State v. David Downing

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2020 VT 101

No. 2020-275

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Rutland Unit,
Criminal Division

David Downing October Term, 2020

David R. Fenster, J.

Rosemary Kennedy, Rutland County State’s Attorney, and L. Raymond Sun, Deputy
State’s Attorney, Rutland, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Joshua O’Hara, and
Mary Kay Lanthier Appellate Defenders, and Lena Capps, Law Clerk (On the Brief),
Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ.

¶ 1. REIBER, C.J. Defendant David Downing was held without bail prior to trial

under 13 V.S.A. § 7553a, which provides him with a right to bail if a trial is not held within sixty

days and the delay is not attributable to the defense under Chapter II, § 40 of the Vermont

Constitution and 13 V.S.A. § 7553b. He appeals, arguing that § 40 gives him a right to bail

immediately if there is no possibility that he can receive a trial within sixty days and that the sixty-

day period in § 40 begins from the time when he was first held without bail. We hold that

defendant can be held for sixty days even if there is no possibility he can be tried in that time and

that the sixty-day period began when defendant was first held without bail, and remand.
 ¶ 2. Defendant is charged with two counts of burglary into an occupied dwelling under

13 V.S.A. § 1201(c)(3)(A), simple assault under 13 V.S.A. § 1023(a)(1), unlawful mischief under

13 V.S.A. § 3701(c), violation of an abuse-prevention order under 13 V.S.A. § 1030(a), and

aggravated assault under 13 V.S.A. § 1024(a)(1). At his arraignment on September 2, 2020, the

court granted the State’s motion under 13 V.S.A. §7553a to hold defendant without bail pending

a weight-of-the-evidence hearing. Defendant requested that the court hold the hearing promptly.

The hearing was scheduled for October 1, 2020.

¶ 3. At the weight-of-the-evidence hearing, the court found that the evidence of guilt

was great. The court also found that the State proved, by clear and convincing evidence, that

defendant posed a substantial risk of physical violence to the victim and that no condition or

combination of conditions could reasonably prevent this violence. The court rejected defendant’s

argument that it had no authority to hold defendant without bail under § 7553a because there was

no possibility that a trial would be held within sixty days, as required by Chapter II, § 40 of the

Vermont Constitution and 13 V.S.A. § 7553b.1 The court also concluded that the sixty-day period

began on the date that it issued its decision on the weight of the evidence, rather than the date when

bail was initially denied. Accordingly, the court ordered defendant held without bail. At the

conclusion of the hearing, the court confirmed that no jury selection dates had been scheduled and

no juror summons had been distributed for Rutland County.2

1
For purposes of this appeal, the language of § 40 and § 7553a are substantially the same.
Therefore, § 7553a will be used to refer generally to both the statute and § 40 of the Vermont
Constitution.
2
Under Administrative Order 49, the Vermont Supreme Court formally suspended
criminal jury trials from March 16 to September 1, 2020. In its October 5, 2020 amendment to
Administrative Order 49, the Court explained that, although criminal jury trials were no longer
suspended, the COVID-19 pandemic continued to create challenges to holding jury trials. As such,
the Judiciary would be taking steps to increase the safety of jury trials before holding trials. See
October 5, 2020 Explanatory Note, A.O. 49.

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 ¶ 4. Defendant appealed to this Court, and a de novo hearing was held on October 15,

2020 by Justice Robinson under § 7556(d) and Vermont Rule of Appellate Procedure 9(b)(1)(A).

In that appeal, defendant argued that the weight of the evidence was not great as to the aggravated-

assault charge; that he could not be held without bail under § 7553a because there was no

possibility that his trial would begin within sixty days of being held; and that the sixty-day period

began when he was initially held without bail at arraignment, and not after the weight-of-the-

evidence hearing.

¶ 5. The Court first found that the weight of the evidence supporting the aggravated

assault charge was great.3 State v. Downing, 2020 VT 97, ¶ 14, __ Vt. __, __ A.3d __ (mem.).

The Court next considered defendant’s argument that because a jury trial was not likely to begin

within sixty days, defendant could not be held without bail during that period.4 The Court

concluded that § 7553a permits defendant to be held without bail for up to sixty days,

notwithstanding the court’s inability to bring defendant to trial within that time. Id. ¶ 15. It

determined that both the operative language and structure of the constitutional and statutory

provisions supported the interpretation that if a trial does not begin within sixty days, the remedy

is that the trial court must hold a bail hearing. Id. ¶ 26. Thus, the Court held that the sixty-day

rule limits the length of the pretrial detention but is not a condition precedent to issuing a hold-

without-bail order. Id. ¶ 24.

