State v. Byam

• Citation: 2017 VT 47
• Decision Date: 09 June 2017
• Docket Number: No. 2015-409,2015-409
• Court: United States State Supreme Court of Vermont
• Parties: State of Vermont v. Dale Byam

2017 VT 47

State of Vermont v. Dale Byam

No. 2015-409

Supreme Court of Vermont

September Term, 2016

June 9, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Orange Unit, Criminal Division

Michael C. Pratt, Acting Superior Judge, Specially Assigned

William J. Porter, Orange County State's Attorney, Chelsea, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. EATON, J. Defendant appeals the trial court's denial of his motion seeking credit against his sentence for time spent under pretrial conditions of release. Defendant urges this Court to apply a rule, a corollary to our decisions in State v. McPhee, State v. Platt, and State v. Kenvin, that would give him credit for days when he was subject to a twenty-four-hour curfew with exceptions, but when there was no guarantee that he was in fact compliant with the curfew. We decline to adopt defendant's proposed rule and instead adopt a rule under which nonstatutory home detention with a condition-of-release curfew is never sufficiently akin to penal incarceration to justify credit. Although our rationale is different than that applied by the trial court, our result is the same. Accordingly, we affirm.

¶ 2. The underlying facts of this case are not in dispute. Defendant was arraigned on July 17, 2013, for aggravated domestic assault and cruelty to a child. The Superior Court, Orange Unit, Criminal Division imposed conditions of pretrial release that included a twenty-four-hour curfew with exceptions only for legal and medical appointments and for emergencies. The court restricted defendant's place of residence to Orange County, though it did not specify a particular address, and prohibited defendant from leaving Orange County. Defendant posted cash bail on December 24, 2013 and moved directly to a residence in Orange County under the court's conditions of release.¹

¶ 3. On March 12, 2014, at defendant's request, the court added two exceptions to his twenty-four-hour curfew. The first allowed him to leave home on Saturdays between 9:00 a.m. and 12:00 p.m. to check his post office box in Orange County, go to the bank and visit his mother in Washington County, and run errands in Orange and Washington Counties. The second allowed him to visit one of his children at the Children's Hour Program at times ordered by the Washington County Family Division.

¶ 4. On November 24, 2014, defendant was arrested in Windsor County after being stopped for driving with a suspended license. The State charged him with five misdemeanors: two counts of violating conditions of release, one count of driving with a suspended license, one count of resisting arrest, and one count of escape. On November 25, 2014, defendant posted bail and the Superior Court, Windsor Unit, Criminal Division released him under conditions that included a twenty-four-hour curfew at his residence with exceptions for medical and legal appointments.² OnMarch 15, 2015, the Windsor Unit, Criminal Division transferred the case to the Orange Unit, Criminal Division.

¶ 5. On September 23, 2015, defendant pleaded guilty in the Orange Unit, Criminal Division to aggravated domestic assault, cruelty to a child, escape, and violation of conditions of release. Pending sentencing, the court modified defendant's conditions to allow him to serve his curfew at either his own residence or the home of his mother, to again allow him to leave the house on Saturdays from 9:00 a.m. to 12:00 p.m. to travel within Orange and Washington Counties for various purposes, and to authorize him to visit his child in Barre at times ordered by the Washington Unit, Family Division.

¶ 6. On October 12, 2015, the Orange Unit, Criminal Division held a sentencing hearing and determined that defendant was not eligible for credit for any of the time that he was released pursuant to conditions that included a curfew. The court concluded that the conditions of release throughout the entire period in question "were not comparable to confinement." The court reasoned that defendant was allowed to choose his place of residence within Orange County, was not under supervision, and was allowed to make "as few or as many legal and medical appointments as would be reasonable, and to do so at places and times of his choosing."

¶ 7. A summary of the most restrictive conditions in place during the various periods is as follows:

12/24/13-3/11/14

Reside in Orange County; twenty-four-hour curfew except for legal

and medical appointments and emergencies.

