in violation of 13 V.S.A. § 1042, and violation of an abuse prevention order, in violation of 13 V.S.A. § 1030(a). Defendant's convictions were based on allegations that he had seized his ex-girlfriend, pushed her to the ground, and dragged her by the hair. The trial court deferred defendant's sentences, and he was released on probation. The conditions of his probation required, among other things, that defendant not "harass, or cause to be harassed the victim, victim's family or any prosecution witness, " and defendant not "contact the victim or family nor enter the victim's home, school, or business without the victim's prior written consent." The conditions also required that defendant not engage in "[v]iolent or threatening behavior."

         Two weeks later, the victim reported to police that between March 3, 2017, and March 5, 2017, defendant twice arrived uninvited at the victim's residence; called or texted her more than twenty times; knocked on the door to her residence; knocked on her window; and entered her bedroom without permission and without invitation, demanding to know why she would not return his calls and why her new boyfriend was sleeping in the room with her. Because of these allegations, defendant was arrested and charged with violation of the conditions of his probation. He was also charged with unlawful trespass of an occupied residence, in violation of 13 V.S.A. § 3705(d). The unlawful-trespass charge proceeded in a separate criminal docket.

         On March 10, 2017, the court ordered defendant held without bail pending the merits hearing on his violation-of-probation charge. The order was based in part on the allegations underlying defendant's unlawful-trespass charge. The court emphasized that the convictions underlying his probation included failure to comply with the conditions of a relief-from-abuse order by committing domestic assault; the alleged victim of the violation was the victim in the underlying charges; and the alleged violation occurred less than two weeks after defendant was placed on probation. Defendant moved to review bail, which the court denied in April 2017. He then applied for home detention, which the court denied in May 2017. The court scheduled the merits and sentencing hearing for the violation-of-probation charge for January 2018.

         Defendant requested a trial on the unlawful-trespass charge be held before the court addressed the probation-violation charge. In October 2017, a jury found defendant not guilty of the unlawful-trespass charge. In light of the acquittal, defendant moved to review his hold-without-bail status. After a hearing, the trial court decided to continue to hold defendant without bail pending his merits hearing, despite the acquittal on the unlawful-trespass charge. Defendant timely appealed.

         On appeal, defendant argues that the trial court gave insufficient weight to three factors: the victim's reciprocal communications, which indicate she was not afraid of defendant and made her police report in response to defendant's new dating relationship; that defendant had been incarcerated seven months at the time of the bail-review hearing; and the fact that real-time electronic monitoring is now available, making home detention a viable alternative to incarceration. In short, defendant argues that the purpose of holding a defendant without bail is to protect public safety, but in this case-particularly considering the acquittal for the unlawful-trespass charge-imprisonment is not necessary.

         A court may exercise its discretion to release a defendant charged with violation of probation pending a merits hearing, but a probationer has no constitutional or statutory right to release if the probationer is on probation for a listed crime as defined in 13 V.S.A. § 5301(7). 28 V.S.A. § 301(4) ("[T]he court may release the probationer pursuant to section 7554 of Title 13. There shall be no right to bail or release . . . ."); State v. Barrows, 172 Vt. 596, 596 (2001) (mem.) ("[T]he court has the discretion to grant bail or release to a probationer, [but] it is not required to do so.").[*]

         Where a probationer has no constitutional or statutory right to bail, "the presumption is switched so that the norm is incarceration and not release." State v. Campbell, 2014 VT 123, ¶ 6, 198 Vt. 627 (mem.) (quotation omitted). The trial court has broad discretion whether to hold a probationer without bail, and this Court reviews the trial court's decision only for abuse of discretion. Id. We will affirm the trial court's decision "if it is supported by the proceedings below." Id.; see 13 V.S.A. § 7556(b) ("Any order so appealed shall be affirmed if it is supported by the proceedings below."); V.R.Cr.P. 32.1(a)(3)(A) (stating that denial of release pending revocation proceeding is reviewable in manner set forth in 13 V.S.A. § 7556(b)).

         In exercising its discretion, the court must consider the factors laid out in 13 V.S.A. § 7554(b). See Campbell, 2014 VT 123, ¶ 9 (relying on 13 V.S.A. § 7554, 28 V.S.A. § 301(4), and V.R.Cr.P. 32.1(a)(3)(A) to assert that courts are "require[d] . . . to consider § 7554(b) factors when determining conditions of release for probationers"). These factors are:

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 proceedings . . . .

13 V.S.A. § 7554(b). In addition, the court may consider the "history of actual violence or threats of violence . . . as bearing on the character and mental condition of the accused." Id. Further, in evaluating the § 7554(b) factors, the court must demonstrate for the record how it exercised its discretion in its bail determination. See State v. Passino, 154 Vt. 377, 379 (1990) (requiring ...


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