State v. Hance

Annotate this Case
State v. Hance (2006-255); 180 Vt. 357; 910 A.2d 874

2006 VT 97

[Filed 08-Sep-2006]


       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,
  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.


                                 2006 VT 97

                                No. 2006-255


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 2, Rutland Circuit

  Henry J. Hance, Jr.                            June Term, 2006


  M. Patricia Zimmerman, J.

  Marc D. Brierre, Deputy State's Attorney, Rutland, for Plaintiff-Appellee.
    
  Matthew F. Valerio, Defender General, and Henry Hinton and Kelly Green,
    Appellate Attorneys, Montpelier, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.


       ¶  1.  SKOGLUND, J.  Defendant Henry J. Hance, Jr. appeals the bail
  imposed by the district court.  The court required defendant to post
  $60,000 in cash without an option to have that amount guaranteed by a
  third-party surety.  While a cash-only bail is arguably authorized by 13
  V.S.A. § 7554(a)(1)(F), defendant claims that the statute conflicts with
  Chapter II, § 40 of the Vermont Constitution.  That section provides that
  "[a]ll persons shall be bailable by sufficient sureties." (FN1)  We agree
  that, to the extent § 7554(a)(1)(F) permits imposition of cash-only bail,
  it violates our Constitution.  Accordingly, we reverse and remand for
  further proceedings.

                                     I.
   
       ¶  2.  The following facts are undisputed.  Defendant is charged
  with the felonies of Driving Under the Influence of Intoxicants (DUI), 23
  V.S.A. § 1201, 8th Offense, id. § 1210, and Possession of Cocaine in an
  amount of 2.5 grams or more, 18 V.S.A. §§ 4205, 4231(a)(2), and the
  misdemeanor of Driving with License Suspended.  23 V.S.A. § 674.  Defendant
  fled to South Carolina in late 2005 prior to his arraignment on these
  charges, leaving his mother and a teenage son behind in Vermont.  Defendant
  avoided capture for several months before being arrested in South Carolina. 
  After his arrest, defendant refused to waive extradition or return to
  Vermont until he learned that an application for a governor's warrant under
  13 V.S.A. § 4962 was pending before the Governor.  Defendant returned to
  Vermont and was arraigned on May 11, 2006.

       ¶  3.  At arraignment, defendant did not oppose the State's request
  for cash bail in the amount of $60,000, but reserved the right to file for
  modification of bail.  Defendant moved to review bail, seeking to modify
  the cash bail requirement to permit defendant to post 10% of the $60,000 in
  cash and the remainder with sufficient sureties.  The State opposed
  defendant's request.  Defendant argued that the imposition of a cash-only
  bail violated his rights under Chapter II, §40 of the Vermont Constitution.  
   
       ¶  4.  At the bail review hearing, defendant's mother testified
  that, while she was willing and able to post 10% surety with her property
  as a guarantee, she could not post $60,000 in cash.   The trial court found
  "ample evidence" to conclude that defendant was a flight risk and that
  there were "sufficient facts to justify . . . cash bail."  In so holding,
  the trial court considered defendant's significant history of criminal
  convictions.  Defendant has been convicted of DUI eight times since 1987,
  five times in Vermont, twice in New York, and once in Pennsylvania. 
  Defendant's multiple DUI convictions led the Vermont Commissioner of Motor
  Vehicles to suspend his license for life in 1994.  23 V.S.A. § 1208(b). 
  Defendant has been convicted five times on drug charges since 1988. 
  Defendant's history includes two assault convictions, including one for
  aggravated assault.  His criminal record also contains convictions for car
  theft, arson, breaking and entering, grand larceny, and four parole
  violations.


