                                         ENTRY ORDER

                          SUPREME COURT DOCKET NO. 2017-072

                                      MARCH TERM, 2017

                                                    }    APPEALED FROM:
 State of Vermont                                   }
                                                    }
                                                    }    Superior Court, Chittenden Unit,
    v.                                              }    Criminal Division
                                                    }
                                                    }    DOCKET NO. 74-1-17 Cncr
 James Parker, Jr.                                  }
                                                         Trial Judge: Nancy J. Waples

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

        Defendant appeals from the trial court’s February 14, 2017, order modifying his conditions
of release. The modified order reduced the amount of defendant’s bail from $25,000 to $7500, to
be posted as cash or a surety bond. Defendant does not challenge the amount of his bail, but
instead argues that the record below does not support the type of bail and that the trial court should
have imposed either a secured or unsecured appearance bond. We affirm as to the amount of
defendant’s bail but reverse and remand for further consideration as to the type of bail.

        Defendant was arrested on January 5, 2017, and arraigned that day for one felony count of
aggravated assault with a weapon. He entered a plea of not guilty. At the arraignment hearing,
the State did not seek to hold defendant without bail under 13 V.S.A. 7553a, proceeding under 13
V.S.A. § 7554. The State argued for bail in the amount of $25,000 and a number of conditions of
release that are not at issue in this appeal. The State’s argument was based on the allegations in
the case and its reading of defendant’s criminal record. First, the State alleged that defendant
attacked his companion with a knife when he discovered that the companion told a drug dealer that
defendant intended to rob the drug dealer. According to the State, the companion sustained injuries
when she grabbed the blade of the knife to prevent defendant from stabbing her. Second, the State
argued that defendant had “a long history of violent crimes,” mostly from Florida, and that his
Florida record included “a number” of failures to appear that made him a flight risk.

        The court considered defendant’s “recent connections” to Vermont, his “significant”
criminal record from Florida, the allegation that he used violence in the commission of a crime,
and his long-term connections to Florida. Based on those considerations, it imposed $25,000 bail
to be posted in cash or as a surety bond. Defendant moved to review bail and the court held a
hearing on January 30, 2017, a second hearing on February 6, 2017, and a third hearing on
February 14, 2017. At each of those hearings, defendant argued that the bail amount and type
were not the least restrictive conditions of release because defendant could not afford bail and
because the State had not established that defendant was a flight risk. At the February 14 hearing,
the court found that any failures to appear on defendant’s Florida record were too remote in time
to justify the $25,000 bail amount but concluded that some bail was necessary to ensure
defendant’s presence in court, based largely on the seriousness of the allegations against him. The
court reduced defendant’s bail to $7500, still to be posted in cash or as a surety bond. The court
did not make any findings about the type of bail it imposed. Because defendant cannot afford to
pay $7500 in cash or surety bond, he remains in custody.

       On appeal, defendant renews the arguments that he raised at the trial court: (1) that he does
not pose a flight risk and that $7500 cash or surety bond was not the least restrictive condition;
and (2) that the record does not support the type of bail—cash or surety bond—that the court
imposed.*

       “Vermont’s approach to pretrial release is grounded in the Vermont and U.S. Constitutions,
and is detailed in Vermont’s statutes.” State v. Pratt, 2017 VT 9, ¶ 10, __ Vt. __. The statute
applicable to this appeal provides that a defendant “shall be ordered released on personal
recognizance or upon the execution of an unsecured appearance bond” unless the court
“determines that such a release will not reasonably ensure the appearance of the person as
required.” 13 V.S.A. § 7554(a)(1). Under the statute, then, there is a rebuttable presumption that
a defendant is entitled to pretrial release on personal recognizance or an unsecured appearance
bond. Pratt, 2017 VT 9, ¶ 10.

