                                       ENTRY ORDER


                        SUPREME COURT DOCKET NO. 2016-080

                                    MARCH TERM, 2016

State of Vermont                                  }    APPEALED FROM:
                                                  }
                                                  }
   v.                                             }    Superior Court, Rutland Unit,
                                                  }    Criminal Division
                                                  }
Benjamin Earle                                    }    DOCKET NOS. 1191-7-13 &
                                                  }                240-3-16 Rdcr
                                                  }
                                                       Trial Judge: Thomas A. Zonay

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

        This appeal involves two different determinations concerning bail in two different
dockets. In one, the trial court ordered that defendant be held without bail pending sentencing
after an adjudication of guilt on the underlying charge and his admission to two violations of
probation in connection with that charge. In the other, the trial court set bail at $50,000 cash or
surety. Defendant appeals both determinations. This Court affirms.

        This case involves four different cases identified by four different docket numbers: 1191-
7-13 (the heroin possession case), 1597-11-15 (the unlawful trespass case), 187-2-16 (the first
violation of conditions of release case), 240-3-16 (the second violation of conditions of release
docket). The relevant history may be briefly stated as follows.

        On July 15, 2013, defendant was charged with possession of heroin in violation of 18
V.S.A. § 4233(a)(2). (Docket number 1191-7-13). On May 16, 2014, defendant pled guilty to
this charge pursuant to a deferred sentencing agreement. The trial court accordingly deferred
sentencing and issued a deferred sentence and probation order. The State subsequently filed two
violation of probation (VOP) charges in November 2014 and January 2015. Defendant admitted
the two probation violations on February 26, 2015, and, prior to sentencing, was referred to the
Rutland County Treatment Court (RCTC).

        On May 12, 2015, the trial court issued amended conditions of release, which imposed a
condition ordering that defendant not have contact with E.T. On July 28, 2015, the trial court set
a bail amount of $10,000 for defendant to remain out on probation, and required defendant to
post a surety bond. In addition, the trial court issued amended conditions of release, again
including the specific no-contact condition regarding E.T.

       On November 24, 2015, defendant was charged with unlawful trespass in violation of 13
V.S.A. § 3705(d), and violation of the condition of release in docket number 1191-7-13
prohibiting him from having contact with E.T. (Docket number 1597-11-15.) Those charges
arose out of an incident in the early morning on November 13, 2015. According to an affidavit
given by E.T., defendant knocked on her apartment door some time between 2:00am and 3:00
am. E.T. ignored defendant’s knocking, but then heard a thud on the roof. E.T. did not have her
window locked, and defendant was able to enter the apartment through the unlocked window.
Defendant then began screaming at E.T. and threatening her guest. At one point, defendant
charged the two, and they fled the apartment. In her statement, E.T. expressed fear for her life
and fear that defendant would not ever leave her alone. She alleged that defendant regularly
phoned her work in an effort to get her fired. She concluded her statement by noting that she had
no idea what to do about defendant or how to protect herself. After his arraignment, defendant
was released on conditions in connection with the unlawful trespass case. His conditions
included a requirement that he have no contact with E.T.

        On February 17, 2016, pursuant to the State’s motion, defendant was discharged from the
RCTC. Subsequently, on February 22, 2016, defendant was charged with three new violations of
conditions of release. (Docket number 187-2-16). At argument on appeal, the State represented
without contradiction that these violations all related to contact with E.T on February 20.
However, the charging document and associated affidavits are not in the record provided to this
Court in connection with the appeal. The State represented without contradiction that the trial
court set a $5,000 bail amount, which defendant posted, in connection with this charge.

        On March 4, 2016, defendant was charged with two more violations of his conditions of
release, stemming from a series of text messages and phone calls to E.T. on February 26 and 27,
2016. (Docket number 240-3-16). The specific conditions violated were the prohibition of
contact with E.T. in the unlawful mischief case (1597-11-15) and the requirement that he comply
with all existing conditions in the first violation-of-conditions case (187-2-16). At the
arraignment, the following took place.

        At the arraignment in the most recent violation-of-conditions case (docket number 240-3-
16), the State requested that bail be set at $2,000 consecutive with the $5,000 bail set in the first
set of violations-of-conditions case (187-2-16). Defendant opposed any bail amount. According
to defendant, he was not a flight risk as evidenced by the fact that he has appeared at all his court
hearings, which spanned two felonies and six misdemeanors. Defendant argued that the purpose
of bail is to ensure defendant’s appearance, and in this case, there simply was no indication,
based on his prior appearances, that defendant would not appear.