       ¶  5.  In imposing bail, the court noted defendant's long criminal
  record and expressed particular concern about defendant's prior failure to
  appear, including his flight to South Carolina and five-month absence
  there.  Citing 13 V.S.A. § 7554(a)(1)(C), (D), (FN2) the court concluded
  that it had the authority to impose a cash-only condition, noting that the
  Vermont bail statutes refer to "cash or surety."  The court made no finding
  that the 10% cash and the house offered to secure defendant's appearance
  was insufficient or unsatisfactory.  The court was careful, however, to
  tell defendant that cash "bail is not being imposed to ensure your
  incarceration, Mr. Hance.  It is being imposed to ensure your appearance .
  . . ."  The court denied defendant's motion to modify the $60,000 cash bail
  requirement.  Defendant filed a timely notice of appeal.

                                     II.
   
       ¶  6.  On appeal, defendant argues that the trial court's $60,000
  cash-only bail condition violates Chapter II, § 40 of the Vermont
  Constitution, which provides that "[a]ll persons shall be bailable by
  sufficient sureties." (FN3)  Defendant asserts that the order imposing
  cash-only bail must be reversed and that he should be released upon posting
  10% of the bail amount. (FN4)  The State counters that 13 V.S.A. §
  7554(a)(1)(F) explicitly permits the district court to impose cash-only
  bail.  Ordinarily, we review a district court's decision regarding the type
  and amount of bail for abuse of discretion.  State v. Turnbaugh, 174 Vt.
  532, 534-35, 811 A.2d 662, 666 (2002).  Here, however, we must determine
  whether cash-only bail, as permitted by §7554(a)(1)(F) is constitutional
  under Chapter II, §40.  For this task, our review is de novo.  State v.
  Roya, 167 Vt. 594, 595, 708 A.2d 908, 909 (1998).  Further, "[w]hen
  considering the constitutionality of a statute we begin by presuming that
  the legislative enactment is constitutional."  Glidden v. Conley, 2003 VT
  12, ¶ 11, 175 Vt. 111, 820 A.2d 197.  Defendant carries the heavy burden of
  rebutting this presumption.

                                     A.

       ¶  7.  Under Vermont's bail statutes, if a district court determines
  that a defendant's personal recognizance or unsecured appearance bond is
  insufficient to assure appearance at trial,  the court may impose "the
  least restrictive combination" of various enumerated conditions that will
  "reasonably assure . . . appearance."  13 V.S.A. § 7554(a)(1).  These
  conditions include placing the defendant in the custody of a designated
  individual, placing restrictions on travel, requiring "execution of a
  secured appearance bond" and requiring the defendant to post not more than
  10% of the bond amount, and the execution of a surety bond with sufficient
  solvent sureties.  Id.  In 2002, the Legislature amended the statute to add
  another possible condition, permitting a court to "[r]equire the deposit
  with the clerk of court of cash bail in a specified amount."  2001, No. 124
  (Adj. Sess.), § 2 (codified as most recently amended at 13 V.S.A. §
  7554(a)(1)(F)).  Thus, based on the plain language of the statute, the
  Legislature intended to provide courts with the option of requiring
  cash-only bail.

       ¶  8.  The distinction between a secured appearance bond and cash-only
  bail is significant from the standpoint of a defendant's liberty interests. 
  In imposing cash-only bail, the district court in this case refused to
  consider the offered surety arrangement and required defendant to post the
  entire bail amount or be subject to pre-trial confinement.  By contrast,
  when a court requires only a secured appearance bond, a defendant can avoid
  pre-trial confinement without posting cash or by posting a small percentage
  of the bail amount. 
   
       ¶  9.  Both an appearance bond with sufficient sureties and
  cash-only bail serve the court's legitimate purpose of securing the
  defendant's appearance at trial.  The posting of a secured bond fully
  protects the court's interest in having the defendant appear because the
  third party  surety (a family member, friend, or commercial bail bondsman)
  has both a strong incentive to guarantee the defendant's appearance, and
  the ability to ensure appearance.  If the defendant fails to appear, the
  surety must surrender the full bail amount to the court.  Thus, defendant
  has a monetary incentive to comply with the court's orders to appear,
  whether the money will come from defendant himself or his surety. 

                                     B.

