State v. Racicot

• Decision Date: 08 February 2023
• Docket Number: 23-AP-039
• Parties: State of Vermont v. Cory Racicot*
• Court: Vermont Supreme Court

State of Vermont
v.
Cory Racicot*

No. 23-AP-039

Supreme Court of Vermont

February 8, 2023

APPEALED FROM: Superior Court, Bennington Unit, Criminal Division CASE NO. 22-CR-11925 Trial Judge: Kerry McDonald-Cady

ENTRY ORDER

WILLIAM D. COHEN, ASSOCIATE JUSTICE.

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

Defendant appeals from the criminal division's January 2023 decision on the record to set cash bail or surety for $600. He argues that the criminal division abused its discretion in setting monetary bail because: (1) there is insufficient factual support for the court's conclusion that he poses a risk of flight; (2) even if there were risk of flight, the court did not make sufficient factual findings supporting the amount or type of bail or how it would assure defendant's appearance; and (3) the court did not consider defendant's financial means. I agree as to all three and remand for further proceedings consistent with this order.

Relevant to this docket, defendant is charged with three misdemeanor violations of conditions of release for allegedly violating a twenty-four-hour curfew condition imposed in a previous docket. Defendant was arraigned in December 2022, at which time the criminal division imposed cash bail or surety in the amount of $2000. Upon defendant's motion for review, the criminal division lowered bail to $200 per charge-for a total of $600-pursuant to 13 V.S.A. § 7551(b)(2). Section 7551(b)(2) places a $200 per-charge maximum on bail set to mitigate the risk of flight from prosecution for defendants charged with certain types of misdemeanors.

In lowering the bail according to the statutory limit, the criminal division noted that defendant does not pose a risk of flight due to his community ties to Bennington and the lack of failures to appear or escapes in his criminal record. Instead, the court expressed concern over defendant's non-compliance with the court's orders and potential additional criminal activity. The court stated on the record, "the true risk of flight is will [a defendant] flee the jurisdiction from prosecution and not show up for court appearances. That's not the issue with [defendant] here. The issue is about having new cases, new charges, engaging in further criminal activity."

Defendant appeals pursuant to 13 V.S.A. § 7556(b), which provides for review of imposed or amended conditions of release by a single Justice of the Supreme Court. The

1

criminal division's order "shall be affirmed if it is supported by the proceedings below." 13 V.S.A. § 7556(b). This Court will "reverse only if the court has abused its discretion." State v. Bailey, 2017 VT 18, ¶ 9, 204 Vt. 294.

Section 7554(a)(1) of Title 13 allows for the imposition of cash bail only to "mitigate the risk of flight from prosecution." To determine whether a defendant presents a risk of flight from prosecution, the criminal division "shall consider, in addition to any other factors, the seriousness of the offense charged and the number of offenses with which the person is charged." Id. Once the court has determined that a defendant does present a risk of flight from prosecution, the criminal division "shall . . . impose the least restrictive . . . conditions that will reasonably mitigate the risk of flight of the defendant." Id. The criminal division may only require a surety bond or cash bail "[u]pon consideration of the defendant's financial means." 13 V.S.A. § 7554(a)(1)(E). Further, the criminal division must, while determining which conditions of release to impose, consider a host of factors listed in 13 V.S.A. §...