State v. Pratt

• Decision Date: 10 March 2017
• Docket Number: No. 2017-029,2017-029
• Citation: 2017 VT 9
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Malik A. Pratt

2017 VT 9

State of Vermont
v.
Malik A. Pratt

No. 2017-029

Supreme Court of Vermont

February Term, 2017
March 10, 2017

ENTRY ORDER

APPEALED FROM:

DOCKET NOS. 3643-9-16/3646-10-16/ & 3102-8-16 Cncr

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

FOR THE COURT:

/s/_________
Beth Robinson, Associate Justice

Concurring:

/s/_________
Paul L. Reiber, Chief Justice

/s/_________
John A. Dooley, Associate Justice

/s/_________
Marilyn S. Skoglund, Associate Justice

/s/_________
Harold E. Eaton, Jr., Associate Justice

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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, Chittenden Unit, Criminal Division

Dennis R. Pearson, J.

Ryan O. Richards, Chittenden County Deputy State's Attorneys, Burlington, and David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Michael J. Straub, Law Offices of Michael J. Straub, Burlington, and Sara Puls, Appellate Defender, Montpelier, for Defendant-Appellant.

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

¶ 1. ROBINSON, J. This case calls upon us to consider whether a court may, in order to secure a defendant's appearance in court, impose bail in an amount that the defendant is unable to pay. Defendant appeals the trial court's requirement that he post a secured appearance bond in the amount of $25,000 with a ten percent deposit to be paid to the court. Defendant is now being held for lack of bail, and he argues that the amount set by the trial court is excessive. Although a court must consider a defendant's financial resources in determining conditions of release, we conclude that neither the U.S. nor Vermont Constitution nor the applicable Vermont statutes require trial courts to find that a defendant has a present ability to raise bail in the amount set by the court. Although courts must consider a defendant's financial resources when they set bail,

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courts may set bail at a level that a particular defendant cannot secure. In setting bail, courts must always be guided by the goal of securing a defendant's appearance at trial, and should not set bail at an unattainable level for the purpose of detaining a defendant rather than assuring the defendant's appearance. Given these standards, and the broad discretion trial courts enjoy in these cases, we conclude that the trial court's bail decision is "supported by the proceedings below," 13 V.S.A. § 7556(b). We accordingly affirm.

¶ 2. On August 22, 2016, defendant was arraigned on two felony charges for aggravated domestic assault, 13 V.S.A. § 1043(a), and attempted sexual assault, 13 V.S.A. § 3252(a)(1). (Docket No. 3102-8-16 Cncr). Initially, the State requested that defendant be held without bail, and the court scheduled a hearing to consider the motion.¹ The State subsequently withdrew its motion to hold defendant without bail and requested that the court impose bail and conditions of release requiring defendant to stay with a responsible adult and abide by a curfew. The court imposed a $10,000 secured appearance bond, with a $2000 deposit to be paid to the court. On September 12, defendant posted bail through a bail bondsman and was released under conditions that required him to stay at a court-approved address, comply with a curfew, not contact the victim, and enroll in school.

¶ 3. On October 3, defendant was arrested and arraigned on two new sets of charges. Included in the first set of charges was one felony count of burglary, 13 V.S.A. § 1201(c)(1), three misdemeanor counts of violating conditions of release, 13 V.S.A. § 7559(e), and two misdemeanor counts ofbuying, receiving, selling, possessing, or concealing stolen property, 13 V.S.A. § 2561(b) (Docket No. 3643-9-16 Cncr). The court set bail at $25,000 for this set of charges, consecutive to defendant's existing bail obligation, and imposed a number of conditions of release. Included in

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the second set of charges was one count of felony possession of methamphetamine, 18 V.S.A. § 4234a(a), and misdemeanor counts of resisting arrest, 13 V.S.A. § 3017(a)(1), unlawful trespass, 13 V.S.A. § 3705(a), and petit larceny, 13 V.S.A. § 2502 (Docket No. 3646-10-16 Cncr). The court imposed bail of $2500 for this set of charges, concurrent with the bail imposed in the first set of charges.²

