State v. Gardner

State v. Gardner  (97-520); 167 Vt. 600; 709 A.2d 600

[Filed 15-Jan-1998]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-520

                             JANUARY TERM, 1998


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 3, Franklin Circuit
Arnold Richard Gardner          }
                                }     DOCKET NO. 1096-9-97 Frcr


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

       Defendant Arnold Gardner appeals a Franklin District Court order that
  he be held without bail.  Defendant is charged with (1) driving under the
  influence, third offense, under 23 V.S.A. § 1210(d); and (2) being a
  "habitual criminal" under 13 V.S.A. § 11, a charge punishable by life
  imprisonment.  The district court granted the State's motion to hold
  defendant without bail under 13 V.S.A. § 7553 and Vt. Const. ch. II, § 40
  (person charged with offense punishable by life imprisonment may be held
  without bail when the evidence of guilt is great).  We review the district
  court's decision under V.R.A.P. 9(b)(2) and affirm.

       There is no constitutional right to bail for offenses punishable by
  life imprisonment where the evidence of guilt is great.  See State v.
  Blackmer, 160 Vt. 451, 453-54, 631 A.2d 1134, 1136 (1993).  Defendant does
  not dispute that evidence of his guilt is great.  Rather, he argues that
  the State may not charge him as a "habitual criminal" under 13 V.S.A. § 11
  because to do so amounts to a "double enhancement" of his prior convictions
  for DUI.  He argues that the specific enhanced penalty for third and
  subsequent DUI offenses contained in 23 V.S.A. § 1210(d) should control the
  general enhanced penalty for commission of a fourth or subsequent felony
  under 13 V.S.A. § 11.  Concluding that he does not properly face a charge
  punishable by life, defendant contends he may not be held without bail
  under 13 V.S.A. § 7553.

       We do not agree with defendant's argument that the two statutes work a
  "double enhancement" of defendant's prior convictions for DUI.  The five
  year prison sentence permitted under 23 V.S.A. § 1210(d) serves primarily
  to designate third and subsequent DUI offenses as felonies.  See 13 V.S.A.
  § 1 (felony defined as any offense punishable by more than two years
  imprisonment).  Here the relevant inquiry is whether the record below
  sufficiently supports the trial court's finding that (1) defendant had at
  least two prior DUI convictions and is within the ambit of 23 V.S.A. §
  1210(d), and (2) defendant had at least three prior felony convictions and
  is within the ambit of 13 V.S.A. § 11.  Each finding is supported by the
  record and therefore the motion to hold defendant without bail pursuant to
  13 V.S.A. § 7553 was properly before the court.

       In Blackmer, 160 Vt. at 459-60, 631 A.2d  at 1140 we also specified
  three due process requirements in a case where bail is denied: (1) bail
  cannot be denied in order to inflict punishment; (2) pretrial detention
  cannot be excessive in relation to the regulatory goal; and (3) the
  interests served by the detention must be legitimate and compelling. 
  Defendant does not assert that he is being improperly punished, or that
  protecting public safety is not a compelling interest.  Instead, he argues
  that the district court failed to establish sufficiently defendant's

 

  threat to the safety of others.  To meet the requirements of Blackmer, the
  district court was required to base its finding on "substantial, admissible
  evidence."  160 Vt. at 454, 631 A.2d  at 1136.  The district court
  considered evidence that defendant has at least eleven prior DUI
  convictions and found "by clear and convincing evidence that defendant's
  release on bail would present a substantial threat of physical danger,
  violence, and harm to other persons using the public highways."  In so
  doing, the district court satisfied a higher standard of proof than
  required under Blackmer.  The record amply supports the court's finding.

       Finally, in Blackmer we stated: "When the need for conditions [of
  release] is viewed in light of the possible punishment of life
  imprisonment, it is entirely appropriate for the court to deny bail unless
  it is fully convinced that the defendant will abide by the conditions that
  would be imposed if defendant were released."  160 Vt. at 459, 631 A.2d  at
  1139 (emphasis added). Defendant contends he has done well in the past at
  refraining from drinking and driving and would pose no threat of harm to
  society if placed in a residential treatment facility or given over to the
  care of family members or friends.  The district court considered
  defendant's large number of prior DUI convictions and viewed with "the
  greatest degree of skepticism" the ability of defendant's family to control
  his behavior.  The district court also considered that defendant's
  possibility of facing life in prison brought with it the risk of
  defendant's flight.  The court concluded it was "far from `fully
  convinced'" that any conditions could overcome the great risks posed by
  defendant's release.  The record supports that conclusion.

       Affirmed.



                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice


                              John A. Dooley, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice