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, p robationer, Jonathan Houle, pled no contest to lewd or lascivious conduct with a child, i n violation of 13 V.S.A. § 2602. The plea agreeme nt called for a sentence

of two

- to

- fifteen years, suspended with probation. The probation conditions required, among other things, that he participate i n a sex

- offender

- treatment program and that, in connection with that treatment, he acknowledge responsibility for the acts for w hich he was convicted. The

criminal d ivision accepted the plea and sentenced probationer consistent therewith.

Subsequently , the State filed a probation violation complaint, alleging that in c onnection with the required sex

- offender

- treatment program

, probationer denied his offense and stated that he was appealing his conviction. Probationer wa s arraigned on August 22, 2013 on the

violation

- of

- probation charge (VOP)

. At that time, t he court ordered that he be held without bail pending his probation r evocation 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 wi th this Court on Se ptember 17, 2013. I n the meantime, p robationer has filed a motion to dismiss the VOP complaint and has separately filed a petition in the civil d ivision for post

- conviction relief (PCR)

, neither of which is before this Court on this bai l 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).2

In the present appeal, probationer argues that the trial court failed to properly weigh the

statutory factors in its bail review. In particular, p robationer 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 b ecause 28 V.S.A. § 204a requires a presentence investigation (PSI) for individuals convicted of c ertain sex offenses, including the one for which probat ioner 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, t he 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 urge s this Court to find the trial court’s decision unsupported by the record below.

The State argues that the trial cou rt d id not abuse its discretion, but instead properly weighed the strength of the evidence in the VOP case against probationer . The Stat e 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 c ourt 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 chara cter 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 i f it is supported by the proceedings below. 13 V.S.A. § 7556(b). We employ an abuse

of

- 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 convict ed offender involves not only an assessment of the offender’s risk of flight, but also implicates correctional concerns. For a3

persuasive, albeit non

- precedential discussion of these considerations, s ee 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 r elevant factors in § 7554(b) and concluded that probationer should not be released. With respect to probationer’s family and community ties, t he court noted probationer’s extensive family and communit y ties, gainful employment, and long

standing 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 part icular, 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 h is 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 ch ildren. 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 su ch 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 c rime; 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 t hat 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 PC R petition he has filed in the civil d ivision. 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 discretion4

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 contex t 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 cle ar. 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 necessaril y defeat his underlying conviction. And, as the court noted, the S tate’s case on the underlying charges was apparently sufficiently strong to induce probationer to plead no contest rather than risk t rial. 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 a rguments 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 statut ory factors guiding the trial court’s discretion in the bail review

.

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

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

instance. The court provided amp le 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 case5

with respect to whether probationer vio lated 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 t he merits of probati oner’ s legal challenge to his sentence at this time for the following reason. E ven if this Court jumped ahead of the trial court’s ruling on the motion to dismiss and the civil d ivision’s ruling on the PCR, and even if we accepted probationer’s position o n 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 convi cted 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

sentencin g 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 accomp anied 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 c ivil d ivision’s commitment to expedited proceedings in the PCR. For these

reasons , the urge ncy 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