FROM: Superior Court, Washington Unit, Criminal Division
DOCKET NO. 1195-11-17 Wncr Trial Judge: Howard E.
above-entitled cause, the Clerk will enter:
1. Defendant Tyreke Morton appeals from the trial court's
decision to hold him without bail pending a
weight-of-the-evidence hearing. 13 V.S.A. § 7553.
Defendant argues that because the court initially set
after-hours conditions of release, which included bail, the
only basis on which he could subsequently be held without
bail was through bail revocation pursuant to 13 V.S.A. §
7575. We disagree and affirm.
2. On the evening of November 5, 2017, defendant was arrested
for two counts of attempted murder. In an after-hours order
issued in the early morning hours, Judge VanBenthuysen
imposed a surety bond or cash in the amount of $150, 000, as
well as other conditions of release. Defendant's initial
appearance on these charges occurred later that day in the
Superior Court, Washington Criminal Division. During this
initial appearance, Judge Fenster granted the State's
request to hold defendant without bail pending a
weight-of-the-evidence hearing, as defendant was charged with
an offense that carries a penalty of life imprisonment. 13
V.S.A. § 7553. In addition, the court transferred
defendant to the custody of the Commissioner of the
Department of Mental Health for a competency and sanity
evaluation. 13 V.S.A. § 4814. Defendant did not object
to the temporary hold-without-bail order, but he was
concerned that the competency and sanity evaluation occur in
a timely manner. Defendant subsequently moved to stay the
sanity portion of the evaluation, which the court granted.
3. After the Department of Mental Health found defendant
competent to stand trial, he filed a motion to review bail.
The court held a hearing on January 17, 2018, during which
defendant argued that the court's decision at his initial
appearance to hold him without bail was illegal. That is,
defendant contended that because the court had set
after-hours bail when he was arrested, any subsequent
decision at his initial appearance to hold him without bail
must be based on findings sufficient to support bail
revocation pursuant to 13 V.S.A. § 7575, which lists
bases on which bail may be revoked once court has set
conditions of release. The court ruled orally that an
after-hours bail order is "often based on incomplete and
usually one-sided information, " and it should have the
discretion at an initial appearance to change an after-hours
bail order to a hold- without-bail order. In addition, the
court explained that since it was ready to proceed with a
weight-of-the-evidence hearing under § 7553, any
illegality in its decision at the initial appearance to hold
without bail was moot. The court then stated that it was
ready to proceed with a weight-of-the-evidence hearing.
Defendant explained that he needed to review new pieces of
the State's evidence and moved to withdraw his motion to
review bail, which the court granted without prejudice.
Defendant then appealed, reiterating his argument that bail
revocation pursuant to § 7575 is the only basis upon
which a court may impose a hold-without-bail order after bail
has been set in the context of an after-hours determination.
4. We typically review a trial court's bail determination
for abuse of discretion. State v. Pratt, 2017 VT 9, ¶
20, __ Vt. __, 166 A.3d 600. In this case, however, defendant
raises a question of law that we review without deference.
State v. Collins, 2017 VT 85, ¶ 8, __ Vt. __, __ A.3d __
5. We hold that the trial court was not required to revoke
defendant's bail pursuant to § 7575 in order to
impose a hold-without-bail order at his initial appearance.
We recognize that defendant frames the issue in this case
broadly as whether, in the absence of any new evidence
affecting the weight-of-the-evidence determination, a court
may issue a hold-without-bail order other than pursuant to
§ 7575 bail revocation after a court has set bail,
without regard to whether the initial bail order occurred
after-hours, at the initial appearance, or
thereafter. But we decide this case on the narrower
basis that a court can hold a defendant without bail
following an initial appearance even though the prior
after-hours order set conditions of release, including bail.
We ground our holding on the Vermont Rules of Criminal
Procedure's explicit characterization of after-hours bail
orders as temporary. The temporary nature of after-hours
determinations makes sense given that an initial after-hours
determination is often based on an incomplete, ex parte
recitation of the relevant facts, for which no record exists.
6. Pursuant to the Vermont Rules of Criminal Procedure, an
after-hours bail order is a temporary order. When a person is
arrested without a warrant-such as defendant-Vermont Rule of
Criminal Procedure 3(k) explicitly describes the temporary
status of after-hours bail:
A law enforcement officer after arresting a person shall
contact a judicial officer for determination of
temporary release pursuant to Rule 5(b) of these
rules without unnecessary delay.
(Emphasis added.) Vermont Rule of Criminal Procedure 5(b)
allows individual courts to "establish procedures and
standards by which persons arrested with or without a warrant
other than during normal business hours" may be released
temporarily pending an initial appearance. Rule 5(b)
further provides that the initial appearance before a judge
"shall be held as soon as possible after release."
V.R.Cr.P. 5(b). This plain language demonstrates that an
after-hours bail order is temporary and functions as a
stop-gap before the court can make a more informed bail
decision at the initial appearance. See State v.
Villar, 2017 VT ¶ 7, __Vt.__, __ A.3d __ ("In
construing a procedural rule, we look first to the rule's
plain language, just as with statutory construction.").
The temporary quality of the after-hours order, and the
swiftness with which the Rules mandate an initial appearance,
indicates that whatever bail determination the court makes at
the initial appearance replaces the after-hours order, rather
than revokes it.
7. The structure of these Rules makes sense. The initial
after-hours bail assessment is often based on an incomplete,
ex parte recitation of limited facts to a judicial officer
without the participation of the State's Attorney,
defense counsel, or defendant. The Rules recognize the
limitations of the after-hours order by treating it as
temporary, pending a more thorough assessment with more
comprehensive information at the initial
8. For these reasons, we affirm the trial court's
decision to hold defendant without bail pending further
review in a weight-of-the-evidence hearing, if defendant
L. Reiber, Chief Justice, Beth Robinson, Associate Justice,