Opinion
SUPREME COURT DOCKET NO. 2012-302
09-20-2012
State of Vermont v. Stephen Synnott
ENTRY ORDER
APPEALED FROM:
Superior Court, Washington Unit,
Criminal Division
DOCKET NO. 1630-12-01 Wncr
Trial Judge: H. Van Benthuysen
In the above-entitled cause, the Clerk will enter:
Defendant Stephen Synnott appeals from an August 24, 2012 order by the Washington Superior Court, Judge Howard Van Benthuysen, declining to release him to Serenity House, a residential facility for drug abuse treatment, as ordered by the Chittenden Superior Court, Judge Alison Arms, in a July 16, 2012 order.
Judge Arms presided over defendant's arraignment for violation of probation on July 16, 2012. At the arraignment, the State sought to have defendant held without bail. However, exercising discretion given to courts in 28 V.S.A. § 301(4), Judge Arms agreed to release defendant pursuant to 13 V.S.A. § 7554, the general bail statute. Her order read: "Def[endant] may be released once a bed date is available at Serenity House. . . ."
After this order was issued, counsel for defendant learned that defendant had to reapply for admission to Serenity House due to having missed two report dates. He did so, and on August 15, 2012, defendant was accepted once again into Serenity House. However, when defense counsel contacted Serenity House to procure a bed date, he was informed that the bed date would be provided only once the court entered an updated release order. Defense counsel filed a request for updated release order the same day in Chittenden Superior Court, but the Court declined the filing and informed counsel that the motion should be refiled in Washington Superior Court, because the underlying conviction, and the probation order, came from that court. It was filed there two days later, on August 17, 2012. On August 24, 2012, the State filed a "Motion to Reconsider Suspending Defendant's Hold Without Bail" in Washington Superior Court.
In response to that motion, Judge Benthuysen issued an order the same day, without an evidentiary hearing or giving defendant an opportunity to respond, "declin[ing] to release [defendant] to Serenity House, which is not a secure facility." Neither the State's motion nor the Judge's order cited any violation of the conditions of release or changed circumstances from after the date of Judge Arms' July 16, 2012 order.
Defendant argues that the August 24, 2012 order constituted a revocation of bail, and thus should be evaluated under 13 V.S.A. § 7575. That statute lists a number of reasons for revocation of bail, and this Court has held in State v. Sauve, 159 Vt. 566, 577, 621 A.2d 1296 (1993), that "in order to have bail revoked, the State must prove that defendant violated conditions of release by a preponderance of the evidence."
The State argues that because defendant had no right to bail under 28 V.S.A. § 301(4), and the decision by Judge Arms to release defendant with conditions was discretionary, Judge Benthuysen's order did not constitute a "revocation" of bail, and 13 V.S.A. § 7575 therefore does not apply. Rather, the State argues that the judge should be allowed to "reconsider" under 13 V.S.A. § 7554 because of additional information that was available to Judge Benthuysen that was not available to Judge Arms.
While a judicial officer has the discretion to hold a defendant without bail under 28 V.S.A. § 301(4), once a decision has been made to release him or her on bail, that is done so pursuant to 13 V.S.A. § 7554. As soon as such an order has been entered, the defendant has the same status as any other person released on bail under that statute, including the same right to appeal under 13 V.S.A. §§ 7554 and 7556. See State v. Bower, No. 2010-042 (Vt. Feb. 17, 2010) (unpub. mem.). The fact that the decision subjecting defendant to 13 V.S.A. § 7554 was discretionary does not change the functioning of that statute once defendant has been released pursuant to it.
Although 13 V.S.A. § 7554(e) states that a judicial officer "may at any time amend the order to impose additional or different conditions of release," that is conditioned on the appeal provisions of § 7554(d) being available. Section 7554(d) provides a method of appealing conditions of release, not a method of appealing a revocation of bail, and thus § 7554(e) by its terms does not apply here. Even if its application were ambiguous, however, it cannot be read to allow a trial judge to change, without any evidence of violation of conditions of release, its decision on whether to release a defendant on bail, for doing so would render § 7575 superfluous. If a judge could simply "reconsider" his or her decision to release a defendant on bail, he or she would have no need ever go through the process of adjudicating whether the state had met its burden of proving violation of conditions of release under § 7575. Therefore, an order that "decline[s]" to implement the release detailed in the original order constitutes a revocation of bail and must be evaluated as such.
Because Judge Benthuysen's order constituted a revocation of bail, governed by 13 V.S.A. § 7575, the State had the burden to demonstrate, by a preponderance of the evidence, that the defendant had violated the conditions of release detailed in Judge Arms' July 16, 2012 order. It is undisputed that defendant never violated the conditions of release, and no other ground for revocation of bail applies.
During argument in this appeal, the State explained the need for the judge in the county of conviction to be able to reconsider the decision of the judge in the country of the arraignment because the latter judge does not have the needed information to make an informed decision. In response, defense counsel pointed out that the probation supervision had been moved to the county of defendant's residence and arraignment, and the probation officer was in the courtroom when the bail hearing was considered. The remedy here is a better sharing of information; not a new bail decision as if the first decision had never been made. The order of the Washington Superior Court of August 24, 2012 is vacated and the order of the Chittenden Superior Court of July 16, 2012 is reinstated.
FOR THE COURT:
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John A. Dooley, Associate Justice