                                         ENTRY ORDER

                                            2018 VT 22

                          SUPREME COURT DOCKET NO. 2018-044

                                    FEBRUARY TERM, 2018

 State of Vermont                                   }    APPEALED FROM:
                                                    }
                                                    }
    v.                                              }    Superior Court, Washington Unit,
                                                    }    Criminal Division
                                                    }
 Tyreke Morton                                      }    DOCKET NO. 1195-11-17 Wncr

                                                         Trial Judge: Howard E. VanBenthuysen

                         In the 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.1 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 __ (mem.).

         ¶ 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.2 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.




       1
           The court reiterated this holding in a written entry order issued the same day. The court
explained that it had the power during defendant’s initial appearance to hold him without bail
pending a § 7553 weight-of-the-evidence hearing, see State v. Bickel, 166 Vt. 633, 634, 698 A.2d
243, 243-44 (1997) (mem.), a conclusion defendant does not challenge on appeal. The court noted
that at the initial appearance it was not required to proceed through § 7575 because “[t]hat section
is clearly intended to provide a mechanism post-arraignment and after conditions of release have
been set for the court to revoke the right to bail.” (Emphasis in original.) And, “[w]ere it read the
way defendant suggests, section 7575 would operate to prohibit the arraigning judge from ever
changing an after-hours cash bail requirement to a hold-without-bail order,” which would be
“illogical when one considers that the judge setting after hours bail often has to do so based on
incomplete information.” Accordingly, the court determined, § 7575 “does not prevent a second
judge who conducts the [initial appearance] from altering the release of a defendant from that
ordered after hours by the first judge.”
       2
          In State v. Blow, we ruled that if the weight of the evidence shifts after the court issues
a bail order following a weight-of-the-evidence hearing, the court can hold a defendant without
bail pursuant to § 7553 and is not required to find the bases for bail revocation pursuant to § 7575.
2015 VT 143, ¶ 13, 201 Vt. 633, 135 A.3d 672 (mem.). In Collins, we declined to decide whether
the court can hold a defendant without bail after issuing conditions, including bail, relying instead
on procedural factors unique to that case. 2017 VT 85, ¶¶ 11-14. We recognized in Collins that
this Court has not yet resolved the question defendant raises here. Id.
                                                  2
       ¶ 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 109, ¶ 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 appearance.3

       ¶ 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 requests review.

       Affirmed.

                                                  BY THE COURT:



                                                  Paul L. Reiber, Chief Justice

   Publish
                                                  Beth Robinson, Associate Justice
   Do Not Publish

                                                  Harold E. Eaton, Jr., Associate Justice




       3
          Because we rest our decision on the specific limitations of after-hours orders under our
Rules, we need not consider the impact on the broader issue raised by defendant of this Court’s
one-justice entry order in State v. Synnott, No. 2012-302, 2012 WL 5975002 (Vt. Sept. 11, 2012)
(unpub. mem.).
                                                  3
