ENTRY ORDER

                          SUPREME COURT DOCKET NO. 2016-423

                                    JANUARY TERM, 2017

 State of Vermont                                  }    APPEALED FROM:
                                                   }
                                                   }
    v.                                             }    Superior Court, Chittenden Unit,
                                                   }    Criminal Division
 Matthew L. Fidler                                 }
                                                   }    DOCKET NO. 4550-12-15 Cncr
                                                   }
                                                        Trial Judge: Dennis R. Pearson

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

        Defendant Matthew Fidler appeals the trial court’s November 23, 2016 order modifying
defendant’s conditions of release. The order changed two aspects of defendant’s conditions: first,
it reduced defendant’s bail from $75,000 to $25,000, cash or surety bond; second, it added
Condition Four, which prohibits defendant from being released into the custody of some person or
organization that has not been approved in advance by the court. Although the reduction in bail is
supported by the record below, the matter is remanded for the trial court to address inconsistencies
resulting from the newly imposed condition.

       On December 8, 2015, defendant was arrested and arraigned on a series of charges
stemming from an incident earlier that night. The charges included kidnapping for a ransom, 13
V.S.A. § 2405(a)(1)(A), reckless endangerment, 13 V.S.A. § 1025, and assault and robbery, 13
V.S.A. § 608(a). Because of the kidnapping charge, the State originally sought to hold defendant
without bail, arguing pursuant to 13 V.S.A. § 7553 that defendant had been charged with an offense
punishable by life imprisonment and that the evidence of guilt was great.

        In a December 30, 2015 order, the court determined that defendant had no right to bail
under 13 V.S.A. § 7553. For the purposes of the order, the court found that defendant and a
codefendant lured the alleged victim into a car with the promise of sex for money. Once in the
car, defendant held a knife on the victim and kept the victim in the car until the two defendants
located an automated teller machine (ATM). At the ATM, defendant forced the victim to withdraw
money at knifepoint. The whole encounter lasted approximately one and a half hours.

        Based on these preliminary findings, the court concluded that substantial, admissible
evidence existed that fairly and reasonably established defendant’s guilt beyond a reasonable
doubt; thus, defendant had no right to bail. However, the court exercised its discretion and imposed
bail and conditions of release under 13 V.S.A. § 7554. It determined that a sufficient cash bail and
conditions would ensure defendant’s appearance at court and the public’s safety. In determining
an appropriate bail, the court noted that defendant had only resided in Vermont for six months,
that the circumstances of the charged offense were particularly serious, and that defendant had
been charged with a number of offenses in California, the most recent of which occurred in May
2014. The court imposed bail in the amount of $75,000 and imposed a number of conditions.
Defendant could not make bail and was placed in pretrial detention.

        Subsequently, on October 28, 2016, defendant filed a bail-review motion to modify the
amount of bail imposed and his conditions of release. At the November 14 hearing on the bail-
review motion, defendant presented no additional evidence; instead, defendant claimed that
“particularized findings” were required to continue holding defendant on such a “high amount” of
bail. In addition, defendant argued that a residential treatment center was a less restrictive,
nonmonetary option.

        In its November 23, 2016 order, the trial court reduced defendant’s bail to $25,000 and
added an additional condition requiring that defendant could only be released to a person or
organization approved in advance by the court. In its analysis, the court reiterated that defendant
had no right to bail and noted that defendant presented no evidence to counter the earlier court’s
“conclusion that defendant presents a risk of flight because of the seriousness of the charges, the
sentencing exposure he faces if convicted, and his relative lack of ties to Vermont.” Despite this,
the court determined that the length of pretrial incarceration warranted a reduction in bail in light
of the statutory requirement that it be the “least restrictive” combination of bail and conditions
available to the court. The court then reduced defendant’s bail to $25,000 and imposed the
additional condition that defendant could only be released to a person or organization, approved
in advance by the court, who accepted ongoing twenty-four responsibility for defendant. The court
equated this condition with the pretrial detention administered by the Department of Corrections
(DOC), as defined in 13 V.S.A. § 7554b, and noted that such pretrial release “is a preferable
alternative in almost all instances such as this.” Defendant could not make this reduced bail and
he remains in pretrial custody.

        He now appeals to this Court, principally arguing that the $25,000 bail is excessive because
the severity of defendant’s charges acted as the sole basis for imposing the bail amount and the
court did not make articulated findings for imposing bail. In addition, defendant claims that the
imposition of bail without considering either defendant’s ability to pay or a less restrictive means
of ensuring his appearance violated due process.

         As described above, although both trial courts concluded that defendant had no right to
bail, they elected to impose bail and conditions of release. A trial court “has the discretion to allow
bail even where . . . defendant is not entitled to it.” State v. Pellerin, 2010 VT 26, ¶ 13, 187 Vt.
482 (quotation omitted). This Court’s review in such a case is narrow: as long as “defendant is
provided an opportunity to be heard[,] . . . our review of this issue is strictly limited to whether
there was an abuse of discretion.” Id. This Court shall affirm the trial court’s decisions regarding
conditions of release “if [the order] is supported by the proceedings below.” 13 V.S.A. § 7556(c).