¶ 6. The Court next considered defendant’s argument that the sixty-day period began

when defendant was first held without bail—in this case, at defendant’s arraignment on September

2, 2020. The Court determined that it was bound by controlling precedent to conclude that the

3
Defendant does not challenge this finding in this appeal.
4
The order took “judicial notice of the fact that there is no plan to commence jury trials in
Rutland County” within sixty days after the trial court issued the hold-without-bail order following
its evidentiary hearing. Downing, 2020 VT 97, ¶ 16.
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period began when the trial court issued its decision following the weight-of-the-evidence hearing,

as held in State v. Lontine, 2016 VT 26, ¶ 9, 201 Vt. 637, 142 A.3d 1058 (mem.). Id. ¶ 29. This

appeal followed.5

¶ 7. On appeal, defendant argues that detention under § 7553a is dependent on the trial

court having the ability to bring defendant to trial within sixty days before ordering pretrial

detention. Otherwise, holding defendant without bail violates due process and constitutes

“punitive and arbitrary imprisonment.” Defendant also argues that the plain language of §§ 40

and 7553b command that the sixty-day period begins at the earliest point that a defendant is ordered

to be held without bail.

¶ 8. The meaning of the Vermont Constitution and corresponding statutes raise

questions of law that we consider de novo. State v. Lohr, 2020 VT 41, ¶ 4, __ Vt. __, 236 A.3d

1277. Because the constitutional provision at issue in this case and its statutory counterparts are

essentially identical, “we look primarily to the intent of the voters in adopting the amendment, but

we also consider the intent of the Legislature in adopting the statutory counterpart[s].” Id. ¶ 5

(quotation omitted). “When construing parallel constitutional and statutory provisions, we begin

with the familiar plain-language analysis.” Id.

¶ 9. The Vermont Constitution provides that:

A person accused of a felony, an element of which involves an act
of violence against another person, may be held without bail when
the evidence of guilt is great and the court finds, based upon clear
and convincing evidence, that the person’s release poses a
substantial threat of physical violence to any person and that no
condition or combination of conditions of release will reasonably
prevent the physical violence.

Vt. Const. ch. II, § 40; see also 13 V.S.A. § 7553a (mirroring this language). The Constitution

further provides that:

5
The parties stipulated to full-Court review of Justice Robinson’s decision. Justice
Robinson did not participate in this appeal.
4
 Except in the case of an offense punishable by death or life
imprisonment, if a person is held without bail prior to trial, the trial
of the person shall be commenced not more than 60 days after bail
is denied. If the trial is not commenced within 60 days and the delay
is not attributable to the defense, the court shall immediately
schedule a bail hearing and shall set bail for the person.

Vt. Const. ch. II, § 40; see also 13 V.S.A. § 7553b (mirroring this language).

¶ 10. The constitutional and legislative amendments were adopted in concert. The

Vermont electorate adopted § 40 by constitutional amendment in 1994, at which point the statutory

counterparts also became effective. See 1993, No. 143 (Adj. Sess.), §§ 2-3, 6. Before the voters

and the Legislature adopted these amendments, a person could be held without bail only when the

offense was punishable by life imprisonment and the evidence of guilt was great. See id. § 1. This

is because “[o]ur constitutional values require that liberty is and must remain the norm and

detention prior to trial or without trial is the carefully limited exception.” State v. Suave, 159 Vt.

566, 573, 621 A.2d 1296, 1300-01 (1993) (quotation omitted).

¶ 11. This amendment created another limited exception. We have explained that the

amendment was adopted by Vermont voters and the Vermont Legislature “to permit pretrial

detention, in appropriate circumstances, of those accused of violent crimes so as to prevent further

harm to the victims of the crimes and to others.” State v. Madison, 163 Vt. 360, 363, 658 A.2d

536, 539 (1995) (per curiam). At the same time, Vermont voters adopted the sixty-day rule to

“prevent undue and oppressive incarceration prior to trial,” among other purposes. Lohr, 2020 VT

41, ¶ 17. Thus, the sixty-day rule embodies “the balance the voters and the Legislature struck

between security and liberty.” Id. ¶ 14.

I. Ability to Hold Trial Within Sixty Days

¶ 12. We begin with defendant’s argument that if his trial cannot begin within sixty days,

he cannot be held without bail under § 7553a. We agree with the analysis and the conclusion of

the single-Justice order in Downing, 2020 VT 97, ¶¶ 15-28.

