State v. Jason Muxlow

ENTRY ORDER

2023 VT 27

SUPREME COURT DOCKET NO. 23-AP-118

MAY TERM, 2023

State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Windham Unit,
} Criminal Division
}
Jason Muxlow } DOCKET NO. 21-CR-08525
}
Trial Judge: Jennifer Barrett

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

¶ 1. Defendant appeals from the criminal division’s denial of his application for home
detention under 13 V.S.A. § 7554b. Defendant argues that (1) the criminal division improperly
ceded its authority to the Department of Corrections (DOC) by refusing to conduct a home-
detention review and (2) the DOC, charged with administering the home-detention program, id.
§ 7554b(a), exceeded its authority in refusing to approve defendant’s proposed residence for home
detention. Because § 7554b’s plain language requires the criminal division to consider an
applicant’s fitness for home detention upon receipt of a report from the DOC approving a proposed
residence, and no such report was furnished here, we affirm.

¶ 2. Defendant was arrested in October 2021 and charged with five counts of possession
of child pornography under 13 V.S.A. § 2827(a). In the same month, the criminal division imposed
conditions of release, including monetary bail. Defendant was detained for not providing the
monetary bail and subsequently moved for release under the home-detention program, 13 V.S.A.
§ 7554b. After the criminal division requested that the DOC review defendant’s home-detention
application under § 7554b(b) in December 2022, the DOC determined that defendant’s proposed
residence did not “meet the necessary requirements to allow the [DOC] to supervise the defendant
on home detention.” The criminal division denied defendant’s application for home detention on
the record during a home-detention motion hearing on February 14, 2023. On March 8, defendant
moved the criminal division to reconsider its denial of his home-detention request. On March 28,
the criminal division denied defendant’s reconsideration motion, noting that “[u]nder the plain
language of the home detention statute the court will only consider the appropriateness of home
detention once an address has been approved” by the DOC. On April 6, defendant appealed the
denial of his home-detention application to a single Justice of this Court, who referred it to the full
Court for consideration after an initial, single-Justice hearing on April 21.
¶ 3. Review of the controlling statute, 13 VSA § 7554b, guides our analysis. “In
construing a statute, our paramount goal is to effectuate the Legislature’s intent as evidenced by
the plain, ordinary meaning of the language used.” Murdoch v. Town of Shelburne, 2007 VT 93,
¶ 5, 182 Vt. 587, 939 A.2d 458 (mem.) (quotation omitted). “[I]f this language is clear and
unambiguous, we enforce the statute according to its terms.” Wool v. Off. of Pro. Regul., 2020
VT 44, ¶ 22, 212 Vt. 305, 236 A.3d 1250 (quotation omitted). “Out of respect for the expertise
and informed judgment of agencies, and in recognition of this Court’s proper role in the separation
of powers, we accord agency decisions substantial deference.” In re Acorn Energy Solar 2, LLC,
2021 VT 3, ¶ 22, 214 Vt. 73, 251 A.3d 899 (quotation omitted). Accordingly, “[w]e employ a
deferential standard of review [for] both an agency’s interpretation of a statute within its area of
expertise . . . and an agency’s interpretation of its own regulations.” Id. (citation omitted)
(quotations and brackets omitted). Finally, this Court will only “overturn an agency’s
interpretation of a statute if there is a compelling indication of an error or if the interpretation is
unjust or unreasonable.” Id. ¶ 23 (quotations omitted).

¶ 4. Section 7554b of Title 13 provides, in relevant part and with exceptions not
pertinent here, that “the status of a defendant who is detained pretrial in a correctional facility for
inability to pay bail after bail has been set by the court may be reviewed by the court to determine
whether the defendant is appropriate for home detention” upon request from the court, the DOC,
or defendant. Section 7554b provides, further, that “[t]he review shall be scheduled upon the
court’s receipt of a report from the [DOC] determining that the proposed residence is suitable for
the use of electronic monitoring” and that, “after a hearing, the court may order that the defendant
be released to the Home Detention Program, provided that the court finds placing the defendant
on home detention will reasonably assure his or her appearance in court when required and the
proposed residence is appropriate for home detention.” Id. If the DOC approves the residence,
the statute then enumerates certain factors that reviewing courts are to consider, including the
nature of the charged offense, a defendant’s prior convictions, and public-safety risks posed by a
defendant’s prospective home detention. Id.

¶ 5. The criminal division did not improperly cede its authority to the DOC by declining
to conduct a home-detention review where the DOC did not approve the proposed residence.
Section 7554b(b) says that “review shall be scheduled upon the court’s receipt of a report from
[the DOC] determining that the proposed residence is suitable.” “Use of the word ‘shall’ in a
statute generally means that the action is mandatory, as opposed to directory,” meaning
discretionary. Town of Victory v. State, 174 Vt. 539, 544, 814 A.2d 369, 376 (2002) (mem.). The
Legislature requires by clear and unambiguous language that a review hearing is to be scheduled
when the criminal division receives a report from the DOC indicating that a proposed residence is
suitable for home detention. In the absence of such a report, the criminal division lacks statutory
authority to review a defendant’s home-detention application, and it is only during such a review
that the criminal division may consider the factors enumerated in 13 V.S.A § 7554b. Because it
did not receive the requisite DOC approval report here, the criminal division properly denied
defendant’s home-detention application and properly refrained from considering the § 7554b
factors.

¶ 6. The DOC did not exceed its statutory authority in denying defendant’s home-
detention application. Under § 7554b(b), the Legislature charged the DOC with “determin[ing]

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whether the defendant is appropriate for home detention.” Under the DOC’s home-detention
policy, it is tasked with “determining if the proposed residence supports the use of electronic
monitoring devices, either through cellular or landline telephone communications.” Vermont
Department of Corrections Directive 431.01, Home Detention Interim Memo 3,
https://outside.vermont.gov/dept/DOC/Policies/Home%20Detention%20Interim%20Memo.pdf
[https://perma.cc/7QAK-P83Y]. At the February 2023 home-detention motion hearing, the
criminal division credited testimony from a DOC probation officer indicating that the DOC would
be unable to electronically monitor defendant at his proposed residence. In refusing to approve
defendant’s home-detention application in accordance with both § 7554b and the DOC’s home-
detention policy because the DOC could not electronically monitor defendant, the DOC did not
exceed its statutory authority.

¶ 7. Defendant argues that the single-Justice decision in State v. Danforth resolves the
question presently before the Court. No. 2022-348, 2022 WL 18014669 (Vt. Dec. 30, 2022)
(unpub. mem.) [https://perma.cc/4864-25UE]. We disagree. That case dealt with the DOC’s
decision to revoke a defendant’s home detention after he was initially granted the same. In
Danforth, the Court reversed “the criminal division’s determination that it was without the
authority to review [the] DOC’s decision to revoke [the] defendant’s participation in the home-
detention program.” Id. at *5. Danforth addressed the criminal division’s authority to review the
DOC home-detention revocation, an issue legally distinct from criminal division review of a home-
detention application absent DOC approval of the proposed residence. Therefore, Danforth cannot
guide our analysis here.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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