       “The purpose of bail, as presently constitutionally mandated, is to assure the defendant’s
attendance in court.” State v. Pray, 133 Vt. 537, 541 (1975). “Where there is sufficient evidence
to demonstrate a substantial risk that a defendant will not show up for trial, conditions, monetary
or otherwise, to insure his return are indicated.” State v. Roessell, 132 Vt. 634, 636 (1974) (per
curiam). A “defendant need not be capable of meeting bail in order for the amount to be supported


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by the record.” State v. Duff, 151 Vt. 433, 436 (1989). When considering the evidence relating
to a defendant’s risk of nonappearance, 13 V.S.A. § 7554 directs the court to consider “the
seriousness of the offense charged and the number of offenses with which the person is charged,”
id. § 7554(a)(1), as well as the following:

                  [T]he nature and circumstances of the offense charged, the weight
                 of the evidence against the accused, the accused’s family ties,
                 employment, financial resources, character and mental condition,
                 the length of residence in the community, record of convictions, and
                 record of appearance at court proceedings or of flight to avoid
                 prosecution or failure to appear at court proceedings.

Id. § 7554(b).

        It is plain from the trial court’s proceedings that the court did not abuse its discretion when
it set defendant’s bail at $25,000. The court considered the applicable § 7554 factors and
concluded that defendant presented a risk of flight. For example, the court highlighted the
seriousness of the charges, the sentencing exposure defendant faced if convicted, and defendant’s
relative lack of ties to Vermont. The court acknowledged that defendant has a brother in Vermont,
but noted that this fact was counterbalanced by defendant’s brief time in Vermont and his lack of
stable employment. The court also pointed to defendant’s previous convictions in California for
criminal conduct similar to the current charges he faces. Finally, the court noted that the prior
court’s bail analysis remained persuasive, which established that the evidence of guilt was great.

        In addition to these factors, the court considered defendant’s ability to meet bail, measured
by the passage of time. The court noted that no evidence aside from the passage of time had been
presented to demonstrate either defendant’s ability to pay or any particular bail amount. But the
court concluded that defendant’s inability to meet bail for over a year supported an inference that
bail should be reduced.

         This analysis is sufficient under § 7554 and this Court’s case law. Nothing in § 7554
suggests that a trial court must make particularized findings regarding a defendant’s ability to pay;
rather, the various factors must be evaluated as a whole to ensure the least restrictive means of
ensuring a defendant’s appearance in court. Similarly, the findings the court made in this case are
distinct from the findings in State v. Duff. In Duff, the “sole support for the high cash bail
requirement” was that the defendant was “charged with a very serious crime and face[d] a long
period of incarceration.” 151 Vt. at 435. Unlike this case, the trial court in Duff did not make any
additional findings regarding the defendant’s ties to the area, his prior convictions, or his
employment. Id.; compare State v. Gould, No. 2016-304, 2016 WL 5110144, *3 (Vt. Sup. Ct.
Sept. 2, 2016) (unpub. mem.) (reversing and remanding where court only made findings as to
accumulation and seriousness of charges, not risk of nonappearance), with State v. Williams, 2014-
211, 2014 WL 5325712, *2 (Vt. Sup. Ct. July 1, 2014) (unpub. mem.) (upholding “somewhat
arbitrary” $25,000 bail because court considered relevant factors relating to risk of flight). The
court did not abuse its discretion when it considered defendant’s risk of flight based on the factors
listed in § 7554, weighed those factors with defendant’s inability to meet the $75,000 bail for over
a year, and, consequently, reduced defendant’s bail.



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         On the other hand, the trial court’s imposition of the additional condition indicates concerns
that defendant is not being held in the least restrictive pretrial detention. The court stated that the
condition was imposed as an equivalent of the pretrial custody described under 13 V.S.A. § 7554b
and, thus, the court contemplated defendant’s placement in a less restrictive pretrial option than
jail. But defendant’s counsel represented to this Court that the DOC would not release defendant
to a less restrictive pretrial detention, such as a residential treatment program or home detention,
if the court imposed any bail.* This alleged DOC policy is directly at odds with § 7554b(a), which
states that “[a] defendant who is on home detention shall remain in the custody of [DOC]” and, by
implication, shall not have to make bail. See State v. Whiteway, 2014 VT 34, 196 Vt. 629 (mem.)
(“We can determine, therefore, that the Legislature intended to create a sort of hybrid pretrial
program, in which a defendant might be ‘released’ from the traditional incarceration but confined
in a home, ‘in the custody of the commissioner’ of the DOC.”). Thus, the matter is remanded for
the trial court to determine in the first instance if the alleged DOC policy regarding bail prevents
defendant from being placed in the least restrictive pretrial detention. Without such analysis, the
additional condition imposed would appear impossible to achieve. We assume the court imposed
the condition believing it could be accomplished.

       Affirmed in part; remanded in part.


                                                  FOR THE COURT:



                                                  Marilyn S. Skoglund, Associate Justice




       *
           In this case, release to home to detention might be particularly difficult because,
according to defendant’s counsel, defendant’s brother (his only relative in Vermont) has refused
to supervise defendant unless he undergoes treatment first.


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