        The trial court disagreed and imposed bail of $50,000 in the second violations-of-
conditions case (docket number 240-3-16). In setting bail, the trial court specifically noted that
in November 2015 when defendant allegedly trespassed into E.T.’s home, he was subject to a
condition in the heroin possession case that he not contact her. Then in February 2016 defendant
faced three charges of violating conditions of release for contacting E.T., including going to her
residence. Then, not two weeks later, defendant was charged with unlawful contact again—not
momentary or inadvertent, but involving sixteen text messages and nine phone calls. The court
acknowledged that the defendant had reliably appeared in court when required, and that he was
employed, but noted the growing number of charges and the recent escalation in defendant’s
alleged violations of his conditions—and in particular, the condition prohibiting contact with
E.T. The court concluded that there was a significantly greater risk of non-appearance than there
had been a few weeks prior, and set bail at $50,000 in docket number 240-3-16.

       In addition to setting bail in 240-3-16, the trial court also considered the impact of the
new charges on defendant’s status in the heroin possession and violation of probation case,
docket number 1191-7-13. In that case, defendant had been adjudicated guilty on the underlying
charge and had admitted the two probation violations; he was just awaiting sentencing.
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Acknowledging defendant’s strong family and community ties, long length of residence, no prior
failures to appear, and minimal record of convictions, the court concluded that defendant’s
inability to comply with the no-contact restrictions outweighed these other factors. Concluding
that there did not seem to be any conditions that effectively protected E.T. from contact with
defendant, the court ordered that he held without bail pending sentencing in that case. The trial
court rejected defendant’s argument that the fact that defendant sent texts and left phone
messages did not signal a threat to public safety. Although the content of the messages and calls
was not in evidence, defendant’s repeated violations of his conditions of release nonetheless
signals a safety issue.

       Defendant appealed both of these rulings.

        On appeal, defendant raises two arguments. First, defendant argues the trial court abused
its discretion in revoking bail in docket number 1191-7-13 because its finding that defendant
posed a risk to the public was not supported by the evidence. Second, defendant argues that the
court abused its discretion in setting bail at $50,000 in docket number 240-3-16 because its
finding concerning risk of flight was not supported by the evidence. The Court considers each in
turn.

                                  Revocation of Bail in 1191-7-13

        In the heroin possession case, defendant had been adjudicated guilty of the underlying
charge, and had admitted two violations of probation. He was awaiting sentencing. In contrast
to a defendant who has been charged but not yet convicted, defendant did not enjoy a
presumption of innocence, and was not presumed entitled to bail. See State v. Ryan, 134 Vt.
304, 305, 359 A.2d 657, 658 (1976) (after conviction, defendant is “not entitled to bail as of
right”); see 28 V.S.A. § 301(4) (noting that pending arraignment of any charge of a violation of
probation, there is “no right to bail or release”). A trial court in this circumstance may allow
bail, “even where . . . a defendant is not entitled to it.” State v. Pellerin, 2010 VT 26, ¶ 13, 187
Vt. 482, 996 A.2d 203 (quotation omitted). “In situations where there is no right to bail, we have
held that the trial court must exercise its discretion in determining whether to grant bail, and
must therefore make findings to indicate how that discretion was exercised.” State v. Morris,
2008 VT 126, ¶ 5, 185 Vt. 573, 967 A.2d 1139 (mem.).

          The factors to be considered by the trial court in exercising its discretion are set forth in
13 V.S.A. § 7554(b). See 13 V.S.A. § 7574 (“Upon an adjudication of guilt, the trial judge . . .
may terminate [terms and conditions of release] or may continue or alter them pending sentence
. . . . In making such a review, the judge shall consider the factors set forth in subsection 7554(b)
of this title, as well as the defendant’s conduct during trial and the fact of conviction.); V.R.Cr.P.
32.1(a)(3) (in deciding whether to release a defendant pending a revocation of probation hearing,
the trial court should consider the factors laid out in 13 V.S.A. § 7554(b)).

The factors listed in 13 V.S.A. § 7554(b) are:

               [T]he nature and circumstances of the offense charged, the weight
               of the evidence against the accused, the accused’s family ties,
               employment, financial resources, character and mental condition,
               the length of residence in the community, record of convictions,
               and record of appearance at court proceedings or of flight to avoid
               prosecution or failure to appear at court proceedings. Recent

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               history of actual violence or threats of violence may be considered
               . . . as bearing on the character and mental condition of the
               accused.

See also V.R.Cr.P. 46(c) (enumerating identical test for release pending sentencing and appeal).

