McPhee, In re, 226-81

• Decision Date: 02 February 1982
• Docket Number: No. 226-81,226-81
• Citation: 442 A.2d 1285,141 Vt. 4
• Court: Vermont Supreme Court
• Parties: , 29 A.L.R.4th 235 In re Ronald McPHEE.

Page 1285

442 A.2d 1285

141 Vt. 4, 29 A.L.R.4th 235

In re Ronald McPHEE.

No. 226-81.

Supreme Court of Vermont.

Feb. 2, 1982.

Stephen W. Gould, Defender, Correctional Facilities, Montpelier, for petitioner.

James P. Mongeon, Rutland County State's Atty., and Jeff Kirsch, Law Clerk (on the brief), Rutland, for defendant.

Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

BARNEY, Chief Justice.

The State is appealing time credit awarded the defendant based on bail time allegedly spent in custody. In response to a petition by the defendant the lower court gave credit against a sentence of three to ten years for manslaughter for time spent at a residential alcohol treatment facility, amounting to about seven months.

The defendant was originally arraigned in January, 1978, on a charge of murder, and pled not guilty. After hearing, the court issued a pretrial release order setting bail at $50,000, to be secured by sufficient sureties or the deposit of cash. The defendant was unable to raise the bail and petitioned for a bail review under 13 V.S.A. § 7554(d).

A second hearing was held and an amended pretrial release order issued containing the following conditions:

1. He shall execute an unsecured appearance bond in the sum of $50,000.00.

2. He shall reside at Lakeview Lodge in Newport, Vermont, under the supervision of its Director, Charles Moore, or his authorized agent or agents, pending his trial.

3. While residing at Lakeview Lodge he shall submit himself to such program of treatment as it shall recommend and shall abide by all rules and regulations for residents there.

4. He shall not leave the premises of Lakeview Lodge except in the company of a staff member.

5. He shall not possess or consume alcoholic beverages.

6. He shall not possess any firearms.

7. He shall appear in this Court when required.

8. Lakeview Lodge shall advise the Court immediately of any infractions of its rules and regulations or any violation of these conditions which come to its knowledge.

9. Lakeview Lodge, once a month, shall file a written summary report with the Court, and a copy to the State's Attorney of Rutland County and a copy to defense counsel, on defendant's progress therein.

10. The defendant and Charles Moore for Lakeview Lodge shall each countersign the original of this Order for pre-trial release to signify their acceptance of the conditions herein as they relate to each.

Defendant took up residence at the facility on January 26, 1978, and remained there until April 21, 1978. At that time, in response to a motion by the defendant, a modification was ordered by the court allowing the defendant to leave the premises of the facility unsupervised if he had prior staff authorization and stated his purpose, his destination and his time of return.

In August, pursuant to a plea agreement, the defendant received his three to ten year sentence less a credit of ten days for the time spent in jail for lack of bail. His request of credit for his time at the treatment facility was filed in March, 1981, and heard and ruled on in May, 1981.

The authority under which the defendant sought credit is 13 V.S.A. § 7031(b), which provides:

(b) The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which the person is received at the correctional facility for service of the sentence. The court shall give the person credit toward service of his sentence for any days spent in custody in connection with the offense for which sentence was imposed.

The trial judge found that the defendant's residence at the treatment center and compliance with its rules was required by the court, and that he was subject to reincarceration if he failed to abide by any of the conditions of release. Thus, he was not free to reside at a place of his choosing. This was enough, in the view of the lower court, to bring the statutory provisions providing for credit into play.

The State argues, in opposition, that the defendant was not, in the eyes of the law, in custody, and therefore was not eligible for the statutory credit. In the first place, it argues, the defendant was not under the custody of the commissioner of corrections, the facility being a private institution. Moreover, he was allowed to go to the facility as a condition of release under 13 V.S.A. § 7554 on the basis of his agreement to abide by the terms of the order.

13 V.S.A. § 7554(a) reads as follows:

(a) Any person charged with an offense other than an offense punishable by death, shall at his appearance before a judicial officer be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines in the exercise of his discretion that such a release will not reasonably assure the appearance of the person as required, or that the release of the person will constitute a danger to the public. When such a determination is made the judicial officer shall, either in lieu of or in addition...