       ¶  10.  The question before us is whether the provision enacted by the
  Legislature in 2002, allowing imposition of cash-only bail, is compatible
  with our Constitution's requirements concerning bail.  We approach
  interpretation of the Constitution differently than we do the
  interpretation of statutes.  Chittenden Town Sch. Dist. v. Dep't of Educ.,
  169 Vt. 310, 326, 738 A.2d 539, 551 (1999).  We have found an understanding
  of the constitutional provision's historical context to be a most helpful
  tool for determining the meaning of the provision, and we have often relied
  on that context to illuminate the meaning of our Constitution.  See 
  Chittenden Town Sch. Dist., 169 Vt. at 328, 738 A.2d  at 552; Brigham v.
  State, 166 Vt. 246, 257, 692 A.2d 384, 391 (1997); State v. Wood, 148 Vt.
  479, 482, 536 A.2d 902, 904 (1987).  The history of bail practices is
  particularly relevant to our inquiry today.  That history indicates that
  constitutional bail provisions like § 40 serve not only to ensure a
  defendant's future appearance, but also to protect the defendant from
  pretrial detention by providing a measure of flexibility in satisfying the
  court that he will appear as required.
   
       ¶  11.  The concept of bail originated in medieval England, though its
  precise origins are uncertain.  See Paul Lermack, The Law of Recognizances
  in Colonial Pennsylvania, 50 Temp. L.Q. 475, 475-76 (1977) (suggesting that
  the earliest uses of bail might have been to ransom hostages captured in
  battle, to bribe jailors, or to circumvent incompetent jailors by shifting
  responsibility for appearance to private parties).  The use of bail in
  England evolved out of necessity when a shortage of traveling magistrates
  resulted in accused persons being jailed for a lengthy period before trial. 
  Id.  Bail enabled feudal sheriffs to release prisoners from local jails
  while they awaited trial, thus avoiding the costs of confinement while
  continuing to ensure appearance.  Note, Bail: An Ancient Practice
  Reexamined, 70 Yale L.J. 966, 966 (1961).

       ¶  12.  In addition, bail developed "as a pretrial complement to a
  system of money fines or 'bots' designed to compensate private grievances." 
  June Carbone, Seeing Through the Emperor's New Clothes: Rediscovery of
  Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517,
  519 (1983).  This system allowed the accused to be released into the
  custody of a personal surety who would then be responsible for the
  accused's appearance at trial.  A personal surety was responsible for
  "guarantee[ing] both the appearance of the accused at trial and payment of
  the bot upon conviction."  Carbone, supra, at 520; see also 2 Nancy
  Hollander et al., Wharton's Criminal Procedure § 9:2, at 9-3 (14th ed.
  2006) (if surety "could not produce the accused when demanded, that person
  would have to surrender himself as a substitute for the accused or hand
  over a specified amount of property or money").  Thus, the personal surety
  had a strong incentive to ensure the accused would appear.  Carbone, supra,
  at 520.
   
       ¶  13.  The "bot" system gave way as England developed a criminal
  justice system in which corporal punishment replaced monetary fines for
  most criminal offenses.  Id. at 521-22.  That development restricted the
  availability of bail, since it became difficult to calculate what bail
  amount would prevent flight by a person faced with corporal punishment. 
  Id. at 522.  In addition, a continued shortage of traveling magistrates
  contributed to "growing delays between accusation and trial [thus]
  increas[ing] the importance of pretrial release and the opportunities for
  abuse and corruption."  Id.  To address these problems, the English
  Parliament enacted the Statute of Westminster in 1275, which attempted to
  standardize bail practices and provide for uniform administration.  Id. at
  523; Note, Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 966
  (1961).

