ENTRY ORDER

SUPREME COURT DOCKET NO. 2013-363

SEPTEMBER TERM, 2013

State of Vermont } APPEALED FROM:

}

}

 v. } Superior Court, Essex Unit,

} Criminal Division

Jonathan Houle }

} DOCKET NO. 120-7-10 Excr

}

Trial Judge: Robert Bent

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

Probationer appeals the order of the Superior Court, Essex Unit, Criminal Division, 

requiring that he be held without bail. We affirm.

On June 17, 2013, probationer, Jonathan Houle, pled no contest to lewd or lascivious 

conduct with a child, in violation of 13 V.S.A. § 2602. The plea agreement called for a sentence 

of two-to-fifteen years, suspended with probation. The probation conditions required, among 

other things, that he participate in a sex-offender-treatment program and that, in connection with 

that treatment, he acknowledge responsibility for the acts for which he was convicted. The 

criminal division accepted the plea and sentenced probationer consistent therewith. 

Subsequently, the State filed a probation violation complaint, alleging that in connection 

with the required sex-offender-treatment program, probationer denied his offense and stated that 

he was appealing his conviction. Probationer was arraigned on August 22, 2013 on the 

violation-of-probation charge (VOP). At that time, the court ordered that he be held without bail 

pending his probation revocation hearing. At probationer’s request, the court held a bail review 

hearing on September 10, 2013. After the bail review hearing the court ordered that probationer

remain held without bail. Probationer filed an appeal of the order denying bail with this Court on 

September 17, 2013. In the meantime, probationer has filed a motion to dismiss the VOP

complaint and has separately filed a petition in the civil division for post-conviction relief (PCR), 

neither of which is before this Court on this bail appeal. 

 

 The court originally scheduled the bail review hearing for September 12, but on 

September 6, in connection with probationer’s appeal of the Civil Division’s denial of his motion 

for extraordinary relief, this Court directed that a hearing be scheduled promptly on the ground 

that Vermont Rule of Criminal Procedure 32.1 requires compliance with the five-day bail review 

timeline of 13 V.S.A. § 7554(d).
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In the present appeal, probationer argues that the trial court failed to properly weigh the 

statutory factors in its bail review. In particular, probationer argues that the trial court did not 

give adequate weight to his challenge to the legality of the underlying sentence on which the 

VOP charge is based. He contends that because 28 V.S.A. § 204a requires a presentence 

investigation (PSI) for individuals convicted of certain sex offenses, including the one for which 

probationer was convicted, and because the court did not order a PSI in this case, the underlying 

sentence upon which the VOP is based is unlawful. In the context of the bail review hearing in 

the VOP case, probationer argues, the trial court should have taken into account the sentencing 

court’s failure to order a PSI in connection with the underlying sentence. Probationer argues that 

the trial court did not give this factor due consideration, and thus urges this Court to find the trial 

court’s decision unsupported by the record below. 

The State argues that the trial court did not abuse its discretion, but instead properly 

weighed the strength of the evidence in the VOP case against probationer. The State further 

argues that a PSI can be and was properly waived in this instance, and that probationer seeks to 

“sandbag” the trial court by seeking to overturn the underlying sentence on that ground. 

A convicted offender charged with violating the terms of probation has no right to bail or 

release pending a hearing. 28 V.S.A. § 301(4); State v. Barrows, 172 Vt. 596 (2001) (mem.). 

However, the court may release the probationer pending hearing. 28 V.S.A. § 301(4); V.R.Cr.P. 

32.1(a)(3). In making the discretionary assessment regarding whether to release a probationer 

pending the VOP hearing, a court is required to consider the factors listed in 13 V.S.A. 

§ 7554(b). See 28 V.S.A. § 301(4); V.R.Cr.P. 32.1(a)(3). In particular, the trial court must 

consider: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence 

against accused; (3) the accused’s family ties, employment, financial resources, character and 

mental condition; (4) the length of residence in the community; (5) record of convictions; (6) 

record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at 

court proceedings; and (7) recent history of actual violence or threats of violence bearing on the 

accused’s character and mental condition. 13 V.S.A. § 7554(b). 

 

Although “the court has the discretion to grant bail or release to a probationer, it is not 

required to do so.” Barrows, 172 Vt. at 596. On appeal, this Court must affirm the trial court’s 

decision if it is supported by the proceedings below. 13 V.S.A. § 7556(b). We employ an abuseof-discretion standard, and will affirm unless probationer shows that “the trial court failed to 

exercise its discretion, or exercised it for reasons clearly untenable or to an extent clearly 

unreasonable.” Barrows, 172 Vt. at 596. 