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 ¶ 13. Defendant argues that the Court’s interpretation violates due process by isolating

the operative language from the requirement to hold prompt trials. Defendant points to State v.

Madison, where we said that the amendment to § 40 protects due process rights by creating a

“requirement that persons held without bail on charges for crimes not punishable by life

imprisonment must be tried within sixty days after bail is denied.” 163 Vt. at 375, 658 A.2d at

546. Defendant reasons that if the court cannot commence trial within the sixty-day period, then

the Constitution prohibits defendant from being held without bail.

¶ 14. We disagree. Section 7553a entitles a defendant held without bail on charges for a

violent felony to a trial within sixty days, as Madison recognized. Id. The ability of the court to

commence trial within sixty days, however, is not a condition precedent to ordering pretrial

detention. Instead, the sixty-day rule serves as a limitation on the length of time that defendant

can be detained before trial. The text, structure, and purpose of the constitutional provision and

corresponding statutes compel this result.

¶ 15. To hold a defendant without bail, the operative language directs that the trial court

must find that the evidence of guilt is great, and, by clear and convincing evidence, that the

defendant’s release poses a substantial threat of violence to another person and that there are no

conditions that can reasonably prevent this violence. 13 V.S.A. § 7553a. Neither § 40 nor § 7553b

requires the court to find that it can likely hold a trial within 60 days before ordering pretrial

detention. Instead, the provisions command that the trial must begin within sixty days after bail is

denied, unless the delay is attributable to the defendant. If trial does not begin within that time

and the defense did not cause the delay, then the court must schedule a bail hearing. Lohr, 2020

VT 41, ¶ 16. The plain language thus provides that the consequence of not holding a timely trial

is that defendant becomes bailable, and that consequence takes effect only after sixty days have

elapsed.

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 ¶ 16. The structure of the constitutional and statutory provisions reinforces this

conclusion. In § 40, the sixty-day rule and the consequence for its violation are found in the third

paragraph after the operative language directing the trial court’s initial analysis. Likewise, the

sixty-day rule and the consequence for its violation are codified at 13 V.S.A. § 7553b, a different

section than the operative language in § 7553a. In both instances, the structure of the constitutional

provision and the corresponding statutes indicate that the sixty-day rule limits the length of pretrial

detention, and does not support the conclusion that a court must schedule a bail hearing as soon as

it becomes sufficiently clear that trial will not commence within sixty days.

¶ 17. This conclusion accords with the purpose of the amendment and its statutory

counterparts. In the case of certain violent felonies, Vermont voters and the Legislature intended

to “permit pretrial detention, in appropriate circumstances, of those accused of violent crimes so

as to prevent further harm to the victims of the crimes and to others.” Madison, 163 Vt. at 363,

658 A.2d at 539. This detention is neither arbitrary nor punitive, as the conditions set forth in

§ 7553a ultimately require the State to prove by clear and convincing evidence that “there is a

manifest need for incarceration,” in order to protect the public. Lohr, 2020 VT 41, ¶ 14. Further,

this detention does not violate defendant’s due process rights. In exchange for this incarceration,

the voters provided a right to a trial within sixty days. If trial does not occur within sixty days, the

court must hold a bail hearing under § 7554, regardless of the risk to the public. The interplay

between these provisions balances public safety against defendant’s right to liberty. See Lohr,

2020 VT 41, ¶ 14.

II. Tolling of the Sixty-Day Period

¶ 18. We next address defendant’s argument regarding when the sixty-day period begins

to run. The relevant text provides that “if a person is held without bail prior to trial, the trial of the

person shall be commenced not more than 60 days after bail is denied.” Vt. Const. ch. II, § 40; 13

7
V.S.A. § 7553b(a). We conclude that this sixty-day period starts when defendant is first held

without bail, regardless of whether the trial court has made all of the findings in § 7553a.

¶ 19. To fully understand the issue presented here, it is important to understand how the

hold-without-bail process typically unfolds. After a defendant is charged, the State may move to

hold the defendant without bail under § 7553a, either immediately at arraignment or at a later date.