       ¶  14.  The Statute of Westminster accompanied English colonists to
  America, but it did not survive long in the new world.  Carbone, supra, at
  529.  The colonists dispensed with the complicated categories of bailable
  offenses in the English law, adopting much simpler and more liberal bail
  provisions. Id. at 530-31.  The Quakers who founded Pennsylvania sought to
  de-emphasize the English common law, remembering it as an "instrument of
  persecution" in England.  Lermack, supra, at 477.  Toward that end,
  Pennsylvania's founders granted a broader right to bail by adopting the
  Great Law of 1682, which provided that "all Prisoners shall be Bailable by
  Sufficient Sureties, unless for capital Offenses, where proof is evident or
  the presumption great."  Carbone, supra, at 531.  Thus, in stark contrast
  to the English common law, the Great Law of 1682 made nearly all persons
  "bailable"-that is, eligible for pretrial release under proper conditions,
  including the promise by a surety to guarantee the defendant's appearance. 
  The language in the Great Law of 1682 was incorporated into the
  Pennsylvania Constitution of 1776, and the Vermont Constitution of 1777. 
  Pa. Const. ch. ii, § 28 (1776); Vt. Const. ch. II, § 25 (1777).  

       ¶  15.  American courts used the personal surety system until at least
  the nineteenth century,  but as society evolved, it became increasingly
  difficult to find reliable people known by both the courts and the accused. 
  As a result the personal surety system evolved into the commercial bondsman
  system that exists today.  Hollander, supra, at 9-4.  Nonetheless, the
  operative principle is the same: a surety facilitates the possibility of
  pretrial release, because he or she has a financial stake in making sure
  the defendant appears at trial.

                                     C.
   
       ¶  16.  This history demonstrates that "[b]ail acts as a reconciling
  mechanism to accommodate both the defendant's interest in pretrial liberty
  and society's interest in ensuring the defendant's presence at trial." 
  Donald B. Verrilli, Jr., Note, The Eighth Amendment and the Right to Bail:
  Historical Perspectives, 82 Colum. L. Rev. 328, 329-30 (1982); see also
  Bandy v. United States, 81 S. Ct. 197, 197 (1960) (mem.) (noting that bail
  is device that reconciles the "right to freedom during trial and pending
  judicial review . . . with the possibility that the defendant may flee or
  hide himself").  In light of this history and the history of the
  "sufficient sureties" clause itself, it is apparent that clause is
  primarily aimed at protecting a defendant's liberty interest and,
  concomitantly, serving the court's interest in having the defendant appear
  at trial.  
   
       ¶  17.  While we have not previously interpreted the meaning of the
  phrase "sufficient sureties," we have consistently held that § 40 precludes
  using bail for the purpose of detaining the accused (as opposed to ensuring
  his or her appearance).  We have recognized that pretrial detention
  "undermines the presumption of innocence by 'depriv[ing] a defendant of a
  fundamental value, the right to liberty, without an adjudication of
  guilt.'" State v. Sauve, 159 Vt. 566, 573, 621 A.2d 1296, 1300 (1993)
  (quoting State v. Duff, 151 Vt. 433, 440, 563 A.2d 258, 263 (1989)
  (alteration in original)).  "Our constitutional values require that liberty
  is and must remain the norm . . . ."  Id. at 573, 621 A.2d at 1300-01; see
  also State v. Mecier, 136 Vt. 336, 338, 388 A.2d 435, 437 (1978) (holding
  that § 40 precludes preventive detention); State v. Cyr, 134 Vt. 460, 462,
  365 A.2d 969, 971 (1976) (holding that bail cannot be used solely as a
  device for protecting the public).  The bail statutes themselves assume
  that a defendant will be released on personal recognizance or an unsecured
  appearance bond unless a finding is made that such measures will be
  insufficient.  Our interpretation of the "sufficient sureties" clause
  should be consistent with our longstanding recognition that bail cannot be
  used for the purpose of pretrial detention.  To construe the "sufficient
  sureties" clause as permitting cash-only bail would increase government
  power to engage in pre-trial confinement, a result which cannot be
  reconciled with the history of the "sufficient sureties" clause or our own
  cases discussing bail, in which we have recognized the threat to individual
  liberty inherent in pretrial detention.

                                     D.

