Court, Rutland Unit, Criminal Division DOCKET NOS. 771-6-17
Rdcr, 890-7-17 Rdcr, 891-7-17 Rdcr, 1400-10-17 Rdcr,
1406-10-17 Rdcr, 1532-11-17 Rdcr, and 1533-11-17 Rdcr
Marilyn S. Skoglund, Associate Justice.
above-entitled cause, the Clerk will enter:
13 V.S.A. § 7556(b), Defendant appeals the trial
court's order increasing bail to $100, 000, arguing that
the amount was excessive and that there were less restrictive
alternatives to ensure defendant's appearance. We affirm.
2017, defendant was arraigned on two felonies-first-degree
aggravated domestic assault under 13 V.S.A. § 1043(a)(1)
and second-degree aggravated assault under 13 V.S.A. §
1044(a)(2)(b) (Docket No. 771-6-17 Rdcr). The State sought to
hold him without bail under 13 V.S.A. § 7553a, which
allows a court to hold an individual without bail "when
the evidence of guilt is great and the court finds . . . that
the person's release poses a substantial threat of
physical violence to any person and that no condition or
combination of conditions of release will reasonably prevent
the physical violence." After the weight-of-the-evidence
hearings held on July 3 and 17, 2017, the trial court found
that the evidence of guilt was not great for the first-degree
aggravated domestic assault charge. For the second-degree
aggravated assault charge, the trial court determined that
the evidence of guilt was great, but that defendant did not
pose a substantial threat of physical violence to any person.
The trial court concluded that $10, 000 bail was appropriate
together with conditions of release. The court based its
decision, in part, on defendant's flight risk due to his
flight from the courthouse during his arraignment in Addison
County, which resulted in an escape charge under 13 V.S.A.
§ 1501(a)(2) (Docket No. 890-7-17 Rdcr).
was charged with the following additional crimes: one count
of disorderly conduct under 13 V.S.A. § 1026(a)(1)
(Docket No. 891-7-17 Rdcr); two counts of violating
conditions of release for contacting the complaining witness
under 13 V.S.A. § 7559(e) and one count of obstruction
of justice under 13 V.S.A. § 3015 (Docket No. 1400-10-17
Rdcr); DUI#2 under 23 V.S.A. § 1201(a)(3) (Docket No.
1406-10-17 Rdcr); twelve counts of violating conditions of
release under 13 V.S.A. § 7559(e) (Docket No. 1532-11-17
Rdcr); and sixteen counts of violating conditions of release
under 13 V.S.A. § 7559(e) (Docket No. 1533-11-17 Rdcr).
At the arraignment for the latter two dockets, the court
considered the factors outlined by 13 V.S.A. § 7554(b)
and set bail at $25, 000 to assure defendant's
December 4, 2017, the State filed a motion to increase bail
in all pending dockets to $100, 000, pursuant to the
court's authority to amend bail orders under 13 V.S.A.
§ 7554(e). The State attached an affidavit from an
intelligence officer for the Department of Corrections
describing two different phone calls, from which, the State
argued, one could infer that defendant was planning to post
bail and leave the state. Based on this affidavit, the State
argued that defendant posed a significant risk of
nonappearance at future proceedings and thus, an imposition
of greater bail was required.
hearing the following day, the trial court considered various
13 V.S.A. § 7554(b) factors, including the
"seriousness of the charges, number of offenses, nature
and circumstance, record of convictions, prior failure to
appear, the fact that defendant fled from the courthouse,
[and] the character and mental condition as far as the
violence in the case, " all of which had remained
unchanged since the court order to set bail at $25, 000.
However, the court also considered the new information about
defendant's alleged plan to leave the state after posting
bail and held that the unchanged factors considered in light
of the new information weighed heavily in favor of a
determination that defendant would flee and would not be
present. While noting that "defendant's length of
residence in the community and his family ties are such that
they indicate he may well appear, " the trial court
concluded that $100, 000 "is an appropriate amount of
bail to reasonably assure  defendant's appearance at
Court reviews a decision setting conditions of release,
including the amount and type of bail, for abuse of
discretion and will affirm "if it is supported by the
proceedings below." 13 V.S.A. § 7556(b); see also
State v. Pratt, 2006 VT 97, ¶ 6, 180 Vt. 357.
Here, the trial court's consideration of and findings
regarding the 13 V.S.A. § 7554(b) factors, along with
the new information regarding defendant's phone calls,
are sufficient to support the increased bail and thus we
may "only impose bail to assure the defendant's
appearance at future court proceedings-in other words, the
purpose of bail is solely to reduce the defendant's risk
of flight." State v. Bailey, 2017 VT 18, ¶
8. Further, the court must "impose the least restrictive
. . . conditions . . . which will reasonably assure
appearance of the person." 13 V.S.A. § 7554(a)(1).
The court acted within its discretion when it concluded that
the new evidence of defendant's alleged plan to flee
after posting bail weighed overwhelmingly in favor of
increasing defendant's bail. Further, the court
considered other less restrictive means, such as having bail
be one part cash and surety and another part an appearance
bond, and concluded that those alternatives were insufficient
to ensure defendant's appearance. It was well within the
trial court's discretion to infer from the circumstances
of this case-which included one successful flight-and
defendant's recent statements regarding potential intent
to flee that a higher bail was required to ensure appearance.
argues that, based on this Court's recent decision in
Pratt, defendant's bail is excessive because
"bail requirements at a level a defendant cannot afford
should be rare." 2017 VT 9, ¶ 9. However, as noted
above, the bail in this case was not excessive because it was
not set at " 'a figure higher than an amount
reasonably calculated to fulfill' the purpose of
'giving adequate assurance that [the defendant] will
stand trial and submit to sentence if found guilty.'
" Id. ¶ 15 (quoting Stack v.
Boyle, 342 U.S. 1, 4-5 (1951)). Here, the new
information of defendant's alleged plan to flee in
combination with his past flight led the trial court to
reasonably calculate that the increased bail was the least
restrictive means to ensure defendant would appear.
defendant argues that the court's reliance on the
affidavit was improper under 28 V.S.A. § 107(b)(3).
Because defendant did not object to the admission of the
affidavit in the trial court, he has not preserved the issue
for appeal. State v. Cate, 165 Vt. 404, 410 (1996).
the Court must correct an erroneous comment made at the bail
appeal hearing held on January 16, 2018. The Court was
relying on an inaccurate Department of Corrections interim
memo-counsel was correct in asserting that the definition of
"Offender Local Records" includes only seven
subcategories. The Court misspoke in suggesting that the
parties can appeal this decision to a three-Justice panel.
Section 7556(b) of Title 13 states that "[n]o ...