        So the legal framework is as follows: defendant is not entitled to bail in connection with
the heroin possession charge and subsequent violation of probation charges; the trial court may
release defendant pending sentencing in its discretion; and the factors to be considered by the
trial court in exercising its discretion are set forth in 13 V.S.A. § 7554(b).

          Accordingly, this Court’s review is narrow. This Court must affirm the trial court’s order
“if it is supported by the proceedings below.” 13 V.S.A. § 7556(b). This standard is identical to
our abuse of discretion standard. Pellerin, 2010 VT 26, ¶ 13 (decision to grant or deny bail
where defendant is not entitled to it is reviewed for abuse of discretion).

         Defendant argues the trial court abused its discretion when it found that defendant posed
a risk to public harm. According to defendant, the trial court relied on the series of text messages
and phone calls to find defendant posed a risk of harm to the public. This reliance was an abuse
of discretion because the trial court did not know the content of the messages and phone calls
and therefore could not find that defendant posed a risk of harm to the public.

        This argument is unpersuasive. A review of the record reveals that the trial court, in
compliance with 13 V.S.A. §7554(b), relied on a number of factors in deciding to hold defendant
without bail pending sentencing in docket number 1191-7-13. The trial court noted that
defendant’s repeated violations of the no-contact orders creates a safety issue. This goes to the
defendant’s mental state and his ability to comply with court orders––orders, which were
designed to protect the safety of the public. Further, the trial court weighed these violations and
defendant’s ability to follow court orders against his strong ties to the community, his perfect
attendance at hearings, and his long residence in the community. Ultimately, the trial court
concluded the risk of defendant’s continued non-compliance with conditions outweighed
defendant’s likelihood of appearance. Given that there is no presumption to bail, and given
defendant’s repeated violations of no-contact orders, the trial court’s determination was within
its discretion. See State v. Foy, 144 Vt. 109, 115, 475 A.2d 219, 223 (1984) (“This Court will
not interfere with discretionary rulings that have a reasonable basis, even if another court might
have reached a different conclusion.” (citation omitted)).

                              $50,000 Bail Requirement in 240-3-16

Defendant’s second argument is governed by 13 V.S.A. § 7554(a)(1). That statute provides:

                The defendant shall be ordered released . . . upon the execution of
               an unsecured appearance bond in an amount specified by the
               judicial officer unless the judicial officer determines that such a
               release will not reasonably ensure the appearance of the person as
               required. In determining whether the defendant presents a risk of
               nonappearance, the judicial officer shall consider, in addition to
               any other factors, the seriousness of the offense charged and the
               number of the offenses with which the person is charged. If the
               officer determines that such a release will not reasonably ensure

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               the appearance of the defendant as required, the officer shall, either
               in lieu of or in addition to the above methods of release, impose the
               least restrictive of the following conditions or the least restrictive
               combination of the following conditions that will reasonably
               ensure the appearance of the defendant as required:

                ...

               Require the execution of a surety bond with sufficient solvent
               sureties, or the deposit of cash in lieu thereof.

In determining which conditions of release to impose, the trial court is required to consider the
factors listed in 13 V.S.A. 7554(b).

        This Court’s review is limited. This Court must affirm the trial court’s order “if it is
supported by the proceedings below.” 13 V.S.A. § 7556(b). The constitutionally legitimate
purpose of bail is to assure defendant’s appearance in court as ordered. State v. Brown, 2005 VT
104, ¶ 10, 179 Vt. 22, 890 A.2d 79.

        Defendant argues that the trial court’s findings and conclusions relating to risk of flight
are not supported by the evidence. He points to the additional exposure associated with the last
round of violation-of-conditions charges, and argues that it is relatively small in light of the
severe penalties he already faced for unlawful trespass and heroin possession. In defendant’s
view, the relatively minor violation-of-conditions charges could not reasonably be seen as
triggering a significant risk of flight given defendant’s unblemished record of court attendance
while facing far more serious charges.

        This Court rejects defendant’s argument. In concluding that the evidence reflected a
significantly increased risk of flight, the trial court did not rely solely or even primarily on the
marginal increase in defendant’s potential sanction as a result of the new violation-of-conditions
charges; rather, it inferred on the basis of defendant’s recent escalation of violations that his state
of mind was such that his risk of flight was heightened. For that reason, the trial court concluded
that the risk of non-appearance has changed over the course of two-weeks and concluded that the
bail amount necessary to insure defendant’s presence was $50,000 cash or surety. The trial
court’s decision is supported by the proceedings below.

       Affirmed.


                                                  FOR THE COURT:


   Publish
                                                  Beth Robinson, Associate Justice
   Do Not Publish




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