                                       ENTRY ORDER

                         SUPREME COURT DOCKET NO. 2013-363

                                  SEPTEMBER TERM, 2013

State of Vermont                                  }    APPEALED FROM:
                                                  }
                                                  }
   v.                                             }    Superior Court, Essex Unit,
                                                  }    Criminal Division
Jonathan Houle                                    }
                                                  }    DOCKET NO. 120-7-10 Excr
                                                  }
                                                       Trial Judge: Robert Bent

                         In the above-entitled cause, the Clerk will enter:

        Probationer appeals the order of the Superior Court, Essex Unit, Criminal Division,
requiring that he be held without bail. We affirm.

        On June 17, 2013, probationer, Jonathan Houle, pled no contest to lewd or lascivious
conduct with a child, in violation of 13 V.S.A. § 2602. The plea agreement called for a sentence
of two-to-fifteen years, suspended with probation. The probation conditions required, among
other things, that he participate in a sex-offender-treatment program and that, in connection with
that treatment, he acknowledge responsibility for the acts for which he was convicted. The
criminal division accepted the plea and sentenced probationer consistent therewith.

        Subsequently, the State filed a probation violation complaint, alleging that in connection
with the required sex-offender-treatment program, probationer denied his offense and stated that
he was appealing his conviction. Probationer was arraigned on August 22, 2013 on the
violation-of-probation charge (VOP). At that time, the court ordered that he be held without bail
pending his probation revocation hearing. At probationer’s request, the court held a bail review
hearing on September 10, 2013. After the bail review hearing the court ordered that probationer
remain held without bail. Probationer filed an appeal of the order denying bail with this Court on
September 17, 2013. In the meantime, probationer has filed a motion to dismiss the VOP
complaint and has separately filed a petition in the civil division for post-conviction relief (PCR),
neither of which is before this Court on this bail appeal.



           The court originally scheduled the bail review hearing for September 12, but on
September 6, in connection with probationer’s appeal of the Civil Division’s denial of his motion
for extraordinary relief, this Court directed that a hearing be scheduled promptly on the ground
that Vermont Rule of Criminal Procedure 32.1 requires compliance with the five-day bail review
timeline of 13 V.S.A. § 7554(d).
         In the present appeal, probationer argues that the trial court failed to properly weigh the
statutory factors in its bail review. In particular, probationer argues that the trial court did not
give adequate weight to his challenge to the legality of the underlying sentence on which the
VOP charge is based. He contends that because 28 V.S.A. § 204a requires a presentence
investigation (PSI) for individuals convicted of certain sex offenses, including the one for which
probationer was convicted, and because the court did not order a PSI in this case, the underlying
sentence upon which the VOP is based is unlawful. In the context of the bail review hearing in
the VOP case, probationer argues, the trial court should have taken into account the sentencing
court’s failure to order a PSI in connection with the underlying sentence. Probationer argues that
the trial court did not give this factor due consideration, and thus urges this Court to find the trial
court’s decision unsupported by the record below.

       The State argues that the trial court did not abuse its discretion, but instead properly
weighed the strength of the evidence in the VOP case against probationer. The State further
argues that a PSI can be and was properly waived in this instance, and that probationer seeks to
“sandbag” the trial court by seeking to overturn the underlying sentence on that ground.

        A convicted offender charged with violating the terms of probation has no right to bail or
release pending a hearing. 28 V.S.A. § 301(4); State v. Barrows, 172 Vt. 596 (2001) (mem.).
However, the court may release the probationer pending hearing. 28 V.S.A. § 301(4); V.R.Cr.P.
32.1(a)(3). In making the discretionary assessment regarding whether to release a probationer
pending the VOP hearing, a court is required to consider the factors listed in 13 V.S.A.
§ 7554(b). See 28 V.S.A. § 301(4); V.R.Cr.P. 32.1(a)(3). In particular, the trial court must
consider: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence
against accused; (3) the accused’s family ties, employment, financial resources, character and
mental condition; (4) the length of residence in the community; (5) record of convictions; (6)
record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at
court proceedings; and (7) recent history of actual violence or threats of violence bearing on the
accused’s character and mental condition. 13 V.S.A. § 7554(b).