       ¶  18.  Courts in other jurisdictions with constitutional bail
  provisions similar to § 40 have reached differing conclusions on the
  constitutionality of cash-only bail.  Some have construed their
  constitutions to permit cash-only bail. See, e.g., Ex parte Singleton, 902 So. 2d 132 (Ala. Crim. App. 2004); Fragoso v. Fell, 111 P.3d 1027 (Ariz.
  2005); State v. Briggs, 666 N.W.2d 573 (Iowa 2003).  Others have held that
  cash-only bail violates their respective "sufficient sureties" clauses.
  See, e.g., State v. Brooks, 604 N.W.2d 345 (Minn. 2000); State v.
  Rodriguez, 628 P.2d 280 (Mont. 1981); Smith v. Leis, 106 Ohio St. 3d 309,
  2005-Ohio-5125, 835 N.E.2d 5; Lewis Bail Bond Co. v. Gen. Sessions Court of
  Madison County, 1997 WL 711137 (Tenn. Ct. App., Nov. 12, 1997).  We are
  persuaded by the latter line of cases.

       ¶  19.  For example, in the context of examining the history of bail
  practices, the Minnesota Supreme Court held that Article 1, § 7 of the
  Minnesota Constitution, which provides, "[a]ll persons before conviction
  shall be bailable by sufficient sureties," precluded imposition of
  cash-only bail. Brooks, 604 N.W.2d  at 350.  In so holding, the court
  emphasized that the "broader purpose" of the "sufficient sureties" clause
  is to limit "government power to detain an accused prior to trial."  Id. 
  The court noted that the term "surety," when interpreted in light of its
  definition, its "historical usage," Minnesota case law, and the decisions
  of other courts, encompassed a broad array of options and forms of
  security.  Id. at 352-53.  Therefore, it was improper to interpret the
  constitutional bail clause as allowing the court to limit an accused to
  cash-only bail.  Id.
   
       ¶  20.  Similarly, in State ex rel. Jones v. Hendon, 609 N.E.2d 541
  (Ohio 1993), the Supreme Court of Ohio held that cash-only bail violates
  the Ohio Constitution, which, like the Vermont Constitution, states that
  "[a]ll persons shall be bailable by sufficient sureties."  Ohio Const. art.
  I, § 9.  The court reasoned that "the only apparent purpose in requiring a
  'cash only' bond to the exclusion of . . . other forms . . . is to restrict
  the accused's access to a surety and, thus, to detain the accused in
  violation of Section 9, Article I."  Jones, 609 N.E.2d  at 544.  Following
  its decision in Jones, the Supreme Court of Ohio was called upon to
  interpret § 9 again after a constitutional amendment which explicitly
  recognized the discretion enjoyed by the trial courts in setting bail. 
  Specifically, the 1998 amendment provided that "[w]here a person is charged
  with any offense for which the person may be incarcerated, the court may
  determine at any time the type, amount, and conditions of bail."  Ohio
  Const. art. I, § 9.  Even in the face of that provision, however, the court
  concluded "that the Ohio constitution still prohibits cash-only bail,"
  reasoning that, even when the trial court's discretion is constitutionally
  recognized, such discretion cannot "violate an accused's access to a
  surety."  Smith, 2005-Ohio-5125, at ¶ 58-60.