        When determining whether a defendant poses a flight risk, the court “shall consider, in
addition to any other factors, the seriousness of the offense charged and the number of offenses
with which the person is charged,” as well as the nature and circumstances of the offense charged,
the weight of the evidence, and the defendant’s family ties , length of residence in the community,
employment, financial resources, character and mental condition, and record of nonappearances at
court proceedings. 13 V.S.A. §§ 7554(a)(1), (b). If the court finds that a defendant’s personal
recognizance or an unsecured appearance bond is insufficient to assure appearance at court
hearings, the court may impose “the least restrictive combination” of various enumerated
conditions designed to “reasonably assure the defendant’s appearance.” Id. § 7554(a)(1). Those
conditions include, among others, placing the defendant in the custody of a designated individual
if the defendant is charged with certain crimes, placing restrictions on the defendant’s travel,
association or place of abode, imposing a curfew, requiring the “execution of a secured appearance
bond” plus requiring the defendant to post not more than ten percent of the bond amount, and
requiring the defendant to execute a surety bond with sufficient solvent sureties. Id. Significantly,
“the statute sets forth a list of increasingly more restrictive conditions with the requirement that

       *
          There are three types of bond contemplated in the statutory bail scheme: a surety bond,
a secured appearance bond, and an unsecured appearance bond. A surety bond is an appearance
bond in which “a surety guarantees the appearance in court of a person charged with a criminal
offense, and pledges to pay the court a specified amount if the person fails to appear.” 13 V.S.A.
§ 7576(8); see also State v. Hance, 2006 VT 97, ¶ 9, 180 Vt. 357 (noting that third-party surety
may include “a family member, friend, or commercial bail bondsman”). A secured appearance
bond is an appearance bond in which a defendant pledges to pay the court a specified amount in
the event the defendant does not appear and “a portion of the bond is paid to the [c]ourt prior to
release.” 13 V.S.A. § 7576(6). An unsecured appearance bond is simply a written agreement
between a defendant and the court in which the defendant is released pretrial “if the person pledges
to pay the [c]ourt a specified amount in the event the person fails to appear.” 13 V.S.A. § 7576(1).


                                             2
the court go only so far down the list as necessary to ensure appearance.” State v. Duff, 151 Vt.
433, 435 (1989).

       On appeal, we must affirm a trial court order imposing bail or conditions of release “if it is
supported by the proceedings below.” 13 V.S.A. § 7556(c). This standard applies to both the
amount of bail imposed and the type of bail imposed. Hance, 2006 VT 97, ¶ 6. When the record
below does not support either the amount of bail imposed or the type of bail imposed, we reverse
and remand for further fact-finding. See Duff, 151 Vt. at 434.

         The trial court in this case made sufficient findings on the record to support the amount of
bail it imposed. Specifically, the court found that defendant posed a flight risk based on his “recent
connections” to Vermont, his “significant” criminal record from Florida, the allegation that he
used violence in the commission of a crime, and his long-term connections to Florida. See 13
V.S.A. § 7554(a)(1), (b). We therefore affirm as to the amount of bail imposed.

        We cannot say the same for the type of bail. Defendant requested a less restrictive
condition than cash or a surety bond multiple times over the course of his bail hearings. The court
made no findings, however, that explicitly supported the imposition of cash or a surety bond rather
than a secured or an unsecured appearance bond. Where, as was the case here, it is unclear whether
the court responded to the defendant’s request for a different type of bail, we decline to infer that
the judge necessarily considered and ruled out a secured or unsecured bail. Because the bail statute
“sets forth a list of increasingly more restrictive conditions,” Duff, 151 Vt. at 435, and because the
unsecured and secured appearance bond conditions precede the surety bond condition in the
statute, 13 V.S.A. § 7554(a)(1), the court should have made some minimal findings that would
support the imposition of a surety bond rather than the other, less restrictive options contemplated
in the statute. We emphasize that “[t]he bail statutes themselves assume that a defendant will be
released on personal recognizance or an unsecured appearance bond unless a finding is made that
such measures will be insufficient.” Hance, 2006 VT 97, ¶ 17. Once the court in this case
determined that defendant posed a flight risk, that presumption no longer applied, but the court
never explained why a surety bond—rather than an unsecured or secured appearance bond—was
necessary to ensure defendant’s presence. Because the record below contains insufficient
information to support the type of bail the court selected, we reverse and remand for further fact-
finding on this issue. Cf. Duff, 151 Vt. at 435.

       Affirmed as to the amount of bail. Reversed and remanded as to the type of bail.


                                                  FOR THE COURT:



                                                  Harold E. Eaton, Jr., Associate Justice




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