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| The "fence" has to be intact |
By Eric Fanning
Defendant/convict Dale Byam appeals a trial court’s denial of his motion seeking credit for time served while he was under pretrial conditions of release. SCOV affirms—but let’s look at the facts of the case first.
Byam was charged with aggravated domestic assault and cruelty to a child. The Orange County Criminal Division imposed conditions of pretrial release including a 24-hour curfew (with exceptions for legal and medical appointments), and that he had to stay in Orange County. The court allowed two exceptions to his curfew. The first allowed him to leave home on Saturdays from 9:00 a.m. to 12:00 p.m. to run errands like checking his mail, going to the bank, and visiting his mother, etc. The second allowed him to visit one of his kids in Washington County.
While he was out awaiting trial, Byam was arrested in Windsor County after being caught driving with a suspended license, and the State charged him with five misdemeanors: two counts of violating conditions of release, driving with a suspended license, resisting arrest, and escape. He posted bail and the Windsor Criminal Division released him on conditions similar to the ones the Orange Criminal Division had imposed, namely a 24-hour curfew with exceptions for medical and legal appointments. The Windsor court referred his case to the Orange Court, and he ended up pleading guilty to the original charges, as well as escape, and violating his conditions of release.
Pending sentencing, the court modified his sentence to allow him to serve his curfew at either his own home or his mother’s home, and continued to allow him to leave the house from 9:00 to 12:00 on Saturdays, and to visit his kid. During his sentencing hearing, the court refused to credit Byam for any of the time he was released under the aforementioned conditions because they weren’t “comparable to confinement.”
Byam asks SCOV to reverse.
The statute at issue says that a court needs to give those convicted of crimes credit toward their sentence for days spent “in custody.” The question that SCOV has to grapple with here is just what kind of circumstances constitute being in “custody” that would make a defendant eligible for credit toward their sentence?
There is case law on this question. In the case of In re McPhee, for example, SCOV held that a defendant who was ordered to stay at an in-patient alcohol treatment facility as a condition of release was entitled to credit because “court-ordered placement at a treatment facility was sufficiently restrictive on a defendant’s liberty to qualify McPhee for credit.” So, according to McPhee, you don’t actually have to be in jail or otherwise under the physical control of the Department of Corrections (DOC) to receive sentencing credit. Good first step. Moving on.
In the second relevant case, State v. Platt, SCOV ruled that the defendant was not entitled to credit for time served after he was required to remain in his county of residence, to stay at his house between 11:00 p.m. and 6:00 a.m., and to check in with his probation officers three times a week. SCOV distinguished that case from McPhee on the basis that Platt was not actually in “the custody of any other person and was not in an institutional setting.”
SCOV re-examines the third case on point, State v. Kenvin, and sees some serious problems. In that case, SCOV created a new rule that defendants are entitled to credit for time spent on pretrial conditions of release when those conditions are “sufficiently onerous” to be “akin in incarceration in an institutional setting.” Upon reflection, SCOV concludes that this rule is way too vague, and can lead to disparity in treatment for similarly situated defendants (I recommend reading the opinion if you want a couple examples).
The other problem with the Kenvin rule is that it could lead to credit for time served even when the defendant was not complying with the conditions of release. Think about it—if you’re required by the State to stay in, say, Windham County, but you decide you wanna go pig out at Parker Pie Company (shout-out to Vermont’s best pizza—which is in Orleans County incidentally), you can make that trip and, assuming you don’t do anything stupid, the State will be none the wiser. More importantly, you can do this over and over again and get the same credit as someone who’s actually confined in an institution.
SCOV says this practical result is way too unfair to justify leaving the rule as it is—and so, in effect, overrules Kenvin and lays out a new rule: “A defendant who is released pretrial under a curfew established by conditions of release and who is later sentenced to jail time is not entitled to credit… for the time spent on curfew under conditions of release. A defendant is entitled to credit when the court orders the defendant released pursuant to the statutory home detention program… or the electronic monitoring program.”