Although the applicable statutes and rules reference § 7554 as providing the framework 

for considering requests for bail by probationers facing VOP charges, these provisions fit 

imperfectly with the unique circumstances of a probationer. For one thing, these provisions 

typically govern the conditions of release applicable in a given case, rather than the threshold 

question of whether to release an individual on bail or conditions. Moreover, they typically 

apply to an individual awaiting trial who is presumed innocent. A probationer, on the other 

hand, has already been convicted of an underlying crime and thus does not enjoy the same 

presumption. The bail decision with respect to a convicted offender involves not only an 

assessment of the offender’s risk of flight, but also implicates correctional concerns. For a 
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persuasive, albeit non-precedential discussion of these considerations, see State v. Hazlett, No. 

2002-144, 2002 WL 34423558, at *1 (Vt. Apr. 15, 2002) (single-Justice unpub. mem.) (noting 

the “distinctly different postures” of a defendant in a traditional criminal case and a probationer 

in a VOP case). Therefore, while the statutory factors that a trial court must apply may be the 

same in both contexts, the starting point of the analysis—release as a starting point versus no 

right to release—as well as the evidence to be considered and the weight accorded to each factor 

may differ.

In this case, the trial court considered the relevant factors in § 7554(b) and concluded that 

probationer should not be released. With respect to probationer’s family and community ties, the 

court noted probationer’s extensive family and community ties, gainful employment, and longstanding residence in his community. The court further noted that while family and community 

ties offer probationer support, they may also undermine his rehabilitation and compliance with 

the conditions of his probation, given the stigma of the underlying offense. In particular, the 

court noted that the ties “can make the necessary steps toward admission, rehabilitation, and or 

risk management more difficult.” 

The court found that probationer had complied since 2010 with the restrictions of his 

release but noted that his strong reaction to the bail review decision reminded the court that 

“anxiety about a return to jail could well precipitate a decision to flee.” 

With respect to threats of violence, the court concluded that probationer poses a risk to 

the safety of children. The court explained: “Without the protective mantle provided by the 

presumption of innocence, what the court has before it is a convicted sex offender who is not 

cooperating with an agreed upon disposition.” The court also noted that “[c]rimes such as he is 

convicted of are done surreptitiously and are often concealed.”

And the court afforded great weight to the fact that probationer pled no contest and has 

been convicted of a serious crime; as the court explained, “[b]y entering a plea of no contest 

[probationer] crossed the Rubicon between the world of the innocent and the world of the 

guilty.”

The court concluded that in light of the adjudication of probationer’s guilt, the 

seriousness of the underlying offense, and the court’s perception that probationer posed a flight 

risk, release was inappropriate. The court’s findings on these various points are supported by the 

record, and its conclusion in light of these findings was not an abuse of discretion.

Although probationer challenges these aspects of the trial court’s decision, his appeal 

focuses primarily on his contention that, as a matter of law, the absence of a presentence 

investigation renders his underlying sentence unlawful, and the VOP based on a violation of that 

sentence invalid. This argument is squarely presented in probationer’s motion to dismiss below, 

and the PCR petition he has filed in the civil division. In the context of this bail review hearing, 

by contrast, this argument relates to one of a host of factors in the mix, and its bearing on that 

factor is itself diluted. This Court’s review of petitioner’s argument in this context is accordingly 

necessarily oblique. In this context, probationer must do more than show that he has the better 

legal argument on this point; he has to show that the trial court abused or withheld its discretion 
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in the weight it afforded this particular argument relative to the others in the mix. Given the 

procedural posture of this appeal and the applicable standard of review, the fact that the legal 

argument presented by probationer is one that this Court has not previously addressed, and the 

fact that neither his motion to dismiss nor his PCR petition has run its course in the trial court, 

this Court would be reluctant, especially in the context of a single-justice review, to jettison the 

trial court’s thoughtful weighing of various factors based on sufficient evidence in the record on 

the ground that an untested legal argument renders those other factors irrelevant. 

To be sure, one factor in the bail-review analysis is “the weight of the evidence against 

the accused,” and another is “the nature and circumstances of the offense charged.” 13 V.S.A. 

§ 7554(b). In the ordinary application of § 7554(b), the meaning of these factors is more clear. 

