State v. Lohr

• Decision Date: 05 June 2020
• Docket Number: No. 2020-118,2020-118
• Citation: 2020 VT 41
• Parties: State of Vermont v. James C. Lohr
• Court: Vermont Supreme Court

2020 VT 41

State of Vermont v. James C. Lohr

No. 2020-118

Supreme Court of Vermont

April Term, 2020

June 5, 2020

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, Windham Unit, Criminal Division

John R. Treadwell, J.

Dana Nevins, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff-Appellant.

Daniel Stevens, Public Defender, Brattleboro, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. COHEN, J. Defendant James Lohr was held without bail prior to trial under 13 V.S.A. § 7553a, entitling him to a trial within sixty days pursuant to Chapter II, § 40 of the Vermont Constitution and 13 V.S.A. § 7553b. When his trial could not occur within that timeframe, the superior court released him on conditions under 13 V.S.A. § 7554 without imposing bail. The State appeals, arguing that the court was required to impose bail under §§ 40 and 7553b, and, separately, that the court erred in releasing defendant without bail under § 7554. We affirm.

¶ 2. Defendant is charged with aggravated and simple assault under 13 V.S.A. §§ 1024(a)(1) and 1023(a)(1) for allegedly hitting and strangling the complainant on February 10, 2020 at the complainant's home in an apartment building in Brattleboro. At arraignment, the superior court released defendant on conditions, including that he not contact the complainant and that he remain at least 300 feet from her. Shortly after the court imposed these conditions, the complainant called the police complaining that defendant had rung her doorbell. Police responded and located defendant at his friend's apartment in the same building where the complainant lives, prompting the State to charge defendant with violating the above conditions of release. Following a weight-of-the-evidence hearing, the court held defendant without bail under 13 V.S.A. § 7553a and ordered a trial within sixty days pursuant to Chapter II, § 40 of the Vermont Constitution and 13 V.S.A. § 7553b.¹

¶ 3. Section 40 provides, in relevant part:

Except in the case of an offense punishable by death or life imprisonment, if a person is held without bail prior to trial, the trial of the person shall be commenced not more than 60 days after bail is denied. If the trial is not commenced within 60 days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set bail for the person.

Vt. Const. ch. II, § 40; see also 13 V.S.A. § 7553b (mirroring this language). Defendant filed a motion under §§ 40 and 7553b, arguing that he should be released because his trial could not be held within sixty days due to this Court's Administrative Order 49, which suspended trials in the state to contain the spread of COVID-19. The court held a hearing, during which the State conceded that defendant satisfied the requirements of §§ 40 and 7553b, but argued that the phrase "shall set bail" directed the court to impose bail, which it requested at $50,000. The court disagreed and engaged in an analysis under 13 V.S.A. § 7554, which allows a court to impose conditions of release with or without bail to mitigate a risk that a defendant will flee from prosecution and to protect the public. Applying the § 7554 framework, the court released defendant on conditions without imposing bail. The State appeals under 13 V.S.A. § 7556(c), arguing that the court wasrequired to impose bail under §§ 40 and 7553b, and that, in any event, the court erred in releasing defendant without bail under § 7554.

¶ 4. We first determine whether the sixty-day rule in §§ 40 and 7553b mandates the imposition of bail, or whether it refers the court to a § 7554 analysis. This is an unresolved question of law that we review without deference. See, e.g., State v. Collins, 2017 VT 85, ¶ 8, 205 Vt. 632, 177 A.3d 528 (mem.) ("We review questions of law . . . de novo."). The sixty-day rule has been addressed twice before: first, in State v. Lontine, 2016 VT 26, 201 Vt. 637, 142 A.3d 1058, which addressed the rule's applicability, and second, in State v. Kelcey, No. 02-398, 2002 WL 34422470 (Vt. Sept. 1, 2002) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo02398.pdf [https://perma.cc/3EFF-ZELV], which remanded a case to the trial court to "set conditions of release" when a trial was unlikely to be held within sixty days. Lontine, however, did not consider the question presented in this case, and Kelcey lacks the required analysis to provide any guidance.