       ¶  21.  We are not persuaded by the reasoning of those courts that
  have permitted cash-only bail.  For example, in Briggs, the Iowa Supreme
  Court analyzed Iowa's constitutional provision: "[a]ll persons shall,
  before conviction, be bailable, by sufficient sureties, except for capital
  offences where the proof is evident, or the presumption great."  Iowa
  Const. art. 1, § 12.   Briggs, 666 N.W.2d  at 583-84.  In concluding that
  cash-only bail was permissible, the court asked whether "the sufficient
  sureties clause extends an unfettered right to . . . commercial bail
  bondsmen," drawing a distinction between that role and the function of
  "traditional form[s] of surety."  Id. at 583.  In so doing, Briggs gave
  short shrift to the role of bail via a surety in preventing excesses in
  pretrial confinement.  See Joseph Buro, Note, Bail-Defining Sufficient
  Sureties: The Constitutionality of Cash-Only Bail. State v. Briggs, 666 N.W.2d 573 (Iowa 2003), 35 Rutgers L.J. 1407, 1408 (2004) (concluding that
  the Briggs court failed to "give substantial weight to the historical
  development of bail"). (FN5)  In Fragoso, another case permitting cash-only
  bail, the Arizona Supreme Court wrote: "As article II [of the Arizona
  Constitution] now makes clear, the primary, if not paramount, purpose of
  bail under the Arizona Constitution is to guarantee a defendant's
  appearance in court while protecting victims, witnesses, and the public." 
  111 P.3d  at 1034.  Unlike Arizona's Constitution, our Constitution makes
  clear that a defendant, who is after all presumed innocent, has liberty
  interests that must be balanced against the court's interest in securing
  his or her appearance.

                                    III.

       ¶  22.  Our Constitution provides that "[a]ll persons shall be
  bailable by sufficient sureties."  Vt. Const. ch. II, § 40.  To permit
  imposition of cash-only bail would impermissibly restrict an accused's
  ability to negotiate with a surety to avoid pretrial confinement upon a
  promise of appearance. When viewed in its historical context, it is
  apparent that the term "surety" in Vermont's Constitution refers to a third
  party who guarantees the accused's appearance in exchange for accepting the
  substantial financial obligation that will be imposed should the accused
  fail to appear.  Thus, the intervention of a surety is a critical mechanism
  for protecting the rights of the accused as well as the interests of the
  courts. 

       ¶  23.  Denying a defendant the right to be bailable by sufficient
  surety, ignores the need to reconcile the "right to freedom during trial
  and pending judicial review" with the legitimate interest of having
  defendant appear, and violates the person's rights under our Constitution. 
  Bandy, 81 S.Ct at 197.  In a case such as this one, the imposition of
  cash-only bail is, in effect, a denial of bail under circumstances that are
  not constitutionally permissible. 
   
       ¶  24.  This decision should not be understood to deny the trial
  judge, who oversees the bail process, the discretion to determine the
  sufficiency of the surety arrangements.  As we held in State v. Roessell,
  "the option of 'a bail bond with sufficient solvent sureties, or the
  deposit of cash in lieu thereof', 13 V.S.A. § 7554(a)(4), is an option
  belonging to the defendant, and the court setting bail may not make that
  choice except as with regard to the sufficiency of the sureties."  132 Vt.
  634, 636, 328 A.2d 118, 119 (1974).  If the sureties proposed are not
  sufficient, not actually available, not adequately guaranteed, or are in
  any other way deficient, the court can reject them.  They must be
  sufficient to accomplish the court's legitimate goal of ensuring the
  defendant's appearance. 

       ¶  25.  To the extent 13 V.S.A. § 7554(a)(1)(F) permits imposition of
  a cash-only bond, it is unconstitutional.  Accordingly, we reverse the
  decision of the district court and remand this matter for further
  proceedings consistent with this opinion. 

       Reversed and remanded.  Defendant shall remain in custody pending the
  court's reconsideration of his remanded motion for bail review.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Because the appeal presents a constitutional issue of first impression,
  it has been referred to the full Court pursuant to 13 V.S.A. § 7556(b).

FN2.  The district court apparently did not note the renumbering and
  amendment of § 7554 in 2001.  It is clear, nonetheless, that the court
  concluded that the statute authorized cash-only bail.

FN3.  Section 40 provides three exceptions to this rule; none of the
  exceptions applies to this case.

FN4.  Our decision is limited to determining whether a requirement of
  cash-only bail is constitutional.

FN5.  The decision is internally confusing as well.  At one point, the court
  states "if the accused shows that the bail determination absolutely bars
  his or her utilization of a surety of some form, a court is
  constitutionally bound to accommodate the accused's predicament."  Briggs,
  666 N.W.2d  at 583.  It is difficult to reconcile this statement with the
  court's ultimate holding.


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