¶ 4. On November 18, defendant filed a motion to review the $25,000 bail determination, and the court held a hearing to consider the motion on November 28. Defendant argued that the State failed to provide evidence that he could meet the bail requirement and that the court must make particularized findings regarding defendant's risk of flight that would justify the bail amount. In its December 1 order, the court considered the role of a defendant's ability to raise bail in a bail determination, asking whether any amount of bail may be imposed upon an indigent defendant. It did not directly answer the question in its analysis. Instead, after reviewing the evidence pertinent to the bail review hearing, the court concluded that there had been a dramatic escalation over the course of several months in the alleged criminality of defendant's conduct, with criminal charges exponentially increasing in quantity and severity. The court concluded that the real issue in this case was protecting the public from further criminal behavior that could include the risk of violence and physical harm to others. Accordingly, the court scheduled another hearing on the issue of whether defendant should be held without bail under § 7553a. In the meantime, the court ordered that the $25,000 bail requirement remain in effect.

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¶ 5. The court held another hearing on December 22 to address the issue of whether defendant should be held without bail. The State, however, chose not to pursue a hold-without-bail order and instead argued that the $25,000 bail requirement should be maintained under 13 V.S.A. § 7554(a). At this hearing, the court considered the bail and conditions in all three of the above dockets.

¶ 6. In its December 28 order, the court incorporated its earlier findings and conclusions from the December 1 order. These findings included that defendant was facing thirty-one separate charges in fourteen pending cases, including serious felonies such as aggravated first-degree domestic assault, attempted sexual assault, and two counts of burglary involving occupied residences. He faces potential life imprisonment. Five of defendant's pending charges involve violating conditions of release, indicating lack of compliance with the "least restrictive" requirements previously imposed by the court. His family ties are minimal, and his mother is the putative victim in connection with the aggravated first-degree domestic assault charge. He is not employed, and is currently transient, if not homeless, with no fixed residence. And he does not have any financial resources. On the other hand, the court noted that defendant was able to raise enough money to secure a bail bond in the amount of $2000 to satisfy the deposit requirement for the court's prior $10,000 secured appearance bond, he has no prior convictions, and no failure-to-appear charges on his record; almost all of his current pending charges have occurred in rapid succession over several months. Considering these findings, the court concluded that defendant did present a flight risk, so some amount of bail was necessary to secure his appearance.

¶ 7. The court issued an order converting bail for the two sets of new charges filed on October 3 to a secured appearance bond in the amount of $25,000 with a ten percent deposit to be paid to the court, concurrent in both cases. On the same day, the court reimposed the $10,000 secured appearance bond, with a $2000 deposit, in the case involving the August 22 assault

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charges.³ The $25,000 and $10,000 bond requirements were ordered to run consecutive to each other. The court also approved a family friend to serve as a responsible adult in connection with one of defendant's conditions of release. The court noted that release on pretrial detention under 13 V.S.A. § 7554b, with more structure and supervision by the Department of Corrections, would be preferable, but observed that that statute is infrequently used because the Department infrequently approves the proposed residence and/or custodian, even though such pre-approval is not explicitly required by the statute.

¶ 8. Defendant was unable to post bail and remains in pretrial custody. Defendant appealed the cash bail requirement to a single Justice of this Court, who referred it to the full court for consideration. 13 V.S.A. § 7556(b). His primary argument on appeal is that the bail requirement set by the trial court was unconstitutionally excessive and was not the least restrictive means to assure defendant's appearance in court because he is indigent and cannot meet the bail amount. Defendant asserts that a bail decision must be based on findings of a defendant's ability to pay and that the trial court here did not properly consider defendant's financial circumstances when setting bail.

¶ 9. We conclude that under Vermont's constitutional and statutory scheme, a trial court setting bail is not required to make a finding that a defendant has an ability to pay the required amount of bail.⁴ However, under this scheme, and in light of our caselaw on the subject, bail requirements at a level a defendant cannot afford should be rare.

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¶ 10. Vermont's approach to pretrial release is grounded in the Vermont and U.S. Constitutions, and is detailed in Vermont's statutes. The Vermont Constitution provides that, with two...