¶ 5. Because we are interpreting identical language in a constitutional amendment and a statute, " 'we look primarily to the intent of the voters in adopting the amendment, but we also consider the intent of the Legislature in adopting' the statutory counterpart." State v. Pellerin, 2010 VT 26, ¶ 5, 187 Vt. 482, 996 A.2d 204 (quoting State v. Madison, 163 Vt. 360, 368, 658 A.2d 536, 541 (1995)); see also 1993, No. 143 (Adj. Sess.), §§ 2-3, 6 (adding §§ 7553a and 7553b and making them effective upon adoption of proposed amendment to § 40). When construing parallel constitutional and statutory provisions, we begin with the familiar plain-language analysis. See Pellerin, 2010 VT 26, ¶ 7; Madison, 163 Vt. at 368, 658 A.2d at 541-42. "If the plain language is clear and unambiguous, we will enforce it according to its terms." Pellerin, 2010 VT 26, ¶ 7 (quotation omitted); see also Peck v. Douglas, 148 Vt. 128, 133, 530 A.2d 551, 554 (1987) ("If the constitutional language, in and of itself, unambiguously furnishes answers to the questions for decision, it prevails over extraneous aids to interpretation.").

¶ 6. However, we have recognized that certain terms have legal meanings distinct from common usage, such that it would be speculative to determine the average voter's understanding of the language. See Madison, 163 Vt. at 368, 658 A.2d at 542. In such circumstances, we turn to alternative means of construction to divine the intent of the voters, including judicial decisions and legal commentaries. Id. As for statutory construction, "if the statute is ambiguous, we ascertain legislative intent through consideration of the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law." Harris v. Sherman, 167 Vt. 613, 614, 708 A.2d 1348, 1349 (1998) (mem.).

¶ 7. Additionally, although constitutional and statutory interpretation are distinct analyses, rules of statutory construction have a logical force that makes them suitable to constitutional interpretation, if carefully employed. See Turner v. Shumlin, 2017 VT 2, ¶ 24, 204 Vt. 78, 163 A.3d 1173 ("The standards for interpreting constitutional language and meaning, though related, are not the same as for ordinary statutes. Canons of construction, if applied, must be used more cautiously and sometimes differently." (quoting Peck, 148 Vt. at 132, 530 A.2d at 554)). We apply two longstanding rules of construction in construing § 40 of the Constitution in this case. First, we do not read sentences or phrases in isolation; instead, we examine "the whole and every part" of a provision, together with others governing the same subject matter, as parts of a system. State v. Berard, 2019 VT 65, ¶ 12, ___ Vt. ___, 220 A.3d 759 (quotation omitted); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) ("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."). Second, we avoid interpretations that lead to absurd results. See, e.g., Munson v. City of S. Burlington, 162 Vt. 506, 510, 648 A.2d 867, 870 (1994). These rules are of course right at home in our parallel consideration of the Legislature's intent in enacting the statutory counterpart in § 7553b.

¶ 8. Applying these principles, we conclude that the language "shall set bail" in the sixty-day rule is ambiguous and has a legal meaning beyond what common usage may suggest, justifying an analysis past its plain language. We first note that the imperative "shall" generally means that the provision is mandatory. State v. Hemingway, 2014 VT 48, ¶ 11, 196 Vt. 441, 97 A.3d 465. The sixty-day rule provides that if its conditions are met, "the court shall immediately schedule a bail hearing and shall set bail for the person." Vt. Const. ch. II, § 40; 13 V.S.A. § 7553b. Thus, we know that whatever "set bail" means, the court must do it, and it must hold a hearing before doing so. We also know what "bail" means for the purpose of the statute. The Legislature defined bail as "any security, including cash, pledged to the court to ensure that a person charged with a criminal offense will appear at future court proceedings."² 13 V.S.A. § 7576(2). That much is clear.

¶ 9. The State argues that "shall set bail" can only mean "must impose bail." If we read phrases in isolation and ignored absurd results, this would indeed be the only possible interpretation. Because we do not, it is not. The ambiguity and meaning of the phrase only emerge when we apply the rules of construction identified above. The first provision in § 40 is that "[e]xcessive bail shall not be exacted for bailable offenses." Vt. Const. ch. II, § 40; see also U.S. Const. Amend. VIII ("Excessive bail shall not be required . . . ."). It is settled that "the sole constitutionally legitimate purpose of monetary conditions of release is to provide 'additional assurance of the presence of an accused.' " State v. Pratt, 2017 VT 9, ¶ 13, 204 Vt. 282, 166 A.3d 600 (quoting State v. Cardinal...