        Although “the court has the discretion to grant bail or release to a probationer, it is not
required to do so.” Barrows, 172 Vt. at 596. On appeal, this Court must affirm the trial court’s
decision if it is supported by the proceedings below. 13 V.S.A. § 7556(b). We employ an abuse-
of-discretion standard, and will affirm unless probationer shows that “the trial court failed to
exercise its discretion, or exercised it for reasons clearly untenable or to an extent clearly
unreasonable.” Barrows, 172 Vt. at 596.

        Although the applicable statutes and rules reference § 7554 as providing the framework
for considering requests for bail by probationers facing VOP charges, these provisions fit
imperfectly with the unique circumstances of a probationer. For one thing, these provisions
typically govern the conditions of release applicable in a given case, rather than the threshold
question of whether to release an individual on bail or conditions. Moreover, they typically
apply to an individual awaiting trial who is presumed innocent. A probationer, on the other
hand, has already been convicted of an underlying crime and thus does not enjoy the same
presumption. The bail decision with respect to a convicted offender involves not only an
assessment of the offender’s risk of flight, but also implicates correctional concerns. For a



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persuasive, albeit non-precedential discussion of these considerations, see State v. Hazlett, No.
2002-144, 2002 WL 34423558, at *1 (Vt. Apr. 15, 2002) (single-Justice unpub. mem.) (noting
the “distinctly different postures” of a defendant in a traditional criminal case and a probationer
in a VOP case). Therefore, while the statutory factors that a trial court must apply may be the
same in both contexts, the starting point of the analysis—release as a starting point versus no
right to release—as well as the evidence to be considered and the weight accorded to each factor
may differ.

        In this case, the trial court considered the relevant factors in § 7554(b) and concluded that
probationer should not be released. With respect to probationer’s family and community ties, the
court noted probationer’s extensive family and community ties, gainful employment, and long-
standing residence in his community. The court further noted that while family and community
ties offer probationer support, they may also undermine his rehabilitation and compliance with
the conditions of his probation, given the stigma of the underlying offense. In particular, the
court noted that the ties “can make the necessary steps toward admission, rehabilitation, and or
risk management more difficult.”

        The court found that probationer had complied since 2010 with the restrictions of his
release but noted that his strong reaction to the bail review decision reminded the court that
“anxiety about a return to jail could well precipitate a decision to flee.”

       With respect to threats of violence, the court concluded that probationer poses a risk to
the safety of children. The court explained: “Without the protective mantle provided by the
presumption of innocence, what the court has before it is a convicted sex offender who is not
cooperating with an agreed upon disposition.” The court also noted that “[c]rimes such as he is
convicted of are done surreptitiously and are often concealed.”

        And the court afforded great weight to the fact that probationer pled no contest and has
been convicted of a serious crime; as the court explained, “[b]y entering a plea of no contest
[probationer] crossed the Rubicon between the world of the innocent and the world of the
guilty.”

         The court concluded that in light of the adjudication of probationer’s guilt, the
seriousness of the underlying offense, and the court’s perception that probationer posed a flight
risk, release was inappropriate. The court’s findings on these various points are supported by the
record, and its conclusion in light of these findings was not an abuse of discretion.

        Although probationer challenges these aspects of the trial court’s decision, his appeal
focuses primarily on his contention that, as a matter of law, the absence of a presentence
investigation renders his underlying sentence unlawful, and the VOP based on a violation of that
sentence invalid. This argument is squarely presented in probationer’s motion to dismiss below,
and the PCR petition he has filed in the civil division. In the context of this bail review hearing,
by contrast, this argument relates to one of a host of factors in the mix, and its bearing on that
factor is itself diluted. This Court’s review of petitioner’s argument in this context is accordingly
necessarily oblique. In this context, probationer must do more than show that he has the better
legal argument on this point; he has to show that the trial court abused or withheld its discretion



                                                 3
in the weight it afforded this particular argument relative to the others in the mix. Given the
procedural posture of this appeal and the applicable standard of review, the fact that the legal
argument presented by probationer is one that this Court has not previously addressed, and the
fact that neither his motion to dismiss nor his PCR petition has run its course in the trial court,
this Court would be reluctant, especially in the context of a single-justice review, to jettison the
trial court’s thoughtful weighing of various factors based on sufficient evidence in the record on
the ground that an untested legal argument renders those other factors irrelevant.