SCOV says that the home-detention program and electronic-monitoring program fall within the rule because, in part, that’s what the Legislature intended, but also, both programs keep the defendant sufficiently under the DOC’s control as to count as being “in custody.” Under the home-detention program, a defendant is subject to surveillance and electronic monitoring to ensure that they remain in their home. Under the electronic-monitoring program, a defendant is subject to “24-hours-a-day, seven-days-a-week electronic monitoring with supervision and immediate response.” Both of these programs create conditions that essentially keep the defendant under the physical control of the DOC.
So anyway, even though Kenvin was decided only 5 years ago, its holding regarding credit for time served is overruled, and SCOV rules that you can’t get credit for time served under curfew unless you’re subject to statutory home detention or electronic monitoring. Byam’s curfew doesn’t meet these conditions, and so he’s out of luck.
The statute at issue says that a court needs to give those convicted of crimes credit toward their sentence for days spent “in custody.” The question that SCOV has to grapple with here is just what kind of circumstances constitute being in “custody” that would make a defendant eligible for credit toward their sentence?
There is case law on this question. In the case of In re McPhee, for example, SCOV held that a defendant who was ordered to stay at an in-patient alcohol treatment facility as a condition of release was entitled to credit because “court-ordered placement at a treatment facility was sufficiently restrictive on a defendant’s liberty to qualify McPhee for credit.” So, according to McPhee, you don’t actually have to be in jail or otherwise under the physical control of the Department of Corrections (DOC) to receive sentencing credit. Good first step. Moving on.
In the second relevant case, State v. Platt, SCOV ruled that the defendant was not entitled to credit for time served after he was required to remain in his county of residence, to stay at his house between 11:00 p.m. and 6:00 a.m., and to check in with his probation officers three times a week. SCOV distinguished that case from McPhee on the basis that Platt was not actually in “the custody of any other person and was not in an institutional setting.”
SCOV re-examines the third case on point, State v. Kenvin, and sees some serious problems. In that case, SCOV created a new rule that defendants are entitled to credit for time spent on pretrial conditions of release when those conditions are “sufficiently onerous” to be “akin in incarceration in an institutional setting.” Upon reflection, SCOV concludes that this rule is way too vague, and can lead to disparity in treatment for similarly situated defendants (I recommend reading the opinion if you want a couple examples).
The other problem with the Kenvin rule is that it could lead to credit for time served even when the defendant was not complying with the conditions of release. Think about it—if you’re required by the State to stay in, say, Windham County, but you decide you wanna go pig out at Parker Pie Company (shout-out to Vermont’s best pizza—which is in Orleans County incidentally), you can make that trip and, assuming you don’t do anything stupid, the State will be none the wiser. More importantly, you can do this over and over again and get the same credit as someone who’s actually confined in an institution.
SCOV says this practical result is way too unfair to justify leaving the rule as it is—and so, in effect, overrules Kenvin and lays out a new rule: “A defendant who is released pretrial under a curfew established by conditions of release and who is later sentenced to jail time is not entitled to credit… for the time spent on curfew under conditions of release. A defendant is entitled to credit when the court orders the defendant released pursuant to the statutory home detention program… or the electronic monitoring program.”
SCOV says that the home-detention program and electronic-monitoring program fall within the rule because, in part, that’s what the Legislature intended, but also, both programs keep the defendant sufficiently under the DOC’s control as to count as being “in custody.” Under the home-detention program, a defendant is subject to surveillance and electronic monitoring to ensure that they remain in their home. Under the electronic-monitoring program, a defendant is subject to “24-hours-a-day, seven-days-a-week electronic monitoring with supervision and immediate response.” Both of these programs create conditions that essentially keep the defendant under the physical control of the DOC.
So anyway, even though Kenvin was decided only 5 years ago, its holding regarding credit for time served is overruled, and SCOV rules that you can’t get credit for time served under curfew unless you’re subject to statutory home detention or electronic monitoring. Byam’s curfew doesn’t meet these conditions, and so he’s out of luck.
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