Section 7553a requires the court to find that the evidence of guilt is great and, by clear and

convincing evidence, that “the person’s release poses a substantial threat of physical violence to

any person and that no condition or combination of conditions of release will reasonably prevent

the physical violence.” 13 V.S.A. § 7553a. As a practical matter, when the State first moves to

hold a defendant without bail under § 7553a, there is typically a limited record from which the

trial court may make the requisite findings regarding the weight of the evidence, the risk defendant

poses, and the probability that conditions will prevent violence. Therefore, the trial court often

will postpone making a determination of the § 7553a factors and instead hold the defendant

pending a hearing, which is often referred to as a weight-of-the-evidence hearing. This process

also arises when the State seeks to hold a defendant without bail under 13 V.S.A. § 7553, which

allows a person to be held without bail when the offense is punishable by life imprisonment and

“the evidence of guilt is great.”

¶ 20. This Court has held that trial courts have discretion to order defendants to be held

temporarily without bail pending a hearing if probable cause exists. In State v. Passino, this Court

held that if a court finds probable cause that a defendant committed the charged offense, “the court

can hold [the] defendant charged with an offense punishable by life imprisonment without bail for

such time as is necessary to enable the parties to prepare for a full bail hearing and to make

appropriate motions.” 154 Vt. 377, 383, 577 A.2d 281, 285 (1990). In State v. Bickel, a single-

Justice order, the Court extended Passino’s holding to § 7553a and determined that a court can

hold a defendant without bail pending a weight-of-the-evidence hearing. 166 Vt. 633, 634, 698

8
A.2d 243, 243-244 (1997) (mem.); see also State v. Morey, No. 2007-421, 2007 WL 5313609, *2

(Vt. Nov. 1, 2007) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/

documents/eo07-421.bail.pdf [https://perma.cc/H6DW-2DNY] (confirming Bickel’s holding).

¶ 21. The question at issue here is whether a defendant’s right to trial or a bail hearing in

sixty days is measured from the date the court initially holds the defendant pending a hearing, if

one is deemed necessary, or from the date the court makes the findings required by § 7553a

following a weight-of-the-evidence hearing. Both the trial court and Justice Robinson concluded,

under Lontine, that the sixty-day period begins when the trial court makes all of the requisite

findings required by § 7553a, which usually happens after the weight-of-the-evidence hearing.

2016 VT 26, ¶ 9.6 In Lontine, a single specially assigned Justice concluded that “[t]he statutory

structure is sufficiently clear that the operative decision that triggers the sixty-day rule is the

decision following the evidentiary hearing required under § 7553a.” Id.

¶ 22. We hold today that Lontine was decided incorrectly and overrule that decision. The

language, history, and purpose of §§ 40 and 7553b compel a conclusion that a defendant is entitled

to trial or a bail hearing within sixty days “after bail is denied,” meaning when defendant is first

held without bail, regardless of whether the trial court has made all of the requisite findings

required under § 7553a.

¶ 23. This conclusion flows foremost from the language of the Constitution and the

statute, which provide: “Except in the case of an offense punishable by death or life imprisonment,

if a person is held without bail prior to trial, the trial of the person shall be commenced not more

than 60 days after bail is denied.” Vt. Const. ch. II, § 40; 13 V.S.A. § 7553b(a) (emphasis added).

“Whether we consider the intent of the constitutional amendment or the statute, we first look to

6
Justice Robinson’s order addresses the issue of the precedential effect of published
single-Justice decisions. Downing, 2020 VT 41, ¶ 36. This issue is not before this Court today,
and we decline to address it.
9
the plain meaning of the language in question.” Madison, 163 Vt. at 368, 658 A.2d at 541-42. To

determine the meaning of words used in the constitutional amendment, we give any word or phrase

“the common meaning of the language used.” Id. at 368, 658 A.2d at 542.

¶ 24. Here, the meaning of “after bail is denied” would commonly be understood to mean

the moment when a defendant does not have the capability of being released on bail. From a

defendant’s perspective, the preliminary confinement after arraignment is identical to the

confinement ordered after a weight-of-the-evidence hearing: in both instances, a defendant is

equally held without bail. Thus, common understanding would not interpret this phrase as the time

when the court has fully considered the factors listed in § 7553a and made the requisite findings.

The structure of the amendment supports this interpretation. Section 7553b became effective along

with § 7553a upon the adoption of the constitutional amendment to § 40. See 1993, No. 143 (Adj.

Sess.), §§ 2-3, 6. The Constitution and the statute could have stated that the sixty days run from

the date the court makes the requisite findings set forth in § 7553a, but they do not. Instead, the

language simply references the denial of bail.

