APPEALED FROM: Superior Court, Bennington Unit, Criminal
Division DOCKET NO. 987-10-18 Bncr
ENTRY ORDER
In the
above-entitled cause, the Clerk will enter:
Defendant
appeals the trial court's order setting $5000 bail. 13
V.S.A. § 7556(b). He argues that the court erred in
imposing bail without sufficient evidence or findings under
13 V.S.A. § 7554, and in setting cash bail without
considering his financial means. We agree that the court
exceeded its discretion in imposing bail with insufficient
evidence and findings concerning defendant's resources as
required under § 7554. We accordingly reverse and remand
for a hearing on appropriate conditions of release.
Defendant
was arrested on charges of first-degree aggravated domestic
assault with a weapon, 13 V.S.A. § 1043(a)(2), and
simple assault, 13 V.S.A. § 1023(a)(1), on September 28,
2018 after he allegedly chased several people, including his
girlfriend, with a knife, threatening to kill them. At that
time, the Court set no monetary bail, and released defendant
on conditions including having no contact with two
individuals; obeying an abuse-prevention order; and appearing
in court for his arraignment on October 1, 2018.
At
defendant's arraignment, a mental-health professional who
screened defendant pursuant to 13 V.S.A. § 7554c
testified that defendant had a history of serious mental
illness, including hospitalizations in the 1980s and 1990s,
that he had managed in the community for decades. Defendant
now wished, she said, to go to the Veterans Administration
(VA) hospital in Albany, New York for outpatient psychiatric
treatment, and had a friend who would pick him up and take
him there from Bennington. She stated that in her opinion,
defendant was not a danger to himself or others, as he had no
plan or intent to do harm, and had no access to weapons. She
also said that he did not meet the criteria for involuntary
mental-health treatment and emphasized that he was willing to
get outpatient treatment, as he had done in the past.
Defendant's
attorney represented that defendant could live with a friend
in Schenectady, where he would be able to go to the Albany VA
hospital, and that he had a friend who could pick him up that
day and take him there. The State asked that defendant be
held without bail pursuant to 13 V.S.A. § 7553a, and the
court ordered defendant held without bail pending a
weight-of-the-evidence hearing.
The
weight-of-the-evidence hearing commenced on October 12.
Defendant stipulated that the evidence of guilt was great. He
argued, however, that there was no evidence that his release
would pose a substantial risk of physical violence to any
person, let alone that no condition or combination of
conditions of release would reasonably prevent physical
violence.
At the
weight-of-the-evidence hearing, defendant introduced
testimony by a witness who stated that she lived in
Schenectady and wished to have defendant live with her. She
testified that she and the defendant had been dating for the
last five years, and that they had lived together before. She
stated she was not afraid of defendant in any way, and she
would be able to help support him in accessing care at the
VA. When asked if she would call the police if she had any
disagreements with defendant, she said she would
"normally talk things out," but that if that
failed, she would feel comfortable calling the police. When
asked whether she would call the police if defendant violated
conditions of release, such as a requirement that he go to
the VA for treatment, she answered "No."
The
weight-of-the-evidence hearing concluded on November 1.
(Subsequent to the first part of the weight-of-the-evidence
hearing, and prior to the second, defendant underwent an
evaluation and was found competent to stand trial.) Defendant
argued that there was no evidence under § 7553a that he
posed a continuing threat, as his only criminal history was a
1986 charge for driving while impaired. He argued that his
intent to reside in New York, away from the complainants,
weighed in favor of finding that he posed no continuing
threat.
The
court held that the State had not established that defendant
would pose a substantial threat of physical harm to any
person. The court acknowledged the circumstances of the
alleged offense, including the use of a weapon, but found no
evidence that the behavior was potentially continuing. It
thus denied the State's request to hold him without bail
under § 7553a.
Upon
denying the State's motion, the court then stated,
"I'm going to have to impose some cash bail . . .
because of the lack of ties to Vermont. And he has no place
to live in Vermont, and he is-for this fifteen-year maximum
sentence, that there is a risk of flight because of his lack
of any type of-he doesn't have a place to stay here.
He's got no transportation needs back and forth. He does
have a place to live in New York." On the basis of this
reasoning, the court imposed $5000 bail, cash for surety, and
issued conditions of release.
On
appeal, defendant first argues that the evidence does not
support a finding of risk of flight from prosecution,
particularly given that the Legislature amended § 7554
this year. In that amendment, the Legislature changed the
statute from requiring the trial court to consider whether
the defendant "presents a risk of nonappearance" to
whether the defendant "presents a risk of flight from
prosecution," defined as "any action or behavior
undertaken by a person charged with a criminal offense to
avoid court proceedings," 13 V.S.A. § 7576(9). It
also amended the statute to require the trial court to impose
the least restrictive conditions "that will reasonably
mitigate the risk of flight" instead of, as the statute
previously said, conditions "which will reasonably
assure the appearance of the person." Defendant argues
this amendment created a new standard for evaluating risk of
flight for the purposes of § 7554. Defendant secondly
argues that the trial court failed to consider his financial
means before setting cash bail, in violation of §
7554(a)(1).
This
Court will affirm the trial court's decision if it
"is supported by the proceedings below." 13 V.S.A.
§ 7556(c). We review the decision for abuse of
discretion. State v. Pratt, 2017 VT 9, ¶ 20,
204 Vt. 282. Here, we conclude the trial court exceeded its
discretion in failing to make the findings required under
§ 7554 to impose bail.
Vermont
law requires that "[a]ny person charged with an offense,
other than a person held without bail under section . . .
7553a of this title, shall at his or her appearance before a
judicial officer be ordered released pending trial." 13
V.S.A. § 7554(a). The defendant "shall be ordered
released on personal recognizance or upon the execution of an
unsecured appearance bond" unless the court finds that
doing so would "not reasonably mitigate the risk of
flight from prosecution." Id. §
7554(a)(1). In determining a defendant's risk of flight
from prosecution, the court must take into account the number
and seriousness of the charged offenses. Id. It must
also consider, given the available information, the nature
and circumstances of the offense charged, the weight of the
evidence, 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 or nonappearance at court
proceedings or of ...