                                       ENTRY ORDER

                        SUPREME COURT DOCKET NO. 2014-169

                                      MAY TERM, 2014

State of Vermont                                  }    APPEALED FROM:
                                                  }
                                                  }
   v.                                             }    Superior Court, Windsor Unit,
                                                  }    Criminal Division
Luke Theriault                                    }
                                                  }    DOCKET NO. 443-4-14 Wrcr

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


        Defendant appeals pursuant to 13 V.S.A. § 7556(b) from the denial of his motion to strike
from his conditions of release a twenty-four hour curfew. Defendant was arraigned on April 23
in Docket 436-4-14Wrcr for Reckless Endangerment and Possession of Cocaine (less than 2.5
grams), both charged as misdemeanors. Conditions of release were set. On April 25th he was
charged in Docket 443-4-14Wrcr with violating one of his conditions of release by possessing
marijuana. A twenty-four hour curfew was imposed. Following a hearing on defendant’s motion
to amend conditions of his release on May 12, 2014, the Superior Court, Windsor Criminal
Division imposed a twenty-four hour curfew in both dockets subject to the following exceptions:
“legal, medical, verifiable employment, or pick up/drop off of your children on [T]uesdays at the
[C]umberland [F]arms in [W]ilder and you may be out of your residence on Tuesdays and
Thursdays from 12pm-5pm.” On May 16, 2014, defendant filed an appeal of this condition.
This matter was heard by this Court on May 29, 2014.

       Under § 7556(b), any order concerning conditions of release “shall be affirmed if it is
supported by the proceedings below. If the order is not supported, . . . [a] single justice hearing
the matter may remand the case for a further hearing or may, with or without additional
evidence, order the person released.”

        From the transcript of the Motion to Amend Conditions of Release, it is apparent that the
trial court relied heavily on the factual basis for the charge of reckless endangerment—which
involved the discharge of a firearm—and defendant’s two failures to appear in connection with
charges brought back in 2002 and 2003 and one violation of probation from 2004.
Notwithstanding the court’s concern about defendant’s willingness to abide by court orders, the
judge amended the curfew condition as detailed above.

        Given the legislature’s admonition found in 13 V.S.A. § 7554(a)(2) that a judicial officer
should consider the least restrictive combination of conditions that will reasonably assure
protection of the public, and that “a physically restrictive condition may only be imposed in
extraordinary circumstances,” § 7554(a)(2)(D), I cannot find that the record below supports the
twenty-four hour curfew imposed, even as amended. His previous disregard of court orders
occurred a decade ago. He is facing only misdemeanor charges. He has surrendered his firearms
to law enforcement. I do not find these circumstances to be extraordinary. Therefore, I am
amending the conditions of release for both dockets to require a curfew from 8:00 pm to 6:00
am. This new curfew condition shall be in effect beginning on May 30, 2014. All other
conditions of release imposed by the trial court remain in effect.



                                              FOR THE COURT:



                                              Marilyn S. Skoglund, Associate Justice




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