3/12/14-11/23/143

Reside in Orange County; twenty-four-hour curfew except for legal

and medical appointments and emergencies; curfew lifted from 9:00

a.m.-12:00 p.m. on Saturdays to visit his mother and for errands in

   Orange or Washington County; curfew lifted to allow supervisedparent-child contact with his children at times ordered by theWashington Family Division.  11/25/14-9/22/15  Reside in Orange County; twenty-four-hour curfew except for legaland medical appointments.  9/23/15-10/12/15  Reside in Orange County; twenty-four-hour curfew at defendant'sresidence or his mother's home in Washington County, except forlegal and medical appointments and emergencies; curfew lifted from9:00 a.m.-12:00 p.m. on Saturdays for errands in Orange orWashington County; curfew lifted to allow supervised parent-childcontact with his children at times ordered by the Washington Unit,Family Division. 

¶ 8. The question on appeal is whether defendant is entitled to credit toward service of his sentence under 13 V.S.A. § 7031 for any of the time he spent prior to his sentencing under conditions of release that included a twenty-four-hour curfew. Our analysis raises two subsidiary issues: (1) under what circumstances is a defendant subject to a twenty-four-hour curfew with limited exceptions "in custody" for purposes of granting statutory credit against a sentence; and (2) in determining whether a defendant is entitled to credit against a sentence, should a court consider the constraints on the defendant's liberty on a day-by-day basis, or a period-by-period basis? These are legal questions that we address without deference to the trial court. State v. Kenvin, 2013 VT 104, ¶ 20, 195 Vt. 166, 87 A.3d 454.

¶ 9. Under 13 V.S.A. § 7031(b), a court "shall give the person [convicted of an offense] credit toward service of his or her sentence for any days spent in custody." Our analysis hinges on the meaning of the words "in custody." Three precedents from this Court, all interpreting the phrase "in custody," provide the starting point for our analysis. Those cases collectively created a rule under which the trial courts, in reviewing a convicted defendant's claim for credit for time served under 13 V.S.A. § 7031(b), consider whether the individual's pretrial conditions of release were so restrictive as to be tantamount to either institutional confinement or home detention pursuant to 13 V.S.A. § 7554b.

¶ 10. In the first case, In re McPhee, we established that formal custody by the Department of Corrections is not required to satisfy the "custody" requirement of § 7031(b). 141Vt. 4, 9, 442 A.2d 1285, 1287-88 (1982). In In re McPhee, the defendant, McPhee, pleaded not guilty to a charge of murder. Id. at 6-7, 442 A.2d at 1286. The trial court set bail at $50,000 and, as a pretrial condition of McPhee's release, required him to stay at an in-patient alcohol treatment facility. Id. at 7, 442 A.2d at 1286. McPhee's initial conditions of release required that he not leave the treatment facility without supervision by a staff member. Id. After McPhee had been at the facility for three months, the trial court amended his conditions of release to permit him to leave the premises without supervision "if he had prior staff authorization and stated his purpose, his destination and his time of return." Id. at 6, 442 A.2d at 1286. McPhee ultimately pleaded guilty and sought credit under 13 V.S.A. § 7031(b) for the time he spent in the treatment center. Id. at 7, 442 A.2d at 1286.

¶ 11. On appeal, we held that the defendant was entitled to credit under § 7031(b). Id. at 9, 442 A.2d at 1287. Specifically, we reasoned that although we would not "treat custody so uniformly that a release in the custody of a parent which permits living at home becomes indistinguishable from a release in the custody of the commissioner of corrections for institutional confinement," court-ordered placement at a treatment facility was sufficiently restrictive on a defendant's liberty to qualify McPhee for credit. Id.

¶ 12. In the second case, State v. Platt, we concluded that a defendant released outside of an institutional setting and outside the custody of "any other person" was not "in custody" within the meaning of 13 V.S.A. § 7031(b). 158 Vt. 423, 431, 610 A.2d 139, 145 (1992). In that case, the defendant, Platt was charged with accessory-after-the-fact to murder. Id. at 424-25, 610 A.2d at 141. During the approximately two and one-half years between Platt's arrest and sentencing, he was required to remain in Windham County, to stay at his residence between 11:00 p.m. and 6:00 a.m., and to check in with his probation officers three times each week. Id. at 430, 610 A.2d at 144. We concluded that Platt's case was "distinguishable from McPhee both in kind and degree" and that he was therefore not entitled to credit. Id. at 431, 610 A.2d at 145. Specifically, welooked to decisions from the federal courts, which held that the federal stat...