Sunday, December 28, 2014

Incarceration Implied

State v. Breer, 2014 VT 132 (mem.)

By Andrew Delaney

Some practitioners call a hold-without-bail order “HWOB.” The first time I saw this acronym, my reaction was “WTF is an H-wob? Do I even want to know?” As it turns out, it’s one of those family-friendly acronyms that doesn’t have its very own Urban Dictionary entry—kind of disappointing, really.

Our protagonist, Mr. Breer, “faces several misdemeanor and felony charges in five separate dockets.” He moved to review a hold-without-bail order; the trial court denied the request, and Mr. Breer appealed.

The SCOV (or more accurately a three-justice panel of the SCOV) notes that Mr. Breer has a significant criminal history, including a number of felony convictions. He’s currently charged with two counts of second-degree aggravated domestic assault, one count of second-degree unlawful restraint, and two counts of sexual assault. Along the way he picked up a couple probation violations.

The SCOV explains that Mr. Breer was held without bail because he’s charged with several potential-life-in-prison offenses and he’s also been charged with violating his probation. At any rate, Mr. Breer moved for release and to set bail, arguing that the evidence of guilt wasn’t great. The trial court held a hearing over three days, and Mr. Breer—with the assistance of standby counsel—represented himself. The trial court denied Mr. Breer’s motion in a written order, concluding that the evidence of guilt was in fact great, and continued to hold Mr. Breer without bail. So Mr. Breer, pro se, filed a notice of appeal.

Then Mr. Breer asked the trial court to appoint counsel for the bail appeal only, which the trial court did. Transcripts were ordered and a hearing was set. The hearing was continued twice, then on the morning of the hearing, defense counsel moved to withdraw because Mr. Breer wanted to represent himself. Neither Mr. Breer nor the state’s attorney objected, the motion was granted, and Mr. Breer “proceeded to argue on his own behalf.”

Mr. Breer immediately moved for a continuance, claiming that he was unaware of the procedural happenings and wasn’t properly prepared. The SCOV tabled the motion, and now denies it. The SCOV explains that Mr. Breer “has not demonstrated that he had an insufficient period of time to prepare or how he was prejudiced by proceeding.” The hearing was continued several times, and three months had passed from the initial hearing to the bail-review hearing. The SCOV further explains, “Indeed, appearing by telephone at the hearing, defendant articulated his argument with a fluency that suggested he was adequately prepared and quite capable of representing himself on the date of the hearing.”

The SCOV then turns to the merits of the bail appeal. If a defendant faces potential life imprisonment and the evidence of guilt is great, there’s no right to bail. Here the SCOV notes that there’s potential for habitual-offender sentencing enhancements (potential life sentences) along with the sexual assault charges (potential life sentences), so the potential life imprisonment is all there. There’s also no right to bail or release when a defendant is charged with violation of probation. Once again, Mr. Breer fits the criteria.

Mr. Breer’s main argument is that the standard for determining whether evidence of guilt is great is wrong. Roughly paraphrased, the standard is whether the State has substantial, admissible evidence that fairly and reasonably could convince a jury of guilt beyond a reasonable doubt. The evidence is taken in the light most favorable to the State and excludes any modifying evidence—in other words, anything the defense might want to introduce. After this determination is made, the trial court has to exercise its discretion to determine whether or not to impose bail and conditions of release. The trial court has “very broad” discretion, but its decision can’t be arbitrary.

Mr. Breer wants the SCOV to change the standard (to what is not entirely clear), but the SCOV says, “No, thanks.” Bail review is not the place to judge the State’s case.

The SCOV notes that the trial court properly determined that there was a presumption of incarceration in this case. The trial court also reviewed evidence and heard testimony, made specific required findings under the proper standard that were supported by the evidence, and basically, didn’t screw anything up.

Mr. Breer says there were less-restrictive options available and the trial court abused its discretion in denying bail. The SCOV responds that the trial court has wide discretion, expressly considered the applicable factors, and did not abuse or withhold its discretion in denying bail here.

The appeal touches on the violation of probation charges, which the SCOV notes support the hold-without-bail order (by statute), even if the trial court screwed up something with the life-imprisonment stuff—which it didn’t.

There’s an argument that a pro se defendant must be released on bail in order to properly conduct a defense that the SCOV just doesn’t buy. The SCOV notes that pretrial detention does not violate due process, and that to accept Mr. Breer’s argument would mean that any defendant could just reject appointed counsel as a never-fail-get-out-of-jail-free card. Not gonna happen.

Finally, there’s a bit about alleged violations of an entry order issued to accommodate Mr. Breer’s pro se defense while incarcerated. The SCOV simply notes that the trial court addressed it while the appeal was pending; the SCOV isn’t getting into it; and Mr. Breer can appeal it if he gets convicted.

So, the SCOV denies the motion to continue, affirms the hold-without-bail order, and says things better move along below without unnecessary delay.

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