¶ 25. The State counters that this construction conflicts with other language in the

Constitution. The phrase “after bail is denied” appears twice in § 40: in the sixty-day provision,

and in another provision that entitles all persons held without bail before trial to review before a

three-Justice panel of this Court “within seven days after bail is denied.”7 Vt. Const. ch. II, § 40.

The State argues that if the phrase “after bail is denied” is construed consistently throughout the

Constitution, this provision could be read to entitle defendants held without bail under § 7553a

7
This latter provision, codified in 13 V.S.A. § 7556(e), provides the only opportunity for
appellate review for defendants who are charged with offenses punishable by life imprisonment
under § 7553. Defendants held under § 7553a, on the other hand, have a right to appeal to a single
Justice of the Supreme Court for review de novo under § 7556(d). After, they can appeal that
single-Justice decision to a three-Justice panel of this Court under § 7556(e). See V.R.A.P. 9.

10
and § 7553 to appellate review seven days after arraignment and before an evidentiary hearing is

held, leaving the panel with no decision to review.

¶ 26. Even if we were to find an ambiguity for the reasons suggested by the State, the

purpose and history of the amendment support the construction derived from the plain meaning.

If the language of a statute or the Constitution are not clear on their face, we look to the history

and purpose of the amendment and statute to discern the intent of the voters and Legislature.8 See

State v. Pellerin, 2010 VT 26, ¶¶ 9-10, 187 Vt. 482, 996 A.2d 204 (considering history and context

of amendment’s adoption, as well as policy). The context of the adoption of the constitutional

amendment indicate that it was intended to be narrowly construed. Before voters adopted the

amendment, the state’s legal scheme governing bail forbade preventative detention except in cases

of offenses punishable by life imprisonment. See 1993, No. 143 (Adj. Sess.), § 1; see also State

v. Pray, 133 Vt. 537, 540-41, 346 A.2d 227, 229 (1975). Under the law in effect at that time, this

Court recognized that pretrial detention generally “undermines the presumption of innocence by

depriving a defendant of a fundamental value, the right to liberty, without an adjudication of guilt.”

Suave, 159 Vt. at 573, 621 A.2d at 1300 (1993) (quotation and alteration omitted). Thus, we

explained that any pretrial detention should be construed as a “carefully limited exception.” Id. at

573, 621 A.2d at 1301.

¶ 27. As we have emphasized, the sixty-day rule is a constitutional guarantee to a speedy

trial, or in the alternative, to become bailable under § 7554. Lohr, 2020 VT 41, ¶ 17. If the rule

8
This Court may also consider how other states have applied similar state constitutional
provisions. State v. Jewett, 146 Vt. 221, 227, 500 A.2d 233, 237 (1985). To the extent that other
states have constitutional provisions similar to § 40, they also support the notion that the operative
time begins when the defendant is first ordered to be held without bail. For example, Article 1,
§ 15 of the Michigan Constitution provides that if a person is held without bail, trial must
commence within ninety days “after the date on which admission to bail is denied” or the court
must hold a bail hearing. In a case addressing this provision, the Michigan Court of Appeals
measured the ninety-day window from the time the defendant was arraigned and ordered held
without bond. People v. Parker, 584 N.W.2d 753, 758 n.6 (Mich. Ct. App. 1998).
11
were interpreted to take effect only after a trial court makes the requisite § 7553a findings,

defendants held without bail preliminarily could be incarcerated for much longer than sixty days.

In this case, defendant was detained without bail for twenty-nine days before the trial court held a

weight-of-the-evidence hearing, after which the court made the requisite findings and continued

its hold-without-bail order. If that later decision triggered the start of the sixty days, then defendant

could ultimately be incarcerated for eighty-nine days before bail could be set, assuming that trial

will not timely commence. This inconsistency does not accord with the purpose of the Constitution

and the corresponding statutes, which is to give a narrow basis for holding a defendant without

bail.

¶ 28. While weight-of-the-evidence hearings have become a common practice, they do

not alter a defendant’s rights under § 40. We neither seek to disturb the common practice of

holding hearings to establish the evidence needed to make the findings under § 7553a, nor do we

prohibit trial courts from exercising discretion to order defendants held without bail before holding

an evidentiary hearing if one is necessary. However, if a trial court chooses to exercise this

discretion and orders preliminary pretrial detention, then “bail is denied” within the meaning of

§§ 40 and 7553b. Consequently, the sixty-day clock begins to run at that time.

Reversed and remanded for further proceedings consistent with this opinion; mandate to
issue forthwith.

FOR THE COURT:

Chief Justice

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