In this particular VOP context, an analysis of “the weight of the evidence against the accused” 

could play out on any or all of several levels: (1) the sufficiency of the evidence supporting the 

underlying charge for lewd or lascivious conduct under 13 V.S.A. § 2602, (2) the sufficiency of 

the evidence for the alleged violation of probation, or (3) the question of law raised by 

probationer regarding whether the lack of a presentence investigation renders the underlying 

sentence unlawful. 

The trial court considered all of these layers. With respect to the first, it emphasized that 

probationer had pled no contest to the underlying charge, and had been convicted. Although he 

challenges his sentence, he has not made any arguments that would necessarily defeat his 

underlying conviction. And, as the court noted, the State’s case on the underlying charges was 

apparently sufficiently strong to induce probationer to plead no contest rather than risk trial. 

With respect to the second, the trial court noted that defendant was not cooperating with an 

agreed-upon disposition—a fact that probationer does not challenge here. The evidence that 

probationer violated the terms of his probation as set forth in the probation agreement is 

uncontested. 

At the third level, the trial court did consider probationer’s challenge to the underlying 

sentence. In fact, the court gave probationer’s argument some credence, concluding that the 

absence of a PSI “tends to undermine the strength of the State’s probation violation case.” It 

declined to resolve the question because the briefing before it on the motion to dismiss squarely 

raising the issue was incomplete. The court acknowledged that probationer raised serious 

arguments, declined to issue a definitive ruling on the arguments in the bail review setting, and 

balanced its analysis of probationer’s collateral attack on the underlying sentence with the 

evidence of guilt of the underlying crime, the evidence of guilt of the VOP, and the other 

findings relating to the statutory factors guiding the trial court’s discretion in the bail review. 

This Court similarly confines its review to the trial court’s weighing of the statutory 

factors and defers resolution of the question of law regarding the PSI to the trial court in the first 

instance. The court provided ample discussion of the facts bearing on whether bail is 

appropriate, weighing probationer’s risk of flight as discerned based on family ties, length of 

residence in the community, employment, demeanor in court, and the fact that he has been 

convicted; the risk of violence and danger to the community posed by a convicted, untreated sex 

offender who is not cooperating with an agreed-upon disposition; the strength of the State’s case 
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with respect to whether probationer violated probation; and the nature of the underlying crime as 

well as the violation. The trial court’s decision is supported by the proceedings below. 

The Court acknowledges that if probationer is right on the law—that is, if the absence of 

a PSI renders his underlying sentence, including the probation terms, unlawful, and if, as a 

consequence, the VOP charge has no basis, that factor would overwhelm the other factors 

guiding the trial court’s discretion concerning probationer’s request for bail pending a VOP 

hearing. From that perspective, this Court’s unwillingness at this juncture to immediately and 

directly engage the question of whether the underlying sentence is lawful might seem unduly 

harsh. We nonetheless decline to address the merits of probationer’s legal challenge to his 

sentence at this time for the following reason. Even if this Court jumped ahead of the trial 

court’s ruling on the motion to dismiss and the civil division’s ruling on the PCR, and even if we 

accepted probationer’s position on the law, the consequence would not likely be an order 

requiring that probationer be released on bail and/or conditions. 

In the face of a ruling voiding probationer’s underlying sentence, and the VOP based on 

that sentence, probationer would be a convicted sex offender awaiting sentencing. The trial court 

would be required to conduct virtually the same analysis it has just conducted. See 13 V.S.A. 

§ 7574 (requiring court to review conditions of release following adjudication of guilt pending 

sentencing or appeal, allowing court to terminate release or alter conditions and terms, and 

instructing court to consider factors in § 7554(b) as well as fact of conviction and defendant’s 

demeanor during trial). Although the alleged VOP charge would no longer be in the mix, all of 

the other factors relied upon by the trial court here would be present: the mixed effect of his 

community ties, the risk of flight found by the trial court, the adjudication of guilt of a very 

serious sex offense against a child accompanied by a refusal to acknowledge the conduct and 

begin appropriate treatment, and the risk to children and the community. Moreover, this Court is 

mindful of the civil division’s commitment to expedited proceedings in the PCR. For these 

reasons, the urgency of addressing probationer’s collateral challenge to his sentence at the 

earliest possible moment, without allowing development and resolution of the competing 

arguments by the trial court in the first instance, is greatly diminished. 

Affirmed. 

FOR THE COURT:

Beth Robinson, Associate Justice