        To be sure, one factor in the bail-review analysis is “the weight of the evidence against
the accused,” and another is “the nature and circumstances of the offense charged.” 13 V.S.A.
§ 7554(b). In the ordinary application of § 7554(b), the meaning of these factors is more clear.
In this particular VOP context, an analysis of “the weight of the evidence against the accused”
could play out on any or all of several levels: (1) the sufficiency of the evidence supporting the
underlying charge for lewd or lascivious conduct under 13 V.S.A. § 2602, (2) the sufficiency of
the evidence for the alleged violation of probation, or (3) the question of law raised by
probationer regarding whether the lack of a presentence investigation renders the underlying
sentence unlawful.

       The trial court considered all of these layers. With respect to the first, it emphasized that
probationer had pled no contest to the underlying charge, and had been convicted. Although he
challenges his sentence, he has not made any arguments that would necessarily defeat his
underlying conviction. And, as the court noted, the State’s case on the underlying charges was
apparently sufficiently strong to induce probationer to plead no contest rather than risk trial.
With respect to the second, the trial court noted that defendant was not cooperating with an
agreed-upon disposition—a fact that probationer does not challenge here. The evidence that
probationer violated the terms of his probation as set forth in the probation agreement is
uncontested.

        At the third level, the trial court did consider probationer’s challenge to the underlying
sentence. In fact, the court gave probationer’s argument some credence, concluding that the
absence of a PSI “tends to undermine the strength of the State’s probation violation case.” It
declined to resolve the question because the briefing before it on the motion to dismiss squarely
raising the issue was incomplete. The court acknowledged that probationer raised serious
arguments, declined to issue a definitive ruling on the arguments in the bail review setting, and
balanced its analysis of probationer’s collateral attack on the underlying sentence with the
evidence of guilt of the underlying crime, the evidence of guilt of the VOP, and the other
findings relating to the statutory factors guiding the trial court’s discretion in the bail review.

        This Court similarly confines its review to the trial court’s weighing of the statutory
factors and defers resolution of the question of law regarding the PSI to the trial court in the first
instance. The court provided ample discussion of the facts bearing on whether bail is
appropriate, weighing probationer’s risk of flight as discerned based on family ties, length of
residence in the community, employment, demeanor in court, and the fact that he has been
convicted; the risk of violence and danger to the community posed by a convicted, untreated sex
offender who is not cooperating with an agreed-upon disposition; the strength of the State’s case




                                                  4
with respect to whether probationer violated probation; and the nature of the underlying crime as
well as the violation. The trial court’s decision is supported by the proceedings below.

        The Court acknowledges that if probationer is right on the law—that is, if the absence of
a PSI renders his underlying sentence, including the probation terms, unlawful, and if, as a
consequence, the VOP charge has no basis, that factor would overwhelm the other factors
guiding the trial court’s discretion concerning probationer’s request for bail pending a VOP
hearing. From that perspective, this Court’s unwillingness at this juncture to immediately and
directly engage the question of whether the underlying sentence is lawful might seem unduly
harsh. We nonetheless decline to address the merits of probationer’s legal challenge to his
sentence at this time for the following reason. Even if this Court jumped ahead of the trial
court’s ruling on the motion to dismiss and the civil division’s ruling on the PCR, and even if we
accepted probationer’s position on the law, the consequence would not likely be an order
requiring that probationer be released on bail and/or conditions.

        In the face of a ruling voiding probationer’s underlying sentence, and the VOP based on
that sentence, probationer would be a convicted sex offender awaiting sentencing. The trial court
would be required to conduct virtually the same analysis it has just conducted. See 13 V.S.A.
§ 7574 (requiring court to review conditions of release following adjudication of guilt pending
sentencing or appeal, allowing court to terminate release or alter conditions and terms, and
instructing court to consider factors in § 7554(b) as well as fact of conviction and defendant’s
demeanor during trial). Although the alleged VOP charge would no longer be in the mix, all of
the other factors relied upon by the trial court here would be present: the mixed effect of his
community ties, the risk of flight found by the trial court, the adjudication of guilt of a very
serious sex offense against a child accompanied by a refusal to acknowledge the conduct and
begin appropriate treatment, and the risk to children and the community. Moreover, this Court is
mindful of the civil division’s commitment to expedited proceedings in the PCR. For these
reasons, the urgency of addressing probationer’s collateral challenge to his sentence at the
earliest possible moment, without allowing development and resolution of the competing
arguments by the trial court in the first instance, is greatly diminished.

       Affirmed.


                                       FOR THE COURT:




                                       Beth Robinson, Associate Justice




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