State v. Campbell, 2014 VT 123 (mem.)
By Andrew Delaney
Last round, Mr. Campbell got the SCOV to order an immediate bail-review hearing. This round, Mr. Campbell doesn’t fare so well.
As you may or may not recall, Mr. Campbell was charged with violating his probation. The underlying charge was violation of an abuse prevention order. When, months later, a different complainant applied for and was granted an abuse-prevention order, Mr. Campbell was charged with violating his probation. He was arraigned and ordered held without bail, which means he ended up in some state-subsidized Hotel California style housing. When he asked to review bail, the trial court just said that it had explained why he was going to be held without bail at arraignment and that was that.
So he appealed, and if you’re a regular reader, you know what happened: the SCOV ordered an immediate bail-review hearing. Here’s a link for you slackers.
So, the trial court held the bail-review hearing. Not too surprisingly, the trial court concluded that Mr. Campbell should be held without bail based on the nature of the offense, the potential punishment, and the type of conduct alleged. Mr. Campbell appealed.
The SCOV explains: “A defendant charged with violating probation conditions has no constitutional or statutory right to bail or release if the defendant is on probation for a listed crime.” And violation of an abuse-prevention order is a listed crime. Whether or not to grant bail is at the trial court’s discretion, and the SCOV reviews only for abuse of that discretion. When there’s no constitutional right to bail—such as here—then incarceration is the norm rather than release. This means the trial court has “extremely broad” discretion.
Mr. Campbell argues that the trial court should’ve let him out when it found he wasn’t a flight risk and that the trial court therefore abused its discretion. The State basically says that’s not how it works—in this situation, the burden is on Mr. Campbell to demonstrate why he should be released.
The SCOV notes that there’s no clear statutory framework that applies to probationers who’ve been charged with violating their probation. Thus, while the trial court must consider the factors applicable to imposing conditions (as with most criminal cases), the first part of the statute—that presumes release—doesn’t apply to a probationer charged with a listed crime because the presumption has shifted to incarceration.
Here, the SCOV reasons that the trial court “considered the relevant statutory factors.” There was testimony from Mr. Campbell’s mom on how him being released to her custody might look. But the trial court also looked at the pattern of conduct and potential risk to the public and concluded the risk was high. The SCOV concludes, “Because the court’s discretion here is extremely broad, we do not believe that its decision to deny bail based on defendant’s threat to the public is an abuse of that discretion. The court is required only to consider the factors, which it did.”
So that’s that, kids. If you’re on probation, you don’t want to violate it—or even be accused of violating it. The consequences are pretty dire and the tables are turned. It seems to me